Subchapter A—Oil

SUBCHAPTER A—OIL

PARTS 200–201 [RESERVED] performance of his official duties or because of his official status. PART 202—PRODUCTION OR DIS- (b) For purposes of this subpart, the CLOSURE OF MATERIAL OR IN- term ‘‘Employee of the DOE’’ includes all officers and employees of the FORMATION United States appointed by, or subject to the supervision, jurisdiction, or con- Subpart A [Reserved] trol of, the Administrator of DOE. Subpart B—Production or Disclosure in Re- sponse to Subpoenas or Demands of § 202.22 Production or disclosure pro- Courts or Other Authorities hibited unless approved by appropriate DOE official. Sec. No employee or former employee of 202.21 Purpose and scope. 202.22 Production or disclosure prohibited the DOE shall, in response to a demand unless approved by appropriate DOE offi- of a court or other authority, produce cial. any material contained in the file of 202.23 Procedure in the event of a demand the DOE or disclose any information for production or disclosure. relating to material contained in the 202.24 Final action by the appropriate DOE files of the DOE, or disclose any infor- official. mation or produce any material ac- 202.25 Procedure where a decision concerning a demand is not made prior to quired as part of the performance of his the time a response to the demand is re- official duties or because of his official quired. status without prior approval of the 202.26 Procedure in the event of an adverse General Counsel of DOE. ruling. AUTHORITY: Freedom of Information Act, 5 § 202.23 Procedure in the event of a U.S.C. 552; Emergency Petroleum Allocation demand for production or disclo- Act of 1973, Pub. L. 93–159; Federal Energy sure. Administration Act of 1974, Pub. L. 93–275, (a) Whenever a demand is made upon E.O. 11790, 39 FR 23185. an employee or former employee of the DOE for the production of material or Subpart A [Reserved] the disclosure of information described in § 202.21(a), he shall immediately no- Subpart B—Production or Disclo- tify the Regional Counsel for the re- sure in Response to Sub- gion where the issuing authority is lo- poenas or Demands of Courts cated. The Regional Counsel shall im- or Other Authorities mediately request instructions from the General Counsel of DOE.

SOURCE: 39 FR 35472, Mar. 13, 1974, unless (b) If oral testimony is sought by the otherwise noted. demand, an affidavit, or, if that is not feasible, a statement by the party § 202.21 Purpose and scope. seeking the testimony or his attorney, (a) This subpart sets forth the proce- setting forth a summary of the testi- dures to be followed when a subpoena, mony desired, must be furnished for order, or other demand (hereinafter re- submission by the Regional Counsel to ferred to as a ‘‘demand’’) of a court or the General Counsel. other authority is issued for the production or disclosure of (1) any mate- § 202.24 Final action by the appro- rial contained in the files of the De- priate DOE official. partment of Energy (DOE), (2) any in- If the General Counsel approves a de- formation relating to material con- mand for the production of material or tained in the files of the DOE, or (3) disclosure of information, he shall so any information or material acquired notify the Regional Counsel and such by any person while such person was an other persons as circumstances may employee of the DOE as a part of the warrant.

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§ 202.25 Procedure where a decision 205.13 Where to file. concerning a demand is not made 205.14 Ratification of prior directives, or- prior to the time a response to the ders, and actions. demand is required. 205.15 Public docket room. If response to the demand is required Subparts B–E [Reserved] before the instructions from the Gen- eral Counsel are received, a U.S. attor- Subpart F—Interpretation ney or DOE attorney designated for the 205.80 Purpose and scope. purpose shall appear with the employee 205.81 What to file. or former employee of the DOE upon 205.82 Where to file. whom the demand has been made, and 205.83 Contents. shall furnish the court or other author- 205.84 DOE evaluation. ity with a copy of the regulations con- 205.85 Decision and effect. tained in this subpart and inform the 205.86 Appeal. court or other authority that the de- Subparts G–J [Reserved] mand has been, or is being, as the case may be, referred for the prompt consid- Subpart K—Rulings eration of the appropriate DOE official and shall respectfully request the court 205.150 Purpose and scope. or authority to stay the demand pend- 205.151 Criteria for issuance. 205.152 Modification or rescission. ing receipt of the requested instruc- 205.153 Comments. tions. 205.154 Appeal.

§ 202.26 Procedure in the event of an Subpart L [Reserved] adverse ruling. If the court or other authority de- Subpart M—Conferences, Hearings, and clines to stay the effect of the demand Public Hearings in response to a request made in ac- 205.170 Purpose and scope. cordance with § 202.25 pending receipt 205.171 Conferences. of instructions, of if the court or other 205.172 Hearings. authority rules that the demand must 205.173 Public hearings. be complied with irrespective of instructions not to produce the material Subpart N [Reserved] or disclose the information sought, the Subpart O—Notice of Probable Violation, employee or former employee upon Remedial Order, Notice of Proposed whom the demand has been made shall Disallowance, and Order of Disallow- respectfully decline to comply with the ance demand. ‘‘United States ex rel Touhy v. Ragen,’’ 340 U.S. 462. 205.190 Purpose and scope. 205.191 [Reserved] 205.192 Proposed remedial order. PART 205—ADMINISTRATIVE 205.192A Burden of proof. PROCEDURES AND SANCTIONS 205.193 Notice of Objection. 205.193A Submission of ERA supplemental Subpart A—General Provisions information. 205.194 Participants; official service list. Sec. 205.195 Filing and service of all submissions. 205.1 Purpose and scope. 205.196 Statement of objections. 205.2 Definitions. 205.197 Response to statement of objections; 205.3 Appearance before the DOE or a State reply. Office. 205.198 Discovery. 205.4 Filing of documents. 205.198A Protective order. 205.5 Computation of time. 205.199 Evidentiary hearing. 205.6 Extension of time. 205.199A Hearing for the purpose of oral ar- 205.7 Service. gument only. 205.8 Subpoenas, special report orders, 205.199B Remedial order. oaths, witnesses. 205.199C Appeals of remedial order to FERC. 205.9 General filing requirements. 205.199D–205.199E [Reserved] 205.10 Effective date of orders. 205.199F Ex parte communications. 205.11 Order of precedence. 205.199G Extension of time; Interim and An- 205.12 Addresses for filing documents with cillary Orders. the DOE. 205.199H Actions not subject to administrative appeal. 6

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205.199I Remedies. REPORT OF MAJOR ELECTRIC UTILITY SYSTEM 205.199J Consent order. EMERGENCIES 205.350 General purpose. Subparts P–T [Reserved] 205.351 Reporting requirements. 205.352 Information to be reported. Subpart U—Procedures for Electricity 205.353 Special investigation and reports. Export Cases EMERGENCY INTERCONNECTION OF ELECTRIC 205.260 Purpose and scope. FACILITIES AND THE TRANSFER OF ELEC- 205.261–205.269 [Reserved] TRICITY TO ALLEVIATE AN EMERGENCY 205.270 Off-the-record communications. SHORTAGE OF ELECTRIC POWER 205.370 Applicability. Subpart V—Special Procedures for 205.371 Definition of emergency. Distribution of Refunds 205.372 Filing procedures; number of copies. 205.373 Application procedures. 205.280 Purpose and scope. 205.374 Responses from ‘‘entities’’ des- 205.281 Petition for implementation of spe- ignated in the application. cial refund procedures. 205.375 Guidelines defining inadequate fuel 205.282 Evaluation of petition by the Office or energy supply. of Hearings and Appeals. 205.376 Rates and charges. 205.283 Applications for refund. 205.377 Reports. 205.284 Processing of applications. 205.378 Disconnection of temporary facili- 205.285 Effect of failure to file a timely ap- ties. plication. 205.379 Application for approval of the in- 205.286 Limitations on amount of refunds. stallation of permanent facilities for 205.287 Escrow accounts, segregated funds emergency use only. and other guarantees. AUTHORITY: Emergency Petroleum Alloca- 205.288 Interim and ancillary orders. tion Act of 1973, Pub. L. 93–159; Federal En- ergy Administration Act of 1974, Pub. L. 93– Subpart W—Electric Power System Permits 275 (88 Stat. 96; E.O. 11790, 39 FR 23185); 42 and Reports; Applications; Administra- U.S.C. 7101 et seq., unless otherwise noted. tive Procedures and Sanctions SOURCE: 39 FR 35489, Oct. 1, 1974, unless otherwise noted. APPLICATION FOR AUTHORIZATION TO TRANS- MIT ELECTRIC ENERGY TO A FOREIGN COUN- TRY Subpart A—General Provisions 205.300 Who shall apply. § 205.1 Purpose and scope. 205.301 Time of filing. 205.302 Contents of application. This part establishes the procedures 205.303 Required exhibits. to be utilized and identifies the sanc- 205.304 Other information. tions that are available in proceedings 205.305 Transferability. before the Department of Energy and 205.306 Authorization not exclusive. State Offices, in accordance with parts 205.307 Form and style; number of copies. 209 through 214 of this chapter. Any ex- 205.308 Filing schedule and annual reports. ception, exemption, appeal, stay, modi- 205.309 Filing procedures and fees. fication, recession, redress or resolution of private grievance sought under APPLICATION FOR PRESIDENTIAL PERMIT AU- THORIZING THE CONSTRUCTION, CONNECTION, the authority of 42 U.S.C. 7194 shall be OPERATION, AND MAINTENANCE OF FACILI- governed by the procedural rules set TIES FOR TRANSMISSION OF ELECTRIC EN- forth in 10 CFR part 1003. ERGY AT INTERNATIONAL BOUNDARIES [61 FR 35114, July 5, 1996] 205.320 Who shall apply. 205.321 Time of filing. § 205.2 Definitions. 205.322 Contents of application. The definitions set forth in other 205.323 Transferability. parts of this chapter shall apply to this 205.324 Form and style; number of copies. part, unless otherwise provided. In ad- 205.325 Annual report. dition, as used in this part, the term: 205.326 Filing procedures and fees. 205.327 Other information. Action means an order, interpreta- 205.328 Environmental requirements for tion, notice of probable violation or Presidential Permits—Alternative 1. ruling issued, or a rulemaking under- 205.329 Environmental requirements for taken by the DOE or, as appropriate, Presidential Permits—Alternative 2. by a State Office.

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Adjustment means a modification of cludes the DOE National Office and Re- the base period volume or other meas- gional Offices. ure of allocation entitlement in ac- FEAA means the Federal Energy Ad- cordance with part 211 of this chapter. ministration Act of 1974 (Pub. L. 93– Aggrieved, for purposes of administra- 275). tive proceedings, describes and means a Federal legal holiday means New person with an interest sought to be Year’s Day, Washington’s Birthday, protected under the FEAA, EPAA, or Memorial Day, Independence Day, Proclamation No. 3279, as amended, Labor Day, Columbus Day, Veterans’ who is adversely affected by an order Day, Thanksgiving Day, Christmas or interpretation issued by the DOE or Day, and any other day appointed as a a State Office. national holiday by the President or Appropriate Regional Office or appro- the Congress of the United States. priate State Office means the office lo- Interpretation means a written state- cated in the State or DOE region in ment issued by the General Counsel or which the product will be physically his delegate or Regional Counsel, in re- delivered. sponse to a written request, that ap- Assignment means an action desig- plies the regulations, rulings, and nating that an authorized purchaser be other precedents previously issued, to supplied at a specified entitlement the particular facts of a prospective or level by a specified supplier. completed act or transaction. Conference means an informal meet- Notice of probable violation means a ing, incident to any proceeding, be- written statement issued to a person tween DOE or State officials and any by the DOE that states one or more al- person aggrieved by that proceeding. leged violations of the provisions of Consent order means a document of this chapter or any order issued pursu- agreement between DOE and a person ant thereto. prohibiting certain acts, requiring the Order means a written directive or performance of specific acts or includ- verbal communication of a written di- ing any acts which DOE could prohibit rective, if promptly confirmed in writ- or require pursuant to § 205.195. ing, issued by the DOE or a State Of- Duly authorized representative means a fice. It may be issued in response to an person who has been designated to ap- application, petition or request for pear before the DOE or a State Office DOE action or in response to an appeal in connection with a proceeding on be- from an order, or it may be a remedial half of a person interested in or ag- order or other directive issued by the grieved by that proceeding. Such ap- DOE or a State Office on its own initia- pearance may consist of the submission tive. A notice of probable violation is of applications, petitions, requests, not an order. For purposes of this defi- statements, memoranda of law, other nition a ‘‘written directive’’ shall in- documents, or of a personal appear- clude telegrams, telecopies and similar ance, verbal communication, or any transcriptions. other participation in the proceeding. Person means any individual, firm, EPAA means the Emergency Petro- estate, trust, sole proprietorship, part- leum Allocation Act of 1973 (Pub. L. 93– nership, association, company, joint- 159). venture, corporation, governmental EPCA means the Energy Policy and unit or instrumentality thereof, or a Conservation Act (Pub. L. 94–163). charitable, educational or other insti- Exception means the waiver or modi- tution, and includes any officer, direc- fication of the requirements of a regu- tor, owner or duly authorized rep- lation, ruling or generally applicable resentative thereof. requirement under a specific set of Proceeding means the process and ac- facts. tivity, and any part thereof, instituted Exemption means the release from the by the DOE or a State Office, either on obligation to comply with any part or its own initiative or in response to an parts, or any subpart thereof, of this application, complaint, petition or re- chapter. quest submitted by a person, that may DOE means the Department of En- lead to an action by the DOE or a State ergy, created by the FEAA and in- Office.

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Remedial order means a directive (1) To have made false or misleading issued by the DOE requiring a person statements, either verbally or in writ- to cease a violation or to eliminate or ing; to compensate for the effects of a vio- (2) To have filed false or materially lation, or both. altered documents, affidavits or other Ruling means an official interpreta- writings; tive statement of general applicability (3) To lack the specific authority to issued by the DOE General Counsel and represent the person seeking a DOE or published in the FEDERAL REGISTER State Office action; or that applies the DOE regulations to a (4) To have engaged in or to be en- specific set of circumstances. gaged in contumacious conduct that State Office means a State Office of substantially disrupts a proceeding. Petroleum Allocation certified by the DOE upon application pursuant to part § 205.4 Filing of documents. 211 of this chapter. (a) Any document, including, but not Throughout this part the use of a limited to, an application, request, word or term in the singular shall in- complaint, petition and other docu- clude the plural and the use of the ments submitted in connection there- male gender shall include the female with, filed with the DOE or a State Of- gender. fice under this chapter is considered to be filed when it has been received by (Emergency Petroleum Allocation Act of 1973, Pub. L. 93–159, as amended, Pub. L. 93– the DOE National Office, a Regional 511, Pub. L. 94–99, Pub. L. 94–133, Pub. L. 94– Office or a State Office. Documents 163, and Pub. L. 94–385; Federal Energy Ad- transmitted to the DOE must be administration Act of 1974, Pub. L. 93–275, as dressed as required by § 205.12. All docu- amended, Pub. L. 94–385; Energy Policy and ments and exhibits submitted become Conservation Act, Pub. L. 94–163, as amend- part of an DOE or a State Office file ed, Pub. L. 94–385; E.O. 11790, 39 FR 23185; De- and will not be returned. partment of Energy Organization Act, Pub. (b) Notwithstanding the provisions of L. 95–91; E.O. 12009, 42 FR 46267) paragraph (a) of this section, an appeal, [39 FR 35489, Oct. 1, 1974, as amended at 40 FR a response to a denial of an appeal or 36555, Aug. 21, 1975; 40 FR 36761, Aug. 22, 1975; application for modification or recision 41 FR 36647, Aug. 31, 1976; 43 FR 14437, Apr. 6, in accordance with §§ 205.106(a)(3) and 1978] 205.135(a)(3), respectively, a reply to a notice of probable violation, the appeal § 205.3 Appearance before the DOE or a State Office. of a remedial order or remedial order for immediate compliance, a response (a) A person may make an appear- to denial of a claim of confidentiality, ance, including personal appearances or a comment submitted in connection in the discretion of the DOE, and par- with any proceeding transmitted by ticipate in any proceeding described in registered or certified mail and ad- this part on his own behalf or by a duly dressed to the appropriate office is con- authorized representative. Any applica- sidered to be filed upon mailing. tion, appeal, petition, request or com- (c) Hand-delivered documents to be plaint filed by a duly authorized rep- filed with the Office of Exceptions and resentative shall contain a statement Appeals shall be submitted to Room by such person certifying that he is a 8002 at 2000 M Street, NW., Washington, duly authorized representative, unless D.C. All other hand-delivered docu- a DOE form requires otherwise. Fal- ments to be filed with the DOE Na- sification of such certification will sub- tional Office shall be submitted to the ject such person to the sanctions stat- Executive Secretariat at 12th and ed in 18 U.S.C. 1001 (1970). Pennsylvania Avenue, NW., Wash- (b) Suspension and disqualification: ington, D.C. Hand-delivered documents The DOE or a State Office may deny, to be filed with a Regional Office shall temporarily or permanently, the privi- be submitted to the Office of the Re- lege of participating in proceedings, in- gional Administrator. Hand-delivered cluding oral presentation, to any indi- documents to be filed with a State Of- vidual who is found by the DOE— fice shall be submitted to the office of

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the chief executive officer of such of- § 205.6 Extension of time. fice. When a document is required to be (d) Documents received after regular filed within a prescribed time, an ex- business hours are deemed filed on the tension of time to file may be granted next regular business day. Regular by the office with which the document business hours for the DOE National is required to be filed upon good cause Office are 8 a.m. to 4:30 p.m. Regular shown. business hours for a Regional Office or a State Office shall be established inde- § 205.7 Service. pendently by each. (a) All orders, notices, interpretations or other documents required to § 205.5 Computation of time. be served under this part shall be (a) Days. (1) Except as provided in served personally or by registered or paragraph (b) of this section, in com- certified mail or by regular United puting any period of time prescribed or States mail (only when service is ef- allowed by these regulations or by an fected by the DOE or a State Office), order of the DOE or a State Office, the except as otherwise provided. day of the act, event, or default from (b) Service upon a person’s duly au- which the designated period of time be- thorized representative shall con- gins to run is not to be included. The stitute service upon that person. last day of the period so computed is to (c) Service by registered or certified be included unless it is a Saturday, mail is complete upon mailing. Official Sunday, or Federal legal holiday in United States Postal Service receipts which event the period runs until the from such registered or certified mail- end of the next day that is neither a ing shall constitute prima facie evi- Saturday, Sunday, nor a Federal legal dence of service. holiday. § 205.8 Subpoenas, special report or- (2) Saturdays, Sundays or inter- ders, oaths, witnesses. vening Federal legal holidays shall be (a) In this section the following excluded from the computation of time terms have the definitions indicated when the period of time allowed or pre- unless otherwise provided. scribed is 7 days or less. (1) ‘‘DOE Official’’ means the Sec- (b) Hours. If the period of time pre- retary of the Department of Energy, scribed in an order issued by the DOE the Administrator of the Economic or a State Office is stated in hours Regulatory Administration, the Ad- rather than days, the period of time ministrator of Energy Information Ad- shall begin to run upon actual notice of ministration, the General Counsel of such order, whether by verbal or writ- the Department of Energy, the Special ten communication, to the person di- Counsel for Compliance, the Assistant rectly affected, and shall run without Administrator for Enforcement, the Di- interruption, unless otherwise provided rector of the Office of Hearings and Ap- in the order, or unless the order is peals, or the duly authorized delegate stayed, modified, suspended or re- of any of the foregoing officials. scinded. When a written order is trans- (2) ‘‘SRO’’ means a Special Report mitted by verbal communication, the Order issued pursuant to paragraph (b) written order shall be served as soon of this section. thereafter as is feasible. (b) (1) In accordance with the provi- (c) Additional time after service by mail. sions of this section and as otherwise Whenever a person is required to per- authorized by law, a DOE Official may form an act, to cease and desist there- sign, issue and serve subpoenas; admin- from, or to initiate a proceeding under ister oaths and affirmations; take this part within a prescribed period of sworn testimony; compel attendance of time after issuance to such person of and sequester witnesses; control dis- an order, notice, interpretation or semination of any record of testimony other document and the order, notice, taken pursuant to this section; sub- interpretation or other document is poena and reproduce books, papers, served by mail, 3 days shall be added to correspondence, memoranda, contracts the prescribed period. agreements, or other relevant records

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or tangible evidence including, but not (2) Delivery of a copy of the docu- limited to, information retained in ment to a natural person may be made computerized or other automated sys- by: tems in possession of the subpoenaed (i) Handing it to the person; person. Unless otherwise provided by (ii) Leaving it at the person’s office Subpart O, the provisions of this sec- with the person in charge of the office; tion apply to subpoenas issued by the (iii) Leaving it at the person’s dwell- office of Hearings and Appeals with re- ing or usual place of abode with a per- spect to matters in proceedings before son of suitable age and discretion who it. resides there; (2) A DOE Official may issue a Spe- (iv) Mailing it to the person by reg- cial Report Order requiring any person istered or certified mail, at his last subject to the jurisdiction of the ERA known address; or to file a special report providing infor- (v) Any method that provides the mation relating to DOE regulations, person with actual notice prior to the including but not limited to written return date of the document. answers to specific questions. The SRO (3) Delivery of a copy of the docu- may be in addition to any other reports ment to a person who is not a natural required by this chapter. person may be made by: (3) The DOE Official who issues a sub- (i) Handing it to a registered agent of poena or SRO pursuant to this section, the person; for good cause shown, may extend the (ii) Handing it to any officer, direc- time prescribed for compliance with tor, or agent in charge of any office of the subpoena or SRO and negotiate and such person; approve the terms of satisfactory com- (iii) Mailing it to the last known ad- pliance. dress of any registered agent, officer, (4) Prior to the time specified for director, or agent in charge of any of- compliance, but in no event more than fice of the person by registered or cer- 10 days after the date of service of the tified mail, or subpoena or SRO, the person upon (iv) Any method that provides any whom the document was served may registered agent, officer, director, or file a request for review of the sub- agent in charge of any office of the per- poena or SRO with the DOE Official son with actual notice of the document who issued the document. The DOE Of- prior to the return date of the docu- ficial then shall forward the request to ment. his supervisor who shall provide notice (d)(1) A witness subpoenaed by the of receipt to the person requesting re- DOE shall be paid the same fees and view. The supervisor or his designee mileage as paid to a witness in the dis- may extend the time prescribed for trict courts of the United States. compliance with the subpoena or SRO (2) If in the course of a proceeding and negotiate and approve the terms of conducted pursuant to subpart M or O, satisfactory compliance. a subpoena is issued at the request of a (5) If the subpoena or SRO is not person other than an officer or agency modified or rescinded within 10 days of of the United States, the witness fees the date of the supervisor’s notice of and mileage shall be paid by the person receipt, (i) the subpoena or SRO shall who requested the subpoena. However, be effective as issued; and (ii) the per- at the request of the person, the wit- son upon whom the document was ness fees and mileage shall be paid by served shall comply with the subpoena the DOE if the person shows: or SRO within 20 days of the date of (i) The presence of the subpoenaed the supervisor’s notice of receipt, un- witness will materially advance the less otherwise notified in writing by proceeding; and the supervisor or his designee. (ii) The person who requested that (6) There is no administrative appeal the subpoena be issued would suffer a of a subpoena or SRO. serious hardship if required to pay the (c) (1) A subpoena or SRO shall be witness fees and mileage. The DOE Of- served upon a person named in the doc- ficial issuing the subpoena shall make ument by delivering a copy of the docu- the determination required by this sub- ment to the person named. section.

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(e) If any person upon whom a sub- the person whose privilege is being as- poena or SRO is served pursuant to this serted. section, refuses or fails to comply with (h)(1) If testimony is taken pursuant any provision of the subpoena or SRO, to a subpoena, the DOE Official shall an action may be commenced in the determine whether the testimony shall United States District Court to enforce be recorded and the means by which the subpoena or SRO. the testimony is recorded. (f) (1) Documents produced in re- (2) A witness whose testimony is response to a subpoena shall be accom- corded may procure a copy of his testi- panied by the sworn certification, mony by making a written request for under penalty of perjury, of the person a copy and paying the appropriate fees. to whom the subpoena was directed or his authorized agent that (i) a diligent However, the DOE official may deny search has been made for each docu- the request for good cause. Upon proper ment responsive to the subpoena, and identification, any witness or his attor- (ii) to the best of his knowledge, infor- ney has the right to inspect the official mation, and belief each document re- transcript of the witness’ own testi- sponsive to the subpoena is being pro- mony. duced unless withheld on the grounds (i) The DOE Official may sequester of privilege pursuant to paragraph (g) any person subpoenaed to furnish docu- of this section. ments or give testimony. Unless per- (2) Any information furnished in remitted by the DOE Official, neither a sponse to an SRO shall be accompanied witness nor his attorney shall be by the sworn certification under pen- present during the examination of any alty of perjury of the person to whom other witnesses. it was directed or his authorized agent (j)(1) Any witness whose testimony is who actually provides the information taken may be accompanied, rep- that (i) a diligent effort has been made resented and advised by his attorney as to provide all information required by follows: the SRO, and (ii) all information fur- (i) Upon the initiative of the attor- nished is true, complete, and correct ney or witness, the attorney may ad- unless withheld on grounds of privilege vise his client, in confidence, with re- pursuant to paragraph (g) of this section. spect to the question asked his client, (3) If any document responsive to a and if the witness refuses to answer subpoena is not produced or any infor- any question, the witness or his attor- mation required by an SRO is not fur- ney is required to briefly state the nished, the certification shall include a legal grounds for such refusal; and statement setting forth every reason (ii) If the witness claims a privilege for failing to comply with the subpoena to refuse to answer a question on the or SRO. grounds of self-incrimination, the wit- (g) If a person to whom a subpoena or ness must assert the privilege person- SRO is directed withholds any docu- ally. ment or information because of a claim (k) The DOE Official shall take all of attorney-client or other privilege, necessary action to regulate the course the person submitting the certification of testimony and to avoid delay and required by paragraph (f) of this sec- prevent or restrain contemptuous or tion also shall submit a written list of obstructionist conduct or contemp- the documents or the information tuous language. DOE may take actions withheld indicating a description of as the circumstances may warrant in each document or 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

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regard to any instances where any at- that person with any DOE office or torney refuses to comply with direc- State Office. tions or provisions of this section. (e) The same or related matters. A per- (Emergency Petroleum Allocation Act of son who files an application, petition, 1973, Pub. L. 93–159, as amended, Pub. L. 94– complaint, appeal or other request for 163, and Pub. L. 94–385; Federal Energy Ad- action by the DOE or a State Office ministration Act of 1974, Pub. L. 93–275, as shall state whether, to the best knowl- amended, Pub. L. 94–332, Pub. L. 94–385, Pub. edge of that person, the same or re- L. 95–70, and Pub. L. 95–91; Energy Supply lated issue, act or transaction has been and Environmental Coordination Act of 1974, Pub. L. 93–319, as amended; Energy Policy or presently is being considered or in- and Conservation Act, Pub. L. 94–163, as vestigated by any DOE office, other amended, Pub. L. 94–385, and Pub. L. 95–70; Federal agency, department or instru- Department of Energy Organization Act, mentality; or by a State Office, a state Pub. L. 95–91; E.O. 11790, 39 FR 23185; E.O. or municipal agency or court; or by 12009, 42 FR 46267) any law enforcement agency; includ- [44 FR 23201, Apr. 19, 1979] ing, but not limited to, a consideration or investigation in connection with § 205.9 General filing requirements. any proceeding described in this part. (a) Purpose and scope. The provisions In addition, the person shall state of this section shall apply to all docu- whether contact has been made by the ments required or permitted to be filed person or one acting on his behalf with with the DOE or with a State Office. any person who is employed by the (b) Signing. All applications, peti- DOE or any State Office with regard to tions, requests, appeals, comments or the same issue, act or transaction or a any other documents that are required related issue, act or transaction arising to be signed, shall be signed by the per- out of the same factual situation; the son filing the document or a duly au- name of the person contacted; whether thorized representative. Any applica- the contact was verbal or in writing; tion, appeal, petition, request, com- the nature and substance of the con- plaint or other document filed by a tact; and the date or dates of the con- duly authorized representative shall tact. contain a statement by such person certifying that he is a duly authorized (f) Request for confidential treatment. representative, unless an DOE form (1) If any person filing a document with other wise requires. (A false certifi- the DOE or a State Office claims that cation is unlawful under the provisions some or all the information contained of 18 U.S.C. 1001 (1970)). in the document is exempt from the (c) Labeling. An application, petition, mandatory public disclosure require- or other request for action by the DOE ments of the Freedom of Information or a State Office should be clearly la- Act (5 U.S.C. 552 (1970)), is information beled according to the nature of the ac- referred to in 18 U.S.C. 1905 (1970), or is tion involved (e.g., ‘‘Application for As- otherwise exempt by law from public signment’’) both on the document and disclosure, and if such person requests on the outside of the envelope in which the DOE or a State Office not to dis- the document is transmitted. close such information, such person (d) Obligation to supply information. A shall file together with the document a person who files an application, peti- second copy of the document from tion, complaint, appeal or other re- which has been deleted the information quest for action is under a continuing for which such person wishes to claim obligation during the proceeding to confidential treatment. The person provide the DOE or a State Office with shall indicate in the original document any new or newly discovered informa- that it is confidential or contains con- tion that is relevant to that pro- fidential information and may file a ceeding. Such information includes, statement specifying the justification but is not limited to, information re- for non-disclosure of the information garding any other application, peti- for which confidential treatment is tion, complaint, appeal or request for claimed. If the person states that the action that is subsequently filed by

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information comes within the excep- ing and financial reporting require- tion in 5 U.S.C. 552(b)(4) for trade se- ments. crets and commercial or financial information, such person shall include a § 205.12 Addresses for filing docu- statement specifying why such infor- ments with the DOE. mation is privileged or confidential. If (a) All applications, requests, peti- the person filing a document does not tions, appeals, reports, DOE or FEO submit a second copy of the document forms, written communications and with the confidential information de- other documents to be submitted to or leted, the DOE or a State Office may filed with the DOE National Office in assume that there is no objection to accordance with this chapter shall be public disclosure of the document in its addressed as provided in this section. entirety. The DOE National Office has facilities (2) The DOE or a State Office retains for the receipt of transmissions via the right to make its own determina- TWX and FAX. The FAX is a 3M full tion with regard to any claim of con- duplex 4 or 6 minute (automatic) ma- fidentiality. Notice of the decision by chine. the DOE or a State Office to deny such FAX Numbers TWX Numbers claim, in whole or in part, and an opportunity to respond shall be given to (202) 254–6175 ...... (701) 822–9454 a person claiming confidentiality of in- (202) 254–6461 ...... (701) 822–9459 formation no less than five days prior to its public disclosure. (1) Documents for which a specific address and/or code number is not pro- (g) Separate applications, petitions or vided in accordance with paragraphs requests. Each application, petition or (a)(2) through (7) of this section, shall request for DOE action shall be sub- be addressed as follows: Department of mitted as a separate document, even if Energy, Attn: (name of person to re- the applications, petitions, or requests ceive document, if known, or subject), deal with the same or a related issue, Washington, DC 20461. act or transaction, or are submitted in connection with the same proceeding. (2) Documents to be filed with the Of- fice of Exceptions and Appeals, as pro- § 205.10 Effective date of orders. vided in this part or otherwise, shall be addressed as follows. Office of Excep- Any order issued by the DOE or a tions and Appeals, Department of En- State Office under this chapter is effec- ergy, Attn: (name of person to receive tive as against all persons having ac- document, if known, and/or labeling as tual notice thereof upon issuance, in specified in § 205.9(c)), Washington, DC accordance with its terms, unless and 20461. until it is stayed, modified, suspended, (3) Documents to be filed with the Of- or rescinded. An order is deemed to be fice of General Counsel, as provided in issued on the date, as specified in the this part or otherwise, shall be ad- order, on which it is signed by an au- dressed as follows: Office of the Gen- thorized representative of the DOE or a eral Counsel, U.S. Department of En- State Office, unless the order provides ergy, Attn: (name of person to receive otherwise. document, if known, and labeling as specified in § 205.9(c)), 1000 Independ- § 205.11 Order of precedence. ence Avenue, Washington, DC 20585. (a) If there is any conflict or incon- (4) Documents to be filed with the Of- sistency between the provisions of this fice of Private Grievances and Redress, part and any other provision of this as provided in this part or otherwise, chapter, the provisions of this part shall be addressed as follows: Office of shall control with respect to procedure. Private Grievances and Redress, De- (b) Notwithstanding paragraph (a) of partment of Energy, Attn: (name of this section, subpart I of part 212 of person to receive document, if known this chapter shall control with respect and/or labeling as specified in to prenotification and reporting and § 205.9(c)), Washington, DC 20461. subpart J of part 212 of this chapter (5) All other documents filed, except shall control with respect to account- those concerning price (see paragraph

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(a)(6) of this section), those designated (b) All reports, applications, re- as DOE or FEO forms (see paragraph quests, notices, complaints, written (a)(7) of this section), and ‘‘Surplus communications and other documents Product Reports’’ (see paragraph (a)(8) to be submitted to or filed with an DOE of this section), but including those Regional Office in accordance with this pertaining to compliance and alloca- chapter shall be directed to one of the tion (adjustment and assignment) of al- following addresses, as appropriate: located products, are to be identified REGION 1 by one of the code numbers stated below and addressed as follows: Depart- Connecticut, Maine, Massachusetts, New ment of Energy, Codell, labeling as Hampshire, Rhode Island, Vermont; Re- specified in § 205.9(c), Washington, DC gional Office, Department of Energy, 150 Causeway Street, Boston, Massachusetts 20461. 02114.

CODE NUMBERS REGION 2

Code New Jersey, New York, Puerto Rico, Virgin Islands; Regional Office, Department of Product: Energy, 26 Federal Plaza, New York, New Crude oil ...... 10 York 10007. Naphtha and gas oil ...... 15 Propane, butane and natural gasoline ...... 25 REGION 3 Other products ...... 30 Bunker fuel ...... 40 Delaware, District of Columbia, Maryland, Residual fuel (nonutility) ...... 50 Pennsylvania, Virginia, West Virginia; Re- Motor gasoline ...... 60 gional Office, Department of Energy, Fed- Middle distillates ...... 70 eral Office Building, 1421 Cherry Street, Aviation fuels ...... 80 Philadelphia, Pennsylvania 19102. Submissions by specific entities: Electric utilities ...... 45 REGION 4 Department of Defense ...... 55 Alabama, Canal Zone, Florida, Georgia, Ken- (6) Documents pertaining to the price tucky, Mississippi, North Carolina, South of covered products, except those to be Carolina; Regional Office, Department of submitted to other offices as provided Energy, 1655 Peachtree Street NW., At- lanta, Georgia 30309. in this part, shall be addressed to the Department of Energy, Code 1000, Attn: REGION 5 (name of person to receive document, if Illinois, Indiana, Michigan, Minnesota, Ohio, known, and/or labeling as specified in Wisconsin; Regional Office, Department of § 205.9(c)), Washington, DC 20461. Energy, 175 West Jackson Street, Chicago, (7) Documents designated as DOE or Illinois 60604. FEO forms shall be submitted in accordance with the instructions stated REGION 6 in the form. Arkansas, Louisiana, New Mexico, Okla- (8) ‘‘Surplus Product Reports’’ shall homa, Texas; Regional Office, Department be submitted to the Department of En- of Energy, 212 North Saint Paul Street, Dallas, Texas 75201. ergy, Post Office Box 19407, Wash- ington, DC 20036. REGION 7 (9) Documents to be filed with the Di- Iowa, Kansas, Missouri, Nebraska; Regional rector of Oil Imports, as provided in Office, Department of Energy, Federal Of- this part or otherwise, shall be ad- fice Building, P.O. Box 15000, 112 East 12th dressed as follows: Director of Oil Im- Street, Kansas City, Missouri 64106. ports, Department of Energy, P.O. Box 7414, Washington, DC 20044. REGION 8 (10) Petitions for rulemaking to be Colorado, Montana, North Dakota, South filed with the Economic Regulatory Dakota, Utah, Wyoming; Regional Office, Administration National Office shall Department of Energy, Post Office Box be addressed as follows: Economic Reg- 26247, Belmar Branch, Denver, Colorado 80226. ulatory Administration, Attn: Assist- ant Administrator for Regulations and REGION 9 Emergency Planning (labeled as ‘‘Peti- American Samoa, Arizona, California, Guam, tion for Rulemaking,’’) 2000 M Street, Hawaii, Nevada, Trust Territory of the Pa- N.W., Washington, DC 20461. cific Islands; Regional Office, Department

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of Energy, 111 Pine Street, San Francisco, (8) The allocation and pricing of California 94111. other products pursuant to subpart K REGION 10 of part 211 and part 212 of this chapter; (9) An application for an exemption Alaska, Idaho, Oregon, Washington; Regional Office, Department of Energy, Federal Of- under subpart E of this part; requests fice Building, 909 First Avenue, Room 3098, for a rulemaking proceeding under sub- Seattle, Washington 98104. part L of this part or for the issuance of a ruling under subpart K of this part; (Emergency Petroleum Allocation Act of 1973, 15 U.S.C. 751 et seq., Pub. L. 93–159, as and petitions to the Office of Private amended, Pub. L. 93–511, Pub. L. 94–99, Pub. Grievances and Redress under subpart L. 94–133, Pub. L. 94–163, and Pub. L. 94–385; R of this part; Federal Energy Administration Act of 1974, (10) The pricing of products pursuant 15 U.S.C. 787 et seq., Pub. L. 93–275, as amend- to part 212 of this chapter, filed by a re- ed, Pub. L. 94–332, Pub. L. 94–385, Pub. L. 95– finer; and 70, and Pub. L. 95–91; Energy Policy and Con- servation Act, 42 U.S.C. 6201 et seq., Pub. L. (11) The allocation of crude oil and 94–163, as amended, Pub. L. 94–385, and Pub. other allocated products to meet De- L. 95–70; Department of Energy Organization partment of Defense needs pursuant to Act, 42 U.S.C. 7101 et seq., Pub. L. 95–91; E.O. part 211 of this chapter. 11790, 39 FR 23185; E.O. 12009, 42 FR 46267) (12) The allocation of crude oil and [39 FR 35489, Oct. 1, 1974, as amended at 40 FR other allocated products to be utilized 36555, Aug. 21, 1975; 45 FR 37684, June 4, 1980] as feedstock in a synthetic natural gas plant, pursuant to § 211.29. § 205.13 Where to file. (13) Allocations, fee-paid and fee-ex- (a) Except as otherwise specifically empt licenses issued pursuant to part provided in other subparts of this part, 213 of this chapter. all documents to be filed with the ERA (b) Applications by end-users and pursuant to this part shall be filed with wholesale purchasers for an allocation the appropriate ERA Regional Office under the state set-aside system in ac- (unless otherwise specified in part 211 cordance with § 211.17 shall be filed of this chapter), except that all docu- with the appropriate State Office. ments shall be filed with the ERA Na- (c) Applications to a State Office or a tional Office that relate to: DOE Regional Office shall be directed (1) The allocation and pricing of to the office located in the state or re- crude oil pursuant to subpart C of part gion in which the allocated product 211 and part 212 of this chapter; will be physically delivered. An appli- (2) Refinery yield controls pursuant cant doing business in more than one to subpart C of part 211 of this chapter; state or region must apply separately (3) The pricing of propane, butane to each State or region in which a and natural gasoline pursuant to part product will be physically delivered, 212 of this chapter and the allocation of unless the State Offices or Regional Of- butane and natural gasoline pursuant fices involved agree otherwise. to part 211 of this chapter; (4) The allocation and pricing of mid- [39 FR 35489, Oct. 1, 1974, as amended at 39 FR dle distillate fuels pursuant to subpart 36571, Oct. 11, 1974; 39 FR 39022, Nov. 5, 1974; G of part 211 and part 212 of this chap- 40 FR 28446, July 7, 1975; 40 FR 36555, Aug. 21, ter, filed by electric utilities; 1975; 44 FR 60648, Oct. 19, 1979] (5) The allocation and pricing of aviation fuel pursuant to subpart H of part § 205.14 Ratification of prior direc- 211 and part 212 of this chapter, filed by tives, orders, and actions. civil air carriers (except air taxi/com- All interpretations, orders, notices of mercial operators); probable violation or other directives (6) The allocation and pricing of re- issued, all proceedings initiated, and sidual fuel oil pursuant to subpart I of all other actions taken in accordance part 211 and part 212 of this chapter, with part 205 as it existed prior to the filed by electric utilities; effective date of this amendment, are (7) The allocation and pricing of hereby confirmed and ratified, and naphtha and gas oil pursuant to sub- shall remain in full force and effect as part J of part 211 and part 212 of this if issued under this amended part 205, chapter; unless or until they are altered,

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amended, modified or rescinded in ac- as a request for interpretation and cordance with the provisions of this processed as such. part. (Emergency Petroleum Allocation Act of 1973, Pub. L. 93–159, as amended, Pub. L. 93– § 205.15 Public docket room. 511, Pub. L. 94–99, Pub. L. 94–133, Pub. L. 94– There shall be established at the DOE 163, and Pub. L. 94–385, Federal Energy Ad- ministration Act of 1974, Pub. L. 93–275, as National Office, 12th and Pennsylvania amended, Pub. L. 94–385, Energy Policy and Avenue, NW., Washington, DC, a public Conservation Act, Pub. L. 94–163, as amend- docket room in which shall be made ed, Pub. L. 94–385; E.O. 11790, 39 FR 23185; De- available for public inspection and partment of Energy Organization Act, Pub. copying: L. 95–91; E.O. 12009, 42 FR 46267) (a) A list of all persons who have ap- [39 FR 35489, Oct. 1, 1974, as amended at 43 FR plied for an exception, an exemption, 14437, Apr. 6, 1978] or an appeal, and a digest of each appli- § 205.81 What to file. cation; (b) Each decision and statement set- (a) A person filing under this subpart ting forth the relevant facts and legal shall file a ‘‘Request for Interpreta- tion,’’ which should be clearly labeled basis of an order, with confidential in- as such both on the request and on the formation deleted, issued in response outside of the envelope in which the re- to an application for an exception or quest is transmitted, and shall be in exemption or at the conclusion of an writing and signed by the person filing appeal; the request. The person filing the re- (c) The comments received during quest shall comply with the general fil- each rulemaking proceeding, with a ing requirements stated in § 205.9 in ad- verbatim transcript of the public hear- dition to the requirements stated in ing if such a public hearing was held; this subpart. and (b) If the person filing the request (d) Any other information required wishes to claim confidential treatment by statute to be made available for for any information contained in the public inspection and copying, and any request or other documents submitted information that the DOE determines under this subpart, the procedures set should be made available to the public. out in § 205.9(f) shall apply. § 205.82 Where to file. Subparts B–E [Reserved] A request for interpretation shall be filed with the General Counsel or his Subpart F—Interpretation delegate or with the appropriate Re- gional Counsel at the address provided § 205.80 Purpose and scope. in § 205.12. (a) This subpart establishes the pro- (Emergency Petroleum Allocation Act of cedures for the filing of a formal re- 1973, Pub. L. 93–159, as amended, Pub. L. 93– quest for an interpretation and for the 511, Pub. L. 94–99, Pub. L. 94–133, Pub. L. 94– consideration of such request. Re- 163, and Pub. L. 94–385; Federal Energy Ad- ministration Act of 1974, Pub. L. 93–275, as sponses, which may include verbal or amended, Pub. L. 94–385; Energy Policy and written responses to general inquiries Conservation Act, Pub. L. 94–163, as amend- or to other than formal written re- ed, Pub. L. 94–385; E.O. 11790, 39 FR 23185; De- quests for interpretation filed with the partment of Energy Organization Act, Pub. General Counsel or his delegate or a L. 95–91; E.O. 12009, 42 FR 46267) Regional Counsel, are not interpreta- [39 FR 35489, Oct. 1, 1974, as amended at 43 FR tions and merely provide general infor- 14437, Apr. 6, 1978; 43 FR 17803, Apr. 26, 1978] mation. § 205.83 Contents. (b) A request for interpretation that includes, or could be construed to in- (a) The request shall contain a full clude an application for an exception and complete statement of all relevant or an exemption may be treated solely facts pertaining to the circumstances, act or transaction that is the subject of the request and to the DOE action

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sought. Such facts shall include the additional information is not sub- names and addresses of all affected permitted by the person requesting the in- sons (if reasonably ascertainable) and a terpretation, the DOE may refuse to full discussion of the pertinent provi- issue an interpretation. sions and relevant facts contained in (b) Criteria. (1) The DOE shall base an the documents submitted with the re- interpretation on the FEA and EPAA quest. Copies of all relevant contracts, and the regulations and published rul- agreements, leases, instruments, and ings of the DOE as applied to the spe- other documents shall be submitted cific factual situation. with the request. When the request per- (2) The DOE shall take into consider- tains to only one step of a larger inte- ation previously issued interpretations grated transaction, the facts, cir- dealing with the same or a related cumstances, and other relevant infor- issue. mation pertaining to the entire transaction must be submitted. § 205.85 Decision and effect. (b) The request for interpretation shall include a discussion of all rel- (a) An interpretation may be issued evant authorities, including, but not after consideration of the request for limited to, DOE rulings, regulations, interpretation and other relevant in- interpretations and decisions on ap- formation received or obtained during peals and exceptions relied upon to the proceeding. support the particular interpretation (b) The interpretation shall contain a sought therein. statement of the information upon which it is based and a legal analysis of § 205.84 DOE evaluation. and conclusions regarding the applica- (a) Processing. (1) The DOE may ini- tion of rulings, regulations and other tiate an investigation of any statement precedent to the situation presented in in a request and utilize in its evalua- the request. tion any relevant facts obtained by (c) Only those persons to whom an in- such investigation. The DOE may ac- terpretation is specifically addressed cept submissions from third persons and other persons upon whom the DOE relevant to any request for interpreta- serves the interpretation and who are tion provided that the person making directly involved in the same trans- the request is afforded an opportunity action or act may rely upon it. No per- to respond to all third person submis- son entitled to rely upon an interpreta- sions. In evaluating a request for inter- tion shall be subject to civil or crimi- pretation, the DOE may consider any nal penalties stated in subpart P of other source of information. The DOE this part for any act taken in reliance on its own initiative may convene a upon the interpretation, notwith- conference, if, in its discretion, it con- standing that the interpretation shall siders that such conference will ad- thereafter be declared by judicial or vance its evaluation of the request. other competent authority to be in- (2) The DOE shall issue its interpre- valid. tation on the basis of the information (d) An interpretation may be re- provided in the request, unless that in- scinded or modified at any time. Re- formation is supplemented by other in- scission or modification may be ef- formation brought to the attention of fected by notifying persons entitled to the General Counsel or a Regional rely on the interpretation that it is re- Counsel during the proceeding. The in- scinded or modified. This notification terpretation shall, therefore, depend shall include a statement of the rea- for its authority on the accuracy of the sons for the recision or modification factual statement and may be relied and, in the case of a modification, a re- upon only to the extent that the facts statement of the interpretation as of the actual situation correspond to modified. those upon which the interpretation (e) An interpretation is modified by a was based. subsequent amendment to the regula- (3) If the DOE determines that there tions or ruling to the extent that it is is insufficient information upon which inconsistent with the amended regula- to base a decision and if upon request tion or ruling.

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(f)(1) Any person aggrieved by an in- § 205.86 Appeal. terpretation may submit a petition for There is no administrative appeal of reconsideration to the General Counsel an interpretation. within 30 days of service of the interpretation from which the reconsider- (Emergency Petroleum Allocation Act of ation is sought. There has not been an 1973, Pub. L. 93–159, as amended, Pub. L. 93– 511, Pub. L. 94–99, Pub. L. 94–133, Pub. L. 94– exhaustion of administrative remedies 163, and Pub. L. 94–385, Federal Energy Ad- until a period of 30 days from the date ministration Act of 1974, Pub. L. 93–275, as of service of the interpretation has amended, Pub. L. 94–385, Energy Policy and elapsed without receipt by the General Conservation Act, Pub. L. 94–163, as amend- Counsel of a petition for reconsider- ed, Pub. L. 94–385; E.O. 11790, 39 FR 23185; De- partment of Energy Organization Act, Pub. ation or, if a petition for reconsider- L. 95–91; E.O. 12009, 42 FR 46267) ation of the interpretation has been filed in a timely manner, until that pe- [43 FR 14437, Apr. 6, 1978] tition has been acted on by the General Counsel. However, a petition to which Subparts G–J [Reserved] the General Counsel does not respond within 60 days of the date of receipt Subpart K—Rulings thereof, or within such extended time as the General Counsel may prescribe § 205.150 Purpose and scope. by written notice to the petitioner con- This subpart establishes the criteria cerned within that 60 day period, shall for the issuance of interpretative rul- be considered denied. ings by the General Counsel. All rul- (2) A petition for reconsideration ings shall be published in the FEDERAL may be summarily denied if— REGISTER. Any person is entitled to (i) It is not filed in a timely manner, rely upon such ruling, to the extent provided in this subpart. unless good cause is shown; or (ii) It is defective on its face for fail- § 205.151 Criteria for issuance. ure to state, and to present facts and (a) A ruling may be issued, in the dis- legal argument in support thereof, that cretion of the General Counsel, when- the interpretation was erroneous in ever there have been a substantial fact or in law, or that it was arbitrary number of inquiries with regard to or capricious. similar factual situations or a par- (3) The General Counsel may deny ticular section of the regulations. any petition for reconsideration if the (b) The General Counsel may issue a petitioner does not establish that— ruling whenever it is determined that (i) The petition was filed by a person it will be of assistance to the public in aggrieved by an interpretation; applying the regulations to a specific (ii) The interpretation was erroneous situation. in fact or in law; or (iii) The interpretation was arbitrary § 205.152 Modification or rescission. or capricious. The denial of a petition (a) A ruling may be modified or re- shall be a final order of which the peti- scinded by: tioner may seek judicial review. (1) Publication of the modification or rescission in the FEDERAL REGISTER; or (Emergency Petroleum Allocation Act of (2) A rulemaking proceeding in ac- 1973, Pub. L. 93–159, as amended, Pub. L. 93– cordance with subpart L of this part. 511, Pub. L. 94–99, Pub. L. 94–133, Pub. L. 94– (b) Unless and until a ruling is modi- 163, and Pub. L. 94–385, Federal Energy Ad- fied or rescinded as provided in para- ministration Act of 1974, Pub. L. 93–275, as graph (a) of this section, no person amended, Pub. L. 94–385, Energy Policy and Conservation Act, Pub. L. 94–163, as amend- shall be subject to the sanctions or ed, Pub. L. 94–385; E.O. 11790, 39 FR 23185; De- penalties stated in subpart P of this partment of Energy Organization Act, Pub. part for actions taken in reliance upon L. 95–91; E.O. 12009, 42 FR 46267) the ruling, notwithstanding that the ruling shall thereafter be declared by [39 FR 35489, Oct. 1, 1974, as amended at 43 FR judicial or other competent authority 14437, Apr. 6, 1978] to be invalid. Upon such declaration,

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no person shall be entitled to rely upon dence may be presented at the con- the ruling. ference, but will be treated as if submitted in the regular course of the pro- § 205.153 Comments. ceedings. A transcript of the con- A written comment on or objection ference will not usually be prepared. to a published ruling may be filed at However, the DOE in its discretion any time with the General Counsel at may have a verbatim transcript pre- the address specified in § 205.12. pared. (e) Because a conference is solely for § 205.154 Appeal. the exchange of views incident to a There is no administrative appeal of proceeding, there will be no formal re- a ruling. ports or findings unless the DOE in its discretion determines that such would Subpart L [Reserved] be advisable. Subpart M—Conferences, § 205.172 Hearings. Hearings, and Public Hearings (a) The DOE in its discretion may direct that a hearing be convened on its § 205.170 Purpose and scope. own initiative or upon request by a This subpart establishes the proce- person, when it appears that such hear- dures for requesting and conducting a ing will materially advance the pro- DOE conference, hearing, or public ceedings. The determination as to who hearing. Such proceedings shall be con- may attend a hearing convened under vened in the discretion of the DOE, this subpart shall be in the discretion consistent with the requirements of of DOE, but a hearing will usually not the FEAA. be open to the public. Where the hearing involves a matter arising under § 205.171 Conferences. part 213, the Director of Oil Imports (a) The DOE in its discretion may di- shall be notified as to its time and rect that a conference be convened, on place, in order that he or his represent- its own initiative or upon request by a ative may present views as to the issue person, when it appears that such con- or issues involved. ference will materially advance the (b) A hearing may only be requested proceeding. The determination as to in connection with an application for who may attend a conference convened an exception or an appeal. Such re- under this subpart shall be in the dis- quest may be by the applicant, appel- cretion of the DOE, but a conference lant, or any other person who might be will usually not be open to the public. aggrieved by the DOE action sought. (b) A conference may be requested in The request shall be in writing and connection with any proceeding of the shall include a specific showing as to DOE by any person who might be ag- why such hearing will materially ad- grieved by that proceeding. The re- vance the proceeding. The request shall quest may be made in writing or ver- be addressed to the DOE office that is bally, but must include a specific show- considering the application for an ex- ing as to why such conference will ma- ception or the appeal. terially advance the proceeding. The (c) The DOE will designate an agency request shall be addressed to the DOE official to conduct the hearing, and office that is conducting the pro- will specify the time and place for the ceeding. hearing. (c) A conference may only be con- (d) A hearing may only be convened vened after actual notice of the time, after actual notice of the time, place, place, and nature of the conference is and nature of the hearing is provided provided to the person who requested both to the applicant or appellant and the conference. to any other person readily identifiable (d) When a conference is convened in by the DOE as one who will be ag- accordance with this section, each per- grieved by the DOE action involved. son may present views as to the issue The notice shall include, as appro- or issues involved. Documentary evi- priate:

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(1) A statement that such person may clude a statement of the time, place, participate in the hearing; or and nature of the public hearing. (2) A statement that such person may (d) Interested persons may file a re- request a separate conference or hear- quest to participate in the public hearing regarding the application or appeal. ing in accordance with the instructions (e) When a hearing is convened in ac- in the notice published in the FEDERAL cordance with this section, each person REGISTER. The request shall be in writ- may present views as to the issue or ing and signed by the person making issues involved. Documentary evidence the request. It shall include a descrip- may be presented at the hearing, but tion of the person’s interest in the will be treated as if submitted in the issue or issues involved and of the an- regular course of the proceedings. A ticipated content of the presentation. transcript of the hearing will not usu- It shall also contain a statement ex- ally be prepared. However, the DOE in plaining why the person would be an its discretion may have a verbatim appropriate spokesperson for the par- transcript prepared. ticular view expressed. (f) The official conducting the hear- (e) The DOE shall appoint a presiding ing may administer oaths and affirma- officer to conduct the public hearing. tions, rule on the presentation of infor- An agenda shall be prepared that shall mation, receive relevant information, provide, to the extent practicable, for dispose of procedural requests, deter- the presentation of all relevant views mine the format of the hearing, and by competent spokespersons. otherwise regulate the course of the (f) A verbatim transcript shall be hearing. made of the hearing. The transcript, (g) Because a hearing is solely for the together with any written comments exchange of views incident to a pro- submitted in the course of the proceeding, there will be no formal reports ceeding, shall be made available for or findings unless the DOE in its dis- public inspection and copying in the cretion determines that such would be public docket room, as provided in advisable. § 205.15. (g) The information presented at the [39 FR 35489, Oct. 1, 1974, as amended at 40 FR public hearing, together with the writ- 36557, Aug. 21, 1975] ten comments submitted and other relevant information developed during § 205.173 Public hearings. the course of the proceeding, shall pro- (a) A public hearing shall be con- vide the basis for the DOE decision. vened incident to a rulemaking: (1) When the proposed rule or regula- Subpart N [Reserved] tion is likely to have a substantial impact on the Nation’s economy or large numbers of individuals or businesses; Subpart O—Notice of Probable or Violation, Remedial Order, (2) When the DOE determines that a Notice of Proposed Disallow- public hearing would materially ad- ance, and Order of Disallow- vance the consideration of the issue. A ance public hearing may be requested by any interested person in connection AUTHORITY: Emergency Petroleum Alloca- with a rulemaking proceeding, but tion Act of 1973, Pub. L. 93–159, as amended, shall only be convened on the initiative Pub. L. 93–511, Pub. L. 94–99, Pub. L. 94–133, of the DOE unless otherwise required Pub. L. 94–163, and Pub. L. 94–385, Federal by statute. Energy Administration Act of 1974, Pub. L. 93–275, as amended, Pub. L. 94–332, Pub. L. 94– (b) A public hearing may be convened 385, Pub. L. 95–70, Pub. L. 95–91; Energy Pol- incident to any proceeding when the icy and Conservation Act, Pub. L. 94–163, as DOE in its discretion determines that amended, Pub. L. 94–385, Pub. L. 95–70, De- such public hearing would materially partment of Energy Organization Act, Pub. advance the consideration of the issue. L. 95–91, as amended, Pub. L. 95–620; E.O. (c) A public hearing may only be con- 11790, 39 FR 23185; E.O. 12009, 42 FR 46267. vened after publication of a notice in SOURCE: 44 FR 7924, Feb. 7, 1979, unless oth- the FEDERAL REGISTER, which shall in- erwise noted.

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§ 205.190 Purpose and scope. shall promptly publish a notice in the (a) This subpart establishes the pro- FEDERAL REGISTER which states the cedures for determining the nature and person to whom the Proposed Remedial extent of violations of the DOE regula- Order is directed, his address, and the tions in parts 210, 211, and 212 and the products, dollar amounts, time period, procedures for issuance of a Notice of and geographical area specified in the Probable Violation, a Proposed Reme- Proposed Remedial Order. The notice dial Order, a Remedial Order, an In- shall indicate that a copy of the Pro- terim Remedial Order for Immediate posed Remedial Order with confidential Compliance, a Remedial Order for Im- information, if any, deleted may be ob- mediate Compliance, a Notice of Prob- tained from the ERA and that within 15 able Disallowance, a Proposed Order of days after the date of publication any Disallowance, an Order of Disallow- aggrieved person may file a Notice of ance, or a Consent Order. Nothing in Objection with the Office of Hearings these regulations shall affect the au- and Appeals of accordance with thority of DOE enforcement officials in § 205.193. The ERA shall mail copies of coordination with the Department of the FEDERAL REGISTER notice to all Justice to initiate appropriate civil or readily identifiable persons who are criminal enforcement actions in court likely to be aggrieved by issuance of at any time. the Proposed Remedial Order as a final (b) When any report required by the order. ERA or any audit or investigation dis- (d) The Proposed Remedial Order closes, or the ERA otherwise discovers, shall set forth the proposed findings of that there is reason to believe a viola- fact and conclusions of law upon which tion of any provision of this chapter, or it is based. It shall also include a dis- any order issued thereunder, has oc- cussion of the relevant authorities curred, is continuing or is about to which support the position asserted, in- occur, the ERA may conduct an including rules, regulations, rulings, in- quiry to determine the nature and ex- terpretations and previous decisions tent of the violation. A Remedial Order issued by DOE or its predecessor agen- or Order of Disallowance may be issued cies. The Proposed Remedial Order thereafter by the Office of Hearings shall be accompanied by a declaration and Appeals. The ERA may commence executed by the DOE employee pri- enforcement proceedings by serving a marily knowledgeable about the facts Notice of Probable Violation, a Notice of the case stating that, to the best of of Probable Disallowance, a Proposed declarant’s knowledge and belief, the Remedial Order, a Proposed Order of findings of fact are correct. Disallowance, or an Interim Remedial (e) The ERA may amend or withdraw Order for Immediate Compliance. a Proposed Remedial Order at its discretion prior to the date of service of a § 205.191 [Reserved] Statement of Objections in that proceeding. The date of service of the § 205.192 Proposed remedial order. amended documents shall be consid- (a) If the ERA finds, after the 30-day ered the date of service of the Proposed or other period authorized for reply to Remedial Order in calculating the time the Notice of Probable Violation, that periods specified in this part 205. a violation has occurred, is continuing, or is about to occur, it may issue a § 205.192A Burden of proof. Proposed Remedial Order, which shall (a) In a Proposed Remedial Order pro- set forth the relevant facts and law. ceeding the ERA has the burden of es- (b) The ERA may issue a Proposed tablishing a prima facie case as to the Remedial Order at any time it finds validity of the findings of fact and con- that a violation has occurred, is conclusions of law asserted therein. The tinuing, or is about to occur even if it ERA shall be deemed to meet this bur- has not previously issued a Notice of den by the service of a Proposed Reme- Probable Violation. dial Order that meets the requirements (c) The ERA shall serve a copy of the of § 205.192(d) and any supplemental in- Proposed Remedial Order upon the per- formation that may be made available son to whom it is directed. The ERA under § 205.193A.

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(b) Once a prima facie case has been fice of Hearings and Appeals to issue established, a person who objects to a the Proposed Remedial Order as a final finding of fact or conclusion of law in Remedial Order. the Proposed Remedial Order has the (f) In order to exhaust administrative burden of going forward with the evi- remedies with respect to a Remedial dence. Furthermore, the proponent of Order proceeding, a person must file a additional factual representations has timely Notice of Objection and State- the burden of going forward with the ment of Objections with the Office of evidence. Hearings and Appeals. (c) Unless otherwise specified by the Director of the Office of Hearings and § 205.193A Submission of ERA supple- Appeals or his designee, the proponent mental information. of an order or a motion or additional Within 20 days after service of a No- factual representations has the ulti- mate burden of persuasion. tice of Objection to a Proposed Reme- dial Order the ERA may serve, upon § 205.193 Notice of Objection. the person to whom the Proposed Re- (a) Within 15 days after publication medial Order was directed, supple- of the notice of a Proposed Remedial mental information relating to the cal- Order in the FEDERAL REGISTER any ag- culations and determinations which grieved person may file a Notice of Ob- support the findings of fact set forth in jection to the Proposed Remedial Order the Proposed Remedial Order. with the Office of Hearings and Ap- peals. The Notice shall be filed in du- § 205.194 Participants; official service plicate, shall briefly describe how the list. person would be aggrieved by issuance (a) Upon receipt of a Notice of Objec- of the Proposed Remedial Order as a tion, the Office of Hearings and Ap- final order and shall state the person’s peals shall publish a notice in the FED- intention to file a Statement of Objec- ERAL REGISTER which states the person tions. No confidential information to whom the Proposed Remedial Order shall be included in a Notice of Objec- is directed, his address and the prod- tion. The DOE shall place one copy of ucts, dollar amounts, time period, and the Notice in the Office of Hearings and geographical area specified in the Pro- Appeals Public Docket Room. posed Remedial Order. The notice shall (b) A person who fails to file a timely state that any person who wishes to Notice of Objection shall be deemed to participate in the proceeding must file have admitted the findings of fact and an appropriate request with the Office conclusions of law as stated in the Pro- of Hearings and Appeals. posed Remedial Order. If a Notice of (b) The Office that issued the Pro- Objection is not filed as provided by posed Remedial Order and the person paragraph (a) of this section, the Pro- to whom the Order is directed shall be posed Remedial Order may be issued as considered participants before the Of- a final order. fice of Hearings and Appeals at all (c) A person who files a Notice of Ob- stages of an enforcement proceeding. jection shall on the same day serve a Any other person whose interest may copy of the Notice upon the person to whom the Proposed Remedial Order is be affected by the proceeding may file directed, the DOE Office that issued a request to participate in the pro- the Proposed Remedial Order, and the ceeding with the Office of Hearings and DOE Assistant General Counsel for Ad- Appeals within 20 days after publica- ministrative Litigation. tion of the notice referred to in para- (d) The Notice shall include a certifi- graph (a) of this section. The request cation of compliance with the provi- shall contain sions of this section, the names and ad- (1) The person’s name, address, and dresses of each person served with a telephone number and similar informa- copy of the Notice, and the date and tion concerning his duly authorized manner of service. representative, if any; (e) If no person files a timely Notice (2) A detailed description of the per- of Objection, ERA may request the Of- son’s interest in the proceeding;

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(3) The specific reasons why the per- § 205.195 Filing and service of all sub- son’s active involvement in the pro- missions. ceeding will substantially contribute (a)(1) Statements of Objections, Re- to a complete resolution of the issues sponses to such Statements, and any to be considered in the proceeding; motions or other documents filed in (4) A statement of the position which connection with a proceeding shall the person intends to adopt in the pro- meet the requirements of § 205.9 and ceeding; and shall be filed with the Office of Hear- (5) A statement of the particular as- ings and Appeals in accordance with pects of the proceeding, e.g. oral argu- § 205.4. Unless otherwise specified, any ment, submission of briefs, or dis- participant may file a response to a covery, in which the person wishes to motion within five days of service. actively participate. (2) All documents shall be filed in du- (c) After considering the requests plicate, unless they contain confidential information, in which case they submitted pursuant to paragraph (b) of must be filed in triplicate. this section, the Office of Hearings and (3) If a person claims that any por- Appeals shall determine those persons tion of a document which he is filing who may participate on an active basis contains confidential information, in the proceeding and the nature of such information should be deleted their participation. Participants with from two of the three copies which are similar interests may be required to filed. One copy from which confidential consolidate their submissions and to information has been deleted will be appear in the proceeding through a placed in the Office of Hearings and Ap- common representative. peals Public Docket Room. (d) Within 30 days after publication (b)(1) Persons other than DOE offices of the notice referred to in paragraph shall on the date a submission is filed (a) of this section, the Office of Hear- serve each person on the official serv- ings and Appeals shall prepare an offi- ice list. Service shall be made in ac- cial service list for the proceeding. cordance with § 205.7 and may also be Within the same 30 day period the Of- made by deposit in the regular United fice of Hearings and Appeals shall mail States mail, properly stamped and ad- the official service list to all persons dressed, when accompanied by proof of who filed requests to participate. For service consisting of a certificate of good cause shown a person may be counsel or an affidavit of the person placed on the official service list as a making the service. If any filing argu- non-participant, for the receipt of doc- ably contains confidential information, uments only. An opportunity shall be a person may serve copies with the afforded to participants to oppose the confidential information deleted upon all persons on the official service list placement of a non-participant on the except DOE offices, which shall be official service list. served both an original filing and one (e) A person requesting to participate with deletions. after the period for submitting re- (2) A DOE office shall on the date it quests has expired must show good files a submission serve all persons on cause for failure to file a request with- the official service list, unless the fil- in the prescribed time period. ing arguably contains confidential in- (f) The Office of Hearings and Appeals formation. In that case the DOE office may limit the nature of a person’s par- shall notify the person to whom the in- ticipation in the proceeding, if it finds formation relates of the opportunity to that the facts upon which the person’s identify and delete the confidential in- request was based have changed or formation. The DOE Office may delay were incorrect when stated or that the the service of a submission containing person has not been actively partici- arguably confidential information pating or has engaged in disruptive or upon all persons other than the pos- dilatory conduct. The action referred sessor of the confidential information to in this provision shall be taken only and other DOE offices up to 14 days. after notice and an opportunity to be The possessor of the confidential infor- heard are afforded. mation shall serve the filing with any

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deletions upon all persons on the offi- Remedial Order is directed shall in- cial service list within such time pe- clude a copy of any relevant Notice of riod. Probable Violation, each Response (c) Any filing made under this sec- thereto, the Proposed Remedial Order, tion shall include a certification of and any relevant work papers or sup- compliance by the filer with the provi- plemental information previously pro- sions of this subpart. The person serv- vided by ERA. Copies of this material ing a document shall file a certificate must also be included with the copy of of service, which includes the date and the Statement of Objections served manner of service for each person on upon the DOE Assistant General Coun- the official service list. sel for Administrative Litigation. All other persons on the official service § 205.196 Statement of objections. list must be notified that such mate- (a) A person who has filed a Notice of rials are available from the notifier Objection shall file a Statement of Ob- upon written request. jections to a Proposed Remedial Order within 40 days after service of the No- § 205.197 Response to statement of ob- tice of Objection. A request for an ex- jections; reply. tension of time for filing must be sub- (a) Within 30 days after service of a mitted in writing and may be granted Statement of Objections each partici- for good cause shown. pant may file a Response. If any mo- (b) The Statement of Objections shall tions are served with the Statement of set forth the bases for the objections to Objections, a participant shall have 30 the issuance of the Proposed Remedial days from the date of service to re- Order as a final order, including a spec- spond to such submissions, notwith- ification of the issues of fact or law standing any shorter time periods oth- which the person intends to contest in erwise required in this subpart. The any further proceeding involving the Response shall contain a full discussion compliance matter which is the subject of the position asserted and a discus- of the Proposed Remedial Order. The sion of the legal and factual bases Statement shall set forth the findings which support that position. The Re- of fact contained in the Proposed Re- sponse may also contain a request that medial Order which are alleged to be any issue of fact or law advanced in a erroneous, the factual basis for such al- Statement of Objections be dismissed. legations, and any alternative findings Any such request shall be accompanied which are sought. The Statement shall by a full discussion of the reasons sup- include a discussion of all relevant au- porting the dismissal. thorities which support the position as- (b) A participant may submit a Reply serted. The Statement may include ad- to any Response within 10 days after ditional factual representations which the date of service of the Response. are not referred to in the Proposed Re- medial Order and which the person con- § 205.198 Discovery. tends are material and relevant to the (a) If a person intends to file a Mo- compliance proceeding. For each addition for Discovery, he must file it at tional factual representation which the the same time that he files his State- person asserts should be made, the ment of Objections or at the same time Statement shall include reasons why he files his Response to a Statement of the factual representation is relevant Objections, whichever is earlier. All and material, and the manner in which Motions for Discovery and related fil- its validity is or will be established. ings must be served upon the person to The person shall also specify the man- whom the discovery is directed. If the ner in which each additional issue of person to whom the discovery is di- fact was raised in any prior adminis- rected is not on the official service list, trative proceeding which led to the documents served upon him shall issuance of the Proposed Remedial include a copy of this section, the ad- Order, or the reasons why it was not dress of the Office of Hearings and Ap- raised. peals and a statement that objections (c) A Statement of Objections that is to the Motion may be filed with the Of- filed by the person to whom a Proposed fice of Hearings and Appeals.

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(b) A Motion for Discovery may re- (i) Any order issued by the Office of quest that: Hearings and Appeals with respect to (1) A person produce for inspection discovery shall be subject to further and photocopying non-privileged writ- administrative review or appeal only ten material in his possession; upon issuance of the determination re- (2) A person respond to written inter- ferred to in § 205.199B. rogatories; (3) A person admit to the genuineness § 205.198A Protective order. of any relevant document or the truth A participant who has unsuccessfully of any relevant fact; or attempted in writing to obtain infor- (4) The deposition of a material wit- mation that another participant claims ness be taken. (c) A Motion for Discovery shall set is confidential may file a Motion for forth the reasons why the particular Discovery and Protective Order. This discovery is necessary in order to ob- motion shall meet the requirements of tain relevant and material evidence § 205.198 and shall specify the particular and shall explain why such discovery confidential information that the mov- would not unduly delay the proceeding. ant seeks and the reasons why the in- (d) Within 20 days after a Motion for formation is necessary to adequately Discovery is served, a participant or a present the movant’s position in the person to whom the discovery is di- proceeding. A copy of the written re- rected may file a request that the Mo- quest for information, a certification tion be denied in whole or in part, stat- concerning when and to whom it was ing the reasons which support the reserved and a copy of the response, if quest. any, shall be appended to the motion. (e) Discovery may be conducted only The motion must give the possessor of pursuant to an Order issued by the Of- the information notice that a Response fice of Hearings and Appeals. A Motion to the Motion must be filed within ten for Discovery will be granted if it is days. The Response shall specify the concluded that discovery is necessary safeguards, if any, that should be im- for the party to obtain relevant and posed if the information is ordered to material evidence and that discovery be released. The Office of Hearings and will not unduly delay the proceeding. Appeals may issue a Protective Order Depositions will be permitted if a con- upon consideration of the Motion and vincing showing is made that the par- the Response. ticipant cannot obtain the material sought through one of the other dis- § 205.199 Evidentiary hearing. covery means specified in paragraph (b) (a) Filing Requirements. At the time a of this section. person files a Statement of Objections (f) The Director of the Office of Hear- he may also file a motion requesting an ings and Appeals or his designee may issue subpoenas in accordance with evidentiary hearing be convened. A mo- § 205.8 in support of Discovery Orders, tion requesting an evidentiary hearing except that § 205.8 (h)(2), (3), and (4) may be filed by any other participant shall not apply to such subpoenas. within 30 days after that participant is (g) The Office of Hearings and Ap- served with a Statement of Objections. peals may order that any direct ex- (b) Contents of Motion for Evidentiary penses incurred by a person to produce Hearing. A Motion for Evidentiary evidence pursuant to a Motion for Dis- Hearing shall specify each disputed covery be charged to the person who issue of fact and the bases for the alter- filed the Motion. native findings the movant asserts. (h)(1) If a person fails to comply with The movant shall also describe the an order relating to discovery, the Of- manner in which each disputed issue of fice of Hearings and Appeals may order fact was raised in any prior adminis- appropriate sanctions. trative proceeding which led to (2) It shall be the duty of aggrieved issuance of the Proposed Remedial participants to request that appro- Order, or why it was not raised. The priate relief be fashioned in such situa- movant shall with respect to each dis- tions. puted or alternative finding of fact:

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(1) As specifically as possible, iden- Motion for Evidentiary Hearing is tify the witnesses whose testimony is granted in whole or in part, the Order required; shall specify the parties to the hearing, (2) State the reasons why the testi- any limitations on the participation of mony of the witnesses is necessary; and a party, and the issues of fact set forth (3) State the reasons why the as- for the evidentiary hearing. The Order serted position can be effectively es- may also require parties that have tablished only through the direct ques- adopted similar positions to consoli- tioning of witnesses at an evidentiary date their presentations and to appear hearing. at the evidentiary hearing through a (c) Response to Motion for Evidentiary common representative. If the Motion Hearing. Within 20 days after service of is denied, the Order may allow the any Motion for Evidentiary Hearing, movant to file affidavits and other doc- the Office that issued the Proposed Re- uments in support of his asserted find- medial Order shall, and any other par- ings of fact. ticipant may file a Response with the (f) Review of Decision. The Order of Office of Hearings and Appeals. The Re- the Office of Hearings and Appeals with sponse shall specify: respect to a Motion for Evidentiary (1) Each particular factual represen- Hearing shall be subject to further ad- tation which is accepted as correct for ministrative review or appeal only purposes of the proceeding; upon issuance of the determination re- (2) Each particular factual represen- ferred to in § 205.199B. tation which is denied; (g) Conduct of Evidentiary Hearing. All (3) Each particular factual represen- evidentiary hearings convened pursu- tation which the participant is not in a ant to this section shall be conducted position to accept or deny; by the Director of the Office of Hear- (4) Each particular factual represen- ings and Appeals or his designee. At tation which is not accepted and the any evidentiary hearing the parties participant wishes proven by the sub- shall have the opportunity to present mission of evidence; material evidence which directly re- (5) Each particular factual represen- lates to a particular issue of fact set tation which the participant is pre- forth for hearing. The presiding officer pared to dispute through the testimony shall afford the parties an opportunity of witnesses or the submission of to cross examine all witnesses. The verified documents; and presiding officer may administer oaths (6) Each particular factual represen- and affirmations, rule on objections to tation which the participant asserts the presentation of evidence, receive should be dismissed as immaterial or relevant material, rule on any motion irrelevant. to conform the Proposed Remedial (d) Prehearing Conferences. After all Order to the evidence presented, rule submissions with respect to a Motion on motions for continuance, dispose of for Evidentiary Hearing are filed, the procedural requests, determine the for- Office of Hearings and Appeals may mat of the hearing, modify any order conduct conferences or hearings to re- granting a Motion for Evidentiary solve differences of view among the Hearing, direct that written motions or participants. briefs be provided with respect to (e) Decision on Motion for Evidentiary issues raised during the course of the Hearing. After considering all relevant hearing, issue subpoenas, and other- information received in connection wise regulate the conduct of the hear- with the Motion, the Office of Hearings ing. The presiding officer may take and Appeals shall enter an Order. In reasonable measures to exclude dupli- the Order the Office of Hearings and cative material from the hearing, and Appeals shall direct that an evi- may place appropriate limitations on dentiary hearing be convened if it con- the number of witnesses that may be cludes that a genuine dispute exists as called by a party. The presiding officer to relevant and material issues of fact may also require that evidence be sub- and an evidentiary hearing would submitted through affidavits or other doc- stantially assist it in making findings uments if the direct testimony of wit- of fact in an effective manner. If the nesses will unduly delay the orderly

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progress of the hearing and would not or law or is arbitrary or capricious. In contribute to resolving the issues in- the alternative, the Office of Hearings volved in the hearing. The provisions of and Appeals may determine that no § 205.8 which relate to subpoenas and Remedial Order should be issued or witness fees shall apply to any evi- may remand all or a portion of the Pro- dentiary hearing, except that sub- posed Remedial Order to the issuing section § 205.8(h) (2), (3), and (4) shall DOE office for further consideration or not apply. modification. Every determination made pursuant to this section shall § 205.199A Hearing for the purpose of state the relevant facts and legal bases oral argument only. supporting the determination. (a) A participant is entitled upon (b) The DOE shall serve a copy of any timely request to a hearing to present determination issued pursuant to para- oral argument with respect to the Pro- graph (a) of this section upon the per- posed Remedial Order, whether or not son to whom it is directed, any person an evidentiary hearing is requested or who was served with a copy of the Pro- convened. A participant’s request shall posed Remedial Order, the DOE office normally be considered untimely, if that issued the Proposed Remedial made more than 10 days after service of Order, the DOE Assistant General a determination regarding any motion Counsel for Administrative Litigation filed by the requestor or, if no motions and any other person on the official were filed by him, if made after the service list. Appropriate deletions may date for filing his Reply or his Re- be made in the determinations to en- sponse to a Statement of Objections. sure that confidentiality of informa- (b) If an evidentiary hearing is con- tion protected from disclosure under 18 vened, and a hearing for oral argument U.S.C. 1905 and 5 U.S.C. 552. A copy of is requested, the Office of Hearings and the determination with appropriate de- Appeals shall determine whether the letions to protect confidential and pro- hearing for oral argument shall be held prietary data shall be placed in the Of- in conjunction with the evidentiary fice of Hearings and Appeals Public hearing or at a separate time. Docket Room. (c) A hearing for the purpose of receiving oral argument will generally be § 205.199C Appeals of remedial order conducted only after the issues in- to FERC. volved in the proceeding have been de- (a) The person to whom a Remedial lineated, and any written material Order is issued by the Office of Hear- which the Office of Hearings and Ap- ings and Appeals may file an adminis- peals has requested to supplement a trative appeal if the Remedial Order Statement of Objections or Responses proceeding was initiated by a Notice of has been submitted. The presiding offi- Probable Violation issued after October cer may require further written sub- 1, 1977, or, in those situations in which missions in support of any position ad- no Notice of Probable Violation was vanced or issued at the hearing, and issued, if the proceeding was initiated shall allow responses any such submis- by a Proposed Remedial Order issued sions. after October 1, 1977. (b) Any such appeal must be initiated § 205.199B Remedial order. within 30 days after service of the (a) After considering all information Order by giving written notice to the received during the proceeding, the Di- Office of Hearings and Appeals that the rector of the Office of Hearings and Ap- person to whom a Remedial Order is peals or his designee may issue a final issued wishes to contest the Order. Remedial Order. The Remedial Order (c) The Office of Hearings and Ap- may adopt the findings and conclusions peals shall promptly advise the Federal contained in the Proposed Remedial Energy Regulatory Commission of its Order or may modify or rescind any receipt of a notice described in para- such finding or conclusion to conform graph (b) of this section. the Order to the evidence or on the (d) The Office of Hearings and Ap- basis of a determination that the find- peals may, on a case by case basis, set ing or conclusion is erroneous in fact reasonable time limits for the Federal

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Energy Regulatory Commission to § 205.199G Extension of time; Interim complete its action on such an appeal and Ancillary Orders. proceeding. The Director of the Office of Hearings (e) In order to exhaust administra- and Appeals or his designee may per- tive remedies, a person who is entitled mit upon motion any document or sub- to appeal a Remedial Order issued by mission referred to in this subpart the Office of Hearings and Appeals other than appeals to FERC to be must file a timely appeal and await a amended or withdrawn after it has decision on the merits. Any Remedial been filed or to be filed within a time Order that is not appealed within the period different from that specified in 30-day period shall become effective as this subpart. The Director or his des- a final Order of the DOE and is not sub- ignee may upon motion or on his own ject to review by any court. initiative issue any interim or ancillary Orders, reconsider any determina- §§ 205.199D–205.199E [Reserved] tions, or make any rulings or determinations that are deemed necessary § 205.199F Ex parte communications. to ensure that the proceedings specified in this subpart are conducted in an (a) No person who is not employed or appropriate manner and are not unduly otherwise supervised by the Office of delayed. Hearings and Appeals shall submit ex parte communications to the Director § 205.199H Actions not subject to ad- or any person employed or otherwise ministrative appeal. supervised by the Office with respect to A Notice of Probable Violation, No- any matter involved in Remedial Order tice of Proposed Disallowance, Pro- or Order of Disallowance proceedings. posed Remedial Order or Interim Re- (1) Ex parte communications include medial Order for Immediate Compli- any ex parte oral or written commu- ance issued pursuant to this subpart nications relative to the merits of a shall not be an action from which there Proposed Remedial Order, Interim Re- may be an administrative appeal pur- medial Order for Immediate Compli- suant to subpart H. In addition, a de- ance, or Proposed Order of Disallow- termination by the Office of Hearings ance proceeding pending before the Of- and Appeals that a Remedial Order, an Order of Disallowance, or a Remedial fice of Hearings and Appeals. The term Order for Immediate Compliance shall not, however, include requests for should not be issued shall not be ap- status reports, inquiries as to proce- pealable pursuant to subpart H. dures, or the submission of proprietary or confidential information. Notice § 205.199I Remedies. that proprietary or confidential sub- (a) A Remedial Order, a Remedial missions have been made shall be given Order for Immediate Compliance, an to all persons on the official service Order of Disallowance, or a Consent list. Order may require the person to whom (b) If any communication occurs that it is directed to roll back prices, to violates the provisions of this section, make refunds equal to the amount the Office of Hearings and Appeals (plus interest) charged in excess of shall promptly make the substance of those amounts permitted under DOE the communication available to the Regulations, to make appropriate com- public and serve a copy of a written pensation to third persons for adminis- communication or a memorandum trative expenses of effectuating appro- summarizing an oral communication to priate remedies, and to take such other all participants in the affected pro- action as the DOE determines is nec- ceeding. The Office of Hearings and Ap- essary to eliminate or to compensate peals may also take any other appro- for the effects of a violation or any priate action to mitigate the adverse cost disallowance pursuant to § 212.83 impact to any person whose interest or § 212.84. Such action may include a direction to the person to whom the may be affected by the ex parte con- Order is issued to establish an escrow tact. account or take other measures to

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make refunds directly to purchasers of suant to § 205.199B or an Order of Dis- the products involved, notwithstanding allowance issued pursuant to § 205.199E, the fact that those purchasers obtained and may require one or more of the such products from an intermediate remedies authorized by § 205.199I and distributor of such person’s products, § 212.84(d)(3). A Consent Order becomes and may require as part of the remedy effective no sooner than 30 days after that the person to whom the Order is publication under paragraph (c) of this issued maintain his prices at certain section, unless (1) the DOE makes a designated levels, notwithstanding the Consent Order effective immediately, presence or absence of other regulatory because it expressly deems it necessary controls on such person’s prices. In in the public interest, or (2) the Con- cases where purchasers cannot be rea- sent Order involves a sum of less than sonably identified or paid or where the $500,000 in the aggregate, excluding amount of each purchaser’s overcharge is incapable of reasonable determina- penalties and interest, in which case it tion, the DOE may refund the amounts will be effective when signed both by received in such cases directly to the the person to whom it is issued and the Treasury of the United States on be- DOE, and will not be subject to the half of such purchasers. provisions of paragraph (c) of this sec- (b) The DOE may, when appropriate, tion unless the DOE determines other- issue final Orders ancillary to a Reme- wise. A Consent Order shall not be ap- dial Order, Remedial Order for Imme- pealable pursuant to the provisions of diate Compliance, Order of Disallow- § 205.199C or § 205.199D and subpart H, ance, or Consent Order requiring that a and shall contain an express waiver of direct or indirect recipient of a refund such appeal or judicial review rights as pass through, by such means as the might otherwise attach to a final Order DOE deems appropriate, including of the DOE. those described in paragraph (a) of this (c) When a Consent Order has been section, all or a portion of the refund, signed, both by the person to whom it on a pro rata basis, to those customers is issued and the DOE, the DOE will of the recipient who were adversely af- publish notice of such Consent Order in fected by the initial overcharge. Ancil- the FEDERAL REGISTER and in a press lary Orders may be appealed to the Of- release to be issued simultaneously fice of Hearings and Appeals only pur- therewith. The FEDERAL REGISTER no- suant to subpart H. tice and the press release will state at § 205.199J Consent order. a minimum the name of the company (a) Notwithstanding any other provi- concerned, a brief summary of the Con- sion of this subpart, the DOE may at sent Order and other facts or allega- any time resolve an outstanding com- tions relevant thereto, the address and pliance investigation or proceeding, or telephone number of the DOE office at a proceeding involving the disallow- which copies of the Consent Order will ance of costs pursuant to § 205.199E be available free of charge, the address with a Consent Order. A Consent Order to which comments on the Consent must be signed by the person to whom Order will be received by the DOE, and it is issued, or a duly authorized rep- the date by which such comments resentative, and must indicate agree- should be submitted, which date will ment to the terms contained therein. A not be less than 30 days after publica- Consent Order need not constitute an tion of the FEDERAL REGISTER notice. admission by any person that DOE reg- After the expiration of the comment ulations have been violated, nor need it period the DOE may withdraw its constitute a finding by the DOE that agreement to the Consent Order, at- such person has violated DOE regula- tempt to negotiate a modification of tions. A Consent Order shall, however, the Consent Order, or issue the Consent set forth the relevant facts which form Order as signed. The DOE will publish the basis for the Order. in the FEDERAL REGISTER, and by press (b) A Consent Order is a final Order release, notice of any action taken on a of the DOE having the same force and Consent Order and such explanation of effect as a Remedial Order issued pur-

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the action taken as deemed appro- SOURCE: 49 FR 35315, Sept. 6, 1984, unless priate. The provisions of this para- otherwise noted. graph shall be applicable notwithstanding the fact that a Consent Order § 205.260 Purpose and scope. may have been made immediately ef- (a) The purpose of this section is to fective pursuant to paragraph (b) of state the procedures that will be fol- this section (except in cases where the lowed by the Economic Regulatory Ad- Consent Order involves sums of less ministration of the Department of En- than $500,000 in the aggregate, exclud- ergy in electricity export adjudica- ing penalties and interest). tions. (d) At any time and in accordance (b) Definitions. As used in this sub- with the procedures of subpart J, a part— Consent Order may be modified or re- Administrator means the Adminis- scinded, upon petition by the person to trator of the Economic Regulatory Ad- whom the Consent Order was issued, ministration. and may be rescinded by the DOE upon Decisional employees means the Ad- discovery of new evidence which is ma- ministrator, presiding officers at adju- terially inconsistent with evidence dicatory hearings, and other employees upon which the DOE’s acceptance of of the Department, including consult- the Consent Order was based. Modifica- ants and contractors, who are, or may tions of a Consent Order which is sub- reasonably be expected to be, involved ject to public comment under the pro- in the decision-making process, which visions of paragraph (c) of this section, includes advising the Administrator in which in the opinion of the DOE sig- resolving the issues in an adjudication. nificantly change the terms or the im- The term does not include those em- pact of the original Order, shall be re- ployees of the Department performing published under the provisions of that investigative or trial functions in an paragraph. adjudication, unless they are specifi- (e) Notwithstanding the issuance of a cally requested by the Administrator Consent Order, the DOE may seek civil or his delegate to participate in the de- or criminal penalties or compromise cision-making process. civil penalties pursuant to subpart P concerning matters encompassed by Department means the Department of the Consent Order, unless the Consent Energy. Order by its terms expressly precludes Off-the-record communication means the DOE from so doing. an ex parte communication, which is an (f) If at any time after a Consent oral or written communication rel- Order becomes effective it appears to evant to the merits of an adjudication the DOE that the terms of the Consent and not on the record and with respect Order have been violated, the DOE may to which reasonable prior notice to all refer such violations to the Depart- participants and opportunity to be ment of Justice for appropriate action present at, or respond to, the commu- in accordance with subpart P. nication is not given, but does not include a communication relating solely Subparts P–T Reserved to procedures which are not relevant to [ ] the merits of the adjudication. Interested person means a person out- Subpart U—Procedures for side the Department whose interest in Electricity Export Cases the adjudication goes beyond the general interest of the public as a whole AUTHORITY: Federal Power Act, 41 Stat. and includes applicants, intervenors, 1063, as amended; Executive Order 10485, as competitors of applicants, non-profit amended by Executive Order 12038; Federal and public interest organizations, and Energy Administration Act of 1974, Pub. L. other individuals and organizations, in- 93–275, as amended; Pub. L. 94–332, Pub. L. 94– cluding state, local and other public of- 385, Pub. L. 95–70, and Pub. L. 95–91; Energy Policy and Conservation Act, Pub. L. 95–70; ficials, with a proprietary, financial or Department of Energy Organization Act, other special interest in the outcome of Pub. L. 95–91; E.O. 11790, 39 FR 23185; E.O. the adjudication. The term does not in- 12009, 42 FR 46267. clude other federal agencies, unless an

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agency is a participant in the adjudica- sociated with the adjudication, avail- tion. able for public inspection. Participant means any applicant or (5) Upon receipt of a communication intervenor participating in the adju- knowingly made or knowingly caused dication. to be made by a participant in viola- Adjudication means a formal pro- tion of this section, the Administrator ceeding employing procedures identical or presiding officer may, to the extent or similar to those required by the Ad- consistent with the interests of justice ministrative Procedure Act, as codified and the applicable statutory policy, re- in 5 U.S.C. 551, 556, and 557, to consider quire the participant to show cause an application to export electricity. why his or her claim or interest in the adjudication should not be dismissed, Reasonable prior notice means 7 days’ denied, disregarded, or otherwise ad- written notice stating the nature and versely affected on account of the vio- purpose of the communication. lation. Relevant to the merits means a com- (6) The prohibitions of this section munication directly related to the shall apply beginning at the time an merits of a specific adjudication but adjudication is noticed for hearing (or does not include general background the person responsible for the commu- discussions about an entire industry or nication acquires knowledge that it communications of a general nature will be noticed), a protest is filed, or a made in the course of developing agen- petition or notice to intervene in oppo- cy policy for future general applica- sition to the requested Department action. tion is filed, whichever occurs first. (b) The prohibition, cited at 18 CFR §§ 205.261–205.269 [Reserved] 1.30(f), against participation in the decision-making process by Department § 205.270 Off-the-record communica- employees who perform investigative tions. or trial functions in an adjudication, (a) In any proceeding which is subject shall no longer be applicable to ERA. to this subpart— (1) No interested person shall make Subpart V—Special Procedures for an off-the-record communication or Distribution of Refunds knowingly cause an off-the-record communication to be made to any AUTHORITY: Economic Stabilization Act of decisional employee. 1970, Pub. L. 92–210; Emergency Petroleum (2) No decisional employee shall Allocation Act of 1973, Pub. L. 93–159, as make an off-the-record communication amended, Pub. L. 93–511, Pub. L. 94–99, Pub. or knowingly cause an off-the-record L. 94–133, Pub. L. 94–163, and Pub. L. 94–385, communication to be made to any in- Federal Energy Administration Act of 1974, terested person. Pub. L. 93–275, as amended, Pub. L. 94–332, Pub. L. 94–332, Pub. L. 94–385, Pub. L. 95–70, (3) A decisional employee who re- Pub. L. 95–91, Energy Policy and Conserva- ceives, makes, or knowingly causes to tion Act, Pub. L. 94–163, as amended, Pub. L. be made an oral communication pro- 94–385, Pub. L. 95–70; Department of Energy hibited by this section shall prepare a Organization Act, Pub. L. 95–91; E.O. 11790, 39 memorandum stating the substance of FR 23185; E.O. 12009, 42 FR 46267. the communication and any responses SOURCE: 44 FR 8566, Feb. 9, 1979, unless oth- made to it. erwise noted. (4) With 48 hours of receiving, making or knowingly causing to be made a § 205.280 Purpose and scope. communication prohibited by this sec- This subpart establishes special pro- tion, a decisional employee shall de- cedures pursuant to which refunds may liver all written off-the-record commu- be made to injured persons in order to nications and all memoranda prepared remedy the effects of a violation of the in compliance with paragraph (a)(3) of regulations of the Department of En- this section to the Director of the Coal ergy. This subpart shall be applicable and Electricity Division, ERA, who to those situations in which the De- will immediately place the materials partment of Energy is unable to read- described above in the public record as- ily identify persons who are entitled to

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refunds specified in a Remedial Order, Hearings and Appeals with respect to a Remedial Order for Immediate Com- the matter. At least 30 days following pliance, an Order of Disallowance or a publication in the FEDERAL REGISTER Consent Order, or to readily ascertain shall be provided for the submission of the amounts that such persons are en- comments. titled to receive. (c) After considering the comments submitted, the Director of the Office of § 205.281 Petition for implementation Hearings and Appeals or his designee of special refund procedures. shall issue a final Decision and Order (a) At any time after the issuance of which shall govern the disposition of a Remedial Order (including for pur- the refunds. The final Decision and poses of this subpart a Remedial Order Order shall also be published in the for Immediate Compliance and an FEDERAL REGISTER. Order of Disallowance), or a Consent (d) The final Decision and Order shall Order, the Special Counsel of the De- set forth the standards and procedures partment of Energy, the ERA Office of that will be used in evaluating indi- Enforcement, or any other enforcement vidual Applications for Refunds and official of the Department of Energy distributing the refund amount. Those may file with the Office of Hearings standards and procedures shall be con- and Appeals a Petition for the Imple- sistent with the provisions of this sub- mentation of Special Refund Proce- part. dures. (e) In establishing standards and pro- (b) The Petition shall state that the cedures for implementing refund dis- person filing it has been unable readily tributions, the Office of Hearings and either to identify the persons who are Appeals shall take into account the de- entitled to refunds to be remitted pur- sirability of distributing the refunds in suant to a Remedial Order or a Consent an efficient, effective and equitable Order or to ascertain the amounts of manner and resolving to the maximum refunds that such persons are entitled extent practicable all outstanding to receive. The Petition shall request claims. In order to do so, the standards that the Office of Hearings and Appeals for evaluation of individual claims may institute appropriate proceedings be based upon appropriate presump- under this Subpart to distribute the tions. funds referred to in the enforcement documents. § 205.283 Applications for refund. (c) The Petition shall contain a copy (a) Any person entitled to a refund of each relevant enforcement docu- pursuant to a final Decision and Order ment, shall be filed in duplicate, and issued pursuant to § 205.282 may file an shall meet the requirements of § 205.9 of Application for Refund. All Applica- this part. tions must be signed by the applicant and specify the DOE order to which § 205.282 Evaluation of petition by the they pertain. Any Application for a re- Office of Hearings and Appeals. fund in excess of $100 must be file in (a) After considering the Petition, duplicate, and a copy of that Applica- the Director of the Office of Hearings tion will be available for public inspec- and Appeals or his designee shall issue tion in the DOE Public Docket Room a Proposed Decision and Order. The at 2000 M Street, NW., Washington, DC. Proposed Decision and Order shall gen- Any applicant who believes that his erally describe the nature of the par- Application contains confidential in- ticular refund proceeding and shall set formation must so indicate on the first forth the standards and procedures page of his Application and submit two that the Office of Hearings and Appeals additional copies of his Application intends to apply in evaluating refund from which the information that the claims. applicant claims is confidential has (b) The Proposed Decision and Order been deleted, together with a state- shall be published in the FEDERAL REG- ment specifying why any such informa- ISTER together with a statement that tion is privileged or confidential. any member of the public may submit (b) The contents of an Application for written comments to the Office of Refund shall be specified in the final

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Decision and Order referred to in dural requests, determine the format of § 205.282(c). A filing deadline for Appli- the hearing and otherwise regulate the cations shall also be specified in the course of the hearing. The provisions of final Decision and Order, and shall be § 205.8 of this part which relate to sub- no less than 90 days after the publica- poenas and witness fees shall apply to tion of the Order in the FEDERAL REG- any hearing convened with respect to ISTER. an application for refund, except that (c) Each Application shall be in writ- § 205.8(h) (2), (3) and (4) shall not apply. ing and signed by the applicant, and (d) Upon consideration of an Applica- shall indicate whether the applicant or tion and other relevant information re- any person acting on his instructions ceived during the course of a refund has filed or intends to file any other proceeding, the Director of the Office Application or claim of whatever na- of Hearings and Appeals or his designee ture regarding the matters at issue in shall issue an order granting or deny- the underlying enforcement pro- ing the Application. The order shall ceeding. Each Application shall also in- contain a concise statement of the rel- clude a sworn statement by the appli- evant facts and the legal basis for the cant that all information in his Appli- order. A copy of the order, with such cation is true and correct to the best of modification as is necessary to ensure his knowledge and belief. the confidentiality of information protected from public disclosure by 18 § 205.284 Processing of applications. U.S.C. 1905, may be obtained upon re- (a) The Director of the Office of Hear- quest by an applicant or any other per- ings and Appeals may appoint an ad- son who participated in the proceeding. ministrator to evaluate Applications under guidelines established by the Of- § 205.285 Effect of failure to file a time- fice of Hearings and Appeals. The ad- ly application. ministrator, if he is not a Federal Gov- An Application for Refund must be ernment employee, may be com- filed no later than the date that the Of- pensated from the funds referred to in fice of Hearings and Appeals estab- the Remedial Order or Consent Order. lishes pursuant to § 205.283(b). Any Ap- The administrator may design and dis- plication that is not filed on a timely tribute an optional application form basis may be summarily dismissed. The for the convenience of the applicants. (b) The Office of Hearings and Ap- Office of Hearings and Appeals or its peals or its designee may initiate an designee may, however, grant exten- investigation of any statement made in sions of time for good cause shown. an Application and may require Any request for an extension of time verification of any document sub- must generally be submitted in writing mitted in support of a claim. In evalu- prior to the deadline. ating an Application, the Office of § 205.286 Limitations on amount of re- Hearings and Appeals or its designee funds. may solicit and consider information obtained from any source and may on (a) The aggregate amount of all re- its own initiative convene a hearing or funds approved by the Office of Hear- conference, if it determines that a ings and Appeals or its designee in a hearing or conference will advance its given case shall not exceed the amount evaluation of an Application. to be remitted pursuant to the relevant (c) The Director of the Office of Hear- DOE enforcement order, plus any accu- ings and Appeals or his designee shall mulated interest, reduced by the conduct any hearing or conference con- amount of any administrative costs ap- vened with respect to an Application proved by the Office of Hearings and for Refund and shall specify the time Appeals. In the event that the aggre- and place for the hearing or conference gate amount of approved claims ex- and notify the applicant. The official ceeds the aggregate amount of funds conducting the hearing may administer specified above, the Office of Hearings oaths and affirmations, rule on the and Appeals may make refunds on a presentation of information, receive pro rata basis. The Office of Hearings relevant information, dispose of proce- and Appeals may delay payment of any

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refunds until all Applications have in a refund proceeding, are conducted been processed. in an appropriate manner and are not (b) The Office of Hearings and Ap- unduly delayed. peals may decline to consider Applica- tions for refund amounts that, in view Subpart W—Electric Power System of the direct administrative costs in- Permits and Reports; Applica- volved, are too small to warrant indi- tions; Administrative Proce- vidual consideration. dures and Sanctions § 205.287 Escrow accounts, segregated funds and other guarantees. AUTHORITY: Department of Energy Organi- (a) In implementing the refund proce- zation Act, Pub. L. No. 95–91, 91 Stat. 565 (42 dures specified in this subpart, the Di- U.S.C. Section 7101). Federal Power Act, Pub. L. 66–280, 41 Stat. 1063 (16 U.S.C. Section 792) rector of the Office of Hearings and Ap- et seq., Department of Energy Delegation peals or his designee shall issue an Order No. 0204–4 (42 FR 60726). E.O. 10485, 18 order providing for the custody of the FR 5397, 3 CFR, 1949–1953, Comp., p. 970 as funds to be tendered pursuant to the amended by E.O. 12038, 43 FR 4957, 3 CFR 1978 Remedial Order or Consent Order. This Comp., p. 136. Order may require placement of the SOURCE: 45 FR 71560, Oct. 28, 1980; 46 FR funds in an appropriate interest-bear- 63209, Dec. 31, 1981, unless otherwise noted. ing escrow account, retention of the (Approved by the Office of Manage- funds by the firm in a segregated ac- ment and Budget under Control No. count under such terms and conditions 1901–0245) as are specified by the DOE, or the posting of a sufficient bond or other APPLICATION FOR AUTHORIZATION TO guarantee to ensure payment. TRANSMIT ELECTRIC ENERGY TO A (b) All costs and charges approved by FOREIGN COUNTRY the Office of Hearings and Appeals and incurred in connection with the proc- § 205.300 Who shall apply. essing of Applications for Refund or in- (a) An electric utility or other entity curred by an escrow agent shall be paid subject to DOE jurisdiction under part from the amount of funds, including II of the Federal Power Act who pro- any accumulated interest, to be remit- poses to transmit any electricity from ted pursuant to the Remedial Order or the United States to a foreign country Consent Order. must submit an application or be a (c) After the expenses referred to in party to an application submitted by paragraph (b) of this section have been another entity. The application shall satisfied and refunds distributed to be submitted to the Office of Utility successful applicants, any remaining Systems of the Economic Regulatory funds remitted pursuant to the Reme- Administration (EPA). dial Order or Consent Order shall be de- (b) In connection with an application posited in the United States Treasury under §§ 205.300 through 205.309, atten- or distributed in any other manner tion is directed to the provisions of specified in the Decision and Order re- §§ 205.320 through 205.327, below, con- ferred to in § 205.282(c). cerning applications for Presidential (d) Funds contained in an escrow ac- Permits for the construction, connec- count, segregated fund, or guaranteed tion, operation, or maintenance, at the by other approved means shall be dis- borders of the United States, of facili- bursed only upon written order of the ties for the transmission of electric en- Office of Hearings and Appeals. ergy between the United States and a foreign country in compliance with Ex- § 205.288 Interim and ancillary orders. ecutive Order 10485, as amended by Ex- The Director of the Office of Hearings ecutive Order 12038. and Appeals or his designee may issue any interim or ancillary orders, or § 205.301 Time of filing. make any rulings or determinations to Each application should be made at ensure that refund proceedings, includ- least six months in advance of the ini- ing the actions of the administrator tiation of the proposed electricity ex- and the custodian of the funds involved port, except when otherwise permitted

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by the ERA to resolve an emergency tains proprietary information that situation. should not be released to the general public, the applicant must identify § 205.302 Contents of application. such data and include a statement ex- Every application shall contain the plaining why proprietary treatment is following information set forth in the appropriate. order indicated below: (b) Exhibit B. A showing, including a (a) The exact legal name of the appli- signed opinion of counsel, that the pro- cant. posed export of electricity is within the (b) The exact legal name of all part- corporate power of the applicant, and ners. that the applicant has complied or will (c) The name, title, post office ad- comply with all pertinent Federal and dress, and telephone number of the per- State laws. son to whom correspondence in regard (c) Exhibit C. A general map showing to the application shall be addressed. the applicant’s overall electric system (d) The state or territory under the and a detailed map highlighting the lo- laws of which the applicant is orga- cation of the facilities or the proposed nized or incorporated, or authorized to facilities to be used for the generation operate. If the applicant is authorized and transmission of the electric energy to operate in more than one state, all to be exported. The detailed map shall pertinent facts shall be included. identify the location of the proposed (e) The name and address of any border crossing point(s) or power trans- known Federal, State or local govern- fer point(s) by Presidential Permit ment agency which may have any ju- number whenever possible. risdiction over the action to be taken (d) Exhibit D. If an applicant resides in this application and a brief descrip- or has its principal office outside the tion of that authority. United States, such applicant shall des- (f) A description of the transmission ignate, by irrevocable power of attor- facilities through which the electric ney, an agent residing within the energy will be delivered to the foreign United States. A verified copy of such country, including the name of the power of attorney shall be furnished owners and the location of any remote with the application. facilities. (e) Exhibit E. A statement of any cor- (g) A technical discussion of the pro- porate relationship or existing con- posed electricity export’s reliability, tract between the applicant and any fuel use and system stability impact on other person, corporation, or foreign the applicant’s present and prospective government, which in any way relates electric power supply system. Appli- to the control or fixing of rates for the cant must explain why the proposed purchase, sale or transmission of elec- electricity export will not impair the tric energy. sufficiency of electric supply on its (f) Exhibit F. An explanation of the system and why the export will not im- methodology (Operating Procedures) to pede or tend to impede the regional co- inform neighboring electric utilities in ordination of electric utility planning the United States of the available ca- or operation. pacity and energy which may be in ex- (h) The original application shall be cess of the applicant’s requirements be- signed and verified under oath by an of- fore delivery of such capacity to the ficer of the applicant having knowledge foreign purchaser. Approved firm ex- of the matters set forth therein. port, diversity exchange and emergency exports are exempted from this § 205.303 Required exhibits. requirement. Those materials required There shall be filed with the applica- by this section which have been filed tion and as a part thereof the following previously with the ERA may be incor- exhibits: porated by reference. (a) Exhibit A. A copy of the agreement or proposed agreement under § 205.304 Other information. which the electricity is to be trans- Where the application is for author- mitted including a listing of the terms ity to export less than 1,000,000 kilo- and conditions. If this agreement con- watt hours annually, applicants need

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not furnish the information called for § 205.308 Filing schedule and annual in §§ 205.302(g) and 205.303 (Exhibit C). reports. Applicants, regardless of the amount of (a) Persons authorized to transmit electric energy to be exported, may be electric energy from the United States required to furnish such supplemental shall promptly file all supplements, no- information as the ERA may deem per- tices of succession in ownership or op- tinent. eration, notices of cancellation, and § 205.305 Transferability. certificates of concurrence. In general, these documents should be filed at (a) An authorization to transmit least 30 days prior to the effective date electric energy from the United States of any change. to a foreign country granted by order (b) A change in the tariff arrange- of the ERA under section 202(e) of the Federal Power Act shall not be trans- ment does not require an amendment ferable or assignable. Provided written to the authorization. However, any en- notice is given to the ERA within 30 tity with an authorization to export days, the authorization may continue electric energy shall file with the ERA, in effect temporarily in the event of and the appropriate state regulatory the involuntary transfer of this author- agency, a certified copy of any changed ity by operation of law (including rate schedule and terms. Such changes transfers to receivers, trustees, or pur- may take effect upon the date of filing chasers under foreclosure or judicial of informational data with the ERA. sale). This continuance is contingent (c) Persons receiving authorization on the filing of an application for per- to transmit electric energy from the manent authorization and may be ef- United States shall submit to the ERA, fective until a decision is made there- by February 15 each year, a report cov- on. ering each month of the preceding cal- (b) In the event of a proposed vol- endar year detailing the gross amount untary transfer of this authority to ex- of kilowatt-hours of energy, by author- port electricity, the transferee and the ized category, received or delivered, transferor shall file jointly an applica- and the cost and revenue associated tion pursuant to this subsection, set- with each category. ting forth such information as required by §§ 205.300 through 205.304, together (Approved by the Office of Management and with a statement of reasons for the Budget under Control No. 1901–0245) transfer. [45 FR 71560, Oct. 28, 1980, as amended at 46 (c) The ERA may at any time subse- FR 63209, Dec. 31, 1981] quent to the original order of authorization, after opportunity for hearing, § 205.309 Filing procedures and fees. issue such supplemental orders as it Applications shall be addressed to may find necessary or appropriate. the Office of Utility Systems of the Economic Regulatory Administration. § 205.306 Authorization not exclusive. Every application shall be accom- No authorization granted pursuant to panied by a fee of $500.00. Fee payment section 202(e) of the Act shall be shall be by check, draft, or money deemed to prevent an authorization order payable to the Treasurer of the from being granted to any other person United States. Copies of applications or entity to export electric energy or and notifications of rate changes shall to prevent any other person or entity be furnished to the Federal Energy from making application for an export Regulatory Commission and all af- authorization. fected State public utility regulatory § 205.307 Form and style; number of agencies. copies An original and two conformed copies of an application containing the information required under §§ 205.300 through 205.309 must be filed.

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APPLICATION FOR PRESIDENTIAL PERMIT (3) The name, title, post office ad- AUTHORIZING THE CONSTRUCTION, CON- dress, and telephone number of the per- NECTION, OPERATION, AND MAINTE- son to whom correspondence in regard NANCE OF FACILITIES FOR TRANS- to the application shall be addressed; MISSION OF ELECTRIC ENERGY AT (4) Whether the applicant or its INTERNATIONAL BOUNDARIES transmission lines are owned wholly or in part by a foreign government or di- § 205.320 Who shall apply. rectly or indirectly assisted by a for- (a) Any person, firm, co-operative, eign government or instrumentality corporation or other entity who oper- thereof; or whether the applicant has ates an electric power transmission or any agreement pertaining to such own- distribution facility crossing the bor- ership by or assistance from any for- der of the United States, for the trans- eign government or instrumentality mission of electric energy between the thereof. United States and a foreign country, (5) List all existing contracts that shall have a Presidential Permit, in the applicant has with any foreign gov- compliance with Executive Order 10485, ernment, or any foreign private con- as amended by Executive Order 12038. cerns, relating to any purchase, sale or Such applications should be filed with delivery of electric energy. the Office of Utility Systems of the (6) A showing, including a signed Economic Regulatory Administration. opinion of counsel, that the construc- NOTE: E.O. 12038, dated February 3, 1978, tion, connection, operation, or mainte- amended E.O. 10485, dated September 3, 1953, nance of the proposed facility is within to delete the words ‘‘Federal Power Commis- sion’’ and ‘‘Commission’’ and substitute for the corporate power of the applicant, each ‘‘Secretary of Energy.’’ E.O. 10485 re- and that the applicant has complied voked and superseded E.O. 8202, dated July with or will comply with all pertinent 13, 1939. Federal and State laws; (b) In connection with applications (b) Information regarding the trans- hereunder, attention is directed to the mission lines to be covered by the Presi- provisions of §§ 205.300 to 205.309, above, dential Permit. (1)(i) A technical de- concerning applications for authoriza- scription providing the following infor- tion to transmit electric energy from mation: (A) Number of circuits, with the United States to a foreign country identification as to whether the circuit pursuant to section 202(e) of the Fed- is overhead or underground; (B) the op- eral Power Act. erating voltage and frequency; and (C) conductor size, type and number of § 205.321 Time of filing. conductors per phase. Pursuant to the DOE’s responsibility (ii) If the proposed interconnection is under the National Environmental Pol- an overhead line the following addi- icy Act, the DOE must make an envi- tional information must also be pro- ronmental determination of the provided: (A) The wind and ice loading de- posed action. If, as a result of this design parameters; (B) a full description termination, an environmental impact and drawing of a typical supporting statement (EIS) must be prepared, the structure including strength specifica- permit processing time normally will tions; (C) structure spacing with typ- be 18–24 months. If no environmental ical ruling and maximum spans; (D) impact statement is required, then a conductor (phase) spacing; and (E) the six-month processing time normally designed line to ground and conductor would be sufficient. side clearances. (iii) If an underground or underwater § 205.322 Contents of application. interconnection is proposed, the fol- Every application shall be accom- lowing additional information must panied by a fee prescribed in § 205.326 of also be provided: (A) Burial depth; (B) this subpart and shall provide, in the type of cable and a description of any order indicated, the following: required supporting equipment, such as (a) Information regarding the applicant. insulation medium pressurizing or (1) The legal name of the applicant; forced cooling; and (C) cathodic protec- (2) The legal name of all partners; tion scheme. Technical diagrams which

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provide clarification of any of the by the proposed facility with a descrip- above items should be included. tion of proposed activities therein. (2) A general area map with a scale (2) A list of any known Historic not greater than 1 inch=40 kilometers Places, as specified in 36 CFR part 800, (1 inch=25 miles) showing the overall which may be eligible for the National system, and a detailed map at a scale Register of Historic Places. of 1 inch=8 kilometers (1 inch=5 miles) (3) Details regarding the minimum showing the physical location, lon- right-of-way width for construction, gitude and latitude of the facility on operation and maintenance of the the international border. The map transmission lines and the rationale shall indicate ownership of the facili- for selecting that right-of-way width. ties at or on each side of the border be- (4) A list of threatened or endangered tween the United States and the for- wildlife or plant life which may be lo- eign country. The maps, plans, and de- cated in the proposed alternative. scription of the facilities shall distin- (d) A brief description of all practical guish the facilities or parts thereof al- alternatives to the proposed facility ready constructed from those to be and a discussion of the general environ- constructed. mental impacts of each alternative. (3) Applications for the bulk power (e) The original of each application supply facility which is proposed to be shall be signed and verified under oath operated at 138 kilovolts or higher by an officer of the applicant, having shall contain the following bulk power knowledge of the matters therein set system information: forth. (i) Data regarding the expected power transfer capability, using normal and § 205.323 Transferability. short time emergency conductor ratings; (a) Neither a permit issued by the (ii) System power flow plots for the ERA pursuant to Executive Order 10485, applicant’s service area for heavy sum- as amended, nor the facility shall be mer and light spring load periods, with transferable or assignable. Provided and without the proposed international written notice is given to the ERA interconnection, for the year the line is within 30 days, the authorization may scheduled to be placed in service and continue in effect temporarily in the for the fifth year thereafter. The power event of the involuntary transfer of the flow plots submitted can be in the for- facility by operation of law (including mat customarily used by the utility, transfers to receivers, trustees, or pur- but the ERA requires a detailed legend chases under foreclosure or judicial to be included with the power flow sale). This continuance is contingent plots; on the filing of an application for a new (iii) Data on the line design features permit and may be effective until a de- for minimizing television and/or radio cision is made thereon. interference caused by operation of the (b) In the event of a proposed vol- subject transmission facilities; untary transfer of the facility, the per- (iv) A description of the relay protec- mittee and the party to whom the tion scheme, including equipment and transfer would be made shall file a proposed functional devices; joint application with the ERA pursu- (v) After receipt of the system power ant to this paragraph, setting forth in- flow plots, the ERA may require the formation as required by § 205.320 et applicant to furnish system stability seq., together with a statement of rea- analysis for the applicant’s system. sons for the transfer. The application (c) Information regarding the envi- shall be accompanied by a filing fee ronmental impacts shall be provided as pursuant to § 205.326. follows for each routing alternative: (c) No substantial change shall be (1) Statement of the environmental made in any facility authorized by per- impacts of the proposed facilities in- mit or in the operation thereof unless cluding a list of each flood plain, wet- or until such change has been approved land, critical wildlife habitat, navi- by the ERA. gable waterway crossing, Indian land, (d) Permits may be modified or re- or historic site which may be impacted voked without notice by the President

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of the United States, or by the Admin- paring any necessary environmental istrator of the ERA after public notice. document, including an Environmental Impact Statement (EIS), arising from § 205.324 Form and style; number of ERA’s obligation to comply with the copies. National Environmental Policy Act of All applicants shall file an original 1969 (NEPA). ERA will determine and two conformed copies of the appli- whether an environmental assessment cation and all accompanying docu- (EA) or EIS is required within 45 days ments required under §§ 205.320 through of the receipt of the Presidential Per- 205.327. mit application and of environmental information submitted pursuant to 10 § 205.325 Annual report. CFR 205.322 (c) and (d). ERA will use Persons receiving permits to con- these and other sources of information struct, connect, operate or maintain as the basis for making the environ- electric transmission facilities at mental determination: international boundaries shall submit (1) If an EIS is determined to be nec- to the ERA, by February 15 each year, essary, the applicant shall enter into a a report covering each month of the contract with an independent third preceding calendar year, detailing by party, which may be a Government- category the gross amount of kilowatt- owned, contractor-operated National hours of energy received or delivered Laboratory, or a qualified private enti- and the cost and revenue associated ty selected by ERA. The third party with each category. contractor must be qualified to conduct an environmental review and pre- § 205.326 Filing procedures and fees. pare an EIS, as appropriate, under the Applications shall be forwarded to supervision of ERA, and may not have the Office of Utility Systems of the a financial or other interest in the out- Economic Regulatory Administration come of the proceedings. The NEPA and shall be accompanied by a filing process must be completed and ap- fee of $150. The application fee will be proved before ERA will issue a Presi- charged irrespective of the ERA’s dis- dential Permit. position of the application. Fee pay- (2) If an EA is determined to be nec- ment shall be by check, draft, or essary, the applicant may be permitted money order payable to the Treasurer to prepare an environmental assess- of the United States. Copies of applica- ment pursuant to 10 CFR 1506.5(b) for tions shall be furnished to the Federal review and adoption by ERA, or the ap- Energy Regulatory Commission and all plicant may enter into a third party affected State public utility regulatory contract as set forth in this section. agencies. (b) Environmental Review Procedure. Except as provided in paragraphs (c) § 205.327 Other information. and (e) of this section, environmental The applicant may be required after documents, including the EIS, where filing the application to furnish such necessary, will be prepared utilizing supplemental information as the ERA the process set forth above. ERA, the may deem pertinent. Such requests applicant, and the independent third shall be written and a prompt response party, which may be a Government- will be expected. Protest regarding the owned, contractor-operated National supplying of such information should Laboratory or a private entity, shall be directed to the Administrator of the enter into an agreement in which the ERA. applicant will engage and pay directly for the services of the qualified third § 205.328 Environmental requirements party to prepare the necessary environ- for Presidential Permits—Alter- mental documents. The agreement native 1. shall outline the responsibilities of (a) NEPA Compliance. Except as pro- each party and its relationship to the vided in paragraphs (c) and (e) of this other two parties regarding the work section, when an applicant seeks a to be done or supervised. ERA shall ap- Presidential Permit, such applicant prove the information to be developed will be responsible for the costs of pre- and supervise the gathering, analysis

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and presentation of the information. In (1) ERA will determine whether an addition, ERA will have the authority Environmental Impact Statement to approve and modify any statement, (EIS) or an Environmental Assessment analysis, and conclusion contained in (EA) is required within 45 days of re- the environmental documents prepared ceipt of the Presidential Permit appli- by the third party. Before commencing cation and of the environmental infor- preparation of the environmental docu- mation submitted pursuant to 10 CFR ment the third party will execute an 205.322 (c) and (d). ERA will use these ERA-prepared disclosure document and other sources of information as the stating that it does not have any con- basis for making the environmental de- flict of interest, financial or otherwise, termination. in the outcome of either the environ- (2) If an EIS is determined to be nec- mental process or the Permit applica- essary, ERA will notify the applicant tion. of the fee for completing the EIS with- (c) Financial Hardship. Whenever ERA in 90 days after the submission of the determines that a project is no longer application and environmental infor- economically feasible, or that a sub- mation. The fee shall be based on the stantial financial burden would be im- expenses estimated to be incurred by posed by the applicant bearing all of DOE in contracting to prepare the EIS the costs of the NEPA studies, ERA (i.e., the estimated fee charges to ERA may waive the requirement set forth in by the contractor). DOE employee sala- paragraphs (a) and (b) of this section ries and other fixed costs, as set forth and perform the necessary environmental review, completely or in part, in OMB Circular A–25, shall not be in- with its own resources. cluded in the applicant’s fee. Fee payment shall be by check, draft, or (d) Discussions Prior to Filing. Prior to the preparation of any Presidential money order payable to the Treasurer Permit application and environmental of the United States, and shall be sub- report, a potential applicant is encour- mitted to ERA. Upon submission of aged to contact ERA and each affected fifty percent of the environmental fee, State public utility regulatory agency ERA will provide to the applicant a to discuss the scope of the proposed tentative schedule for completion of project and the potential for joint the EIS. State and Federal environmental re- (3) If an EA is determined to be nec- view. essary, the applicant may be permitted (e) Federal Exemption. Upon a showing to prepare an environmental assess- by the applicant that it is engaged in ment pursuant to 40 CFR 1506.5(b) for the transaction of official business of review and adoption by ERA, or the ap- the Federal Government in filing the plicant may choose to have ERA pre- application pursuant to 10 CFR 205.320 pare the EA pursuant to the fee proce- et seq., it will be exempt from the re- dures set forth above. quirements of this section. (4) The NEPA process must be com- [48 FR 33819, July 25, 1983] pleted and approved before ERA will issue a Presidential Permit. § 205.329 Environmental requirements (b) Financial Hardship. Whenever for Presidential Permits—Alter- ERA determines that a project is no native 2. longer economically feasible, or that a (a) NEPA Compliance. Except as pro- substantial financial burden would be vided in paragraph (b) and (e) of this imposed by the applicant bearing all of section, applicants seeking Presi- the costs of the NEPA studies, ERA dential Permits will be financially re- may waive the requirement set forth in sponsible for the expenses of any con- paragraphs (a) and (b) of this section tractor chosen by ERA to prepare any and perform the necessary environ- necessary environmental document mental review, completely or in part, arising from ERA’s obligation to com- with its own resources. ply with the National Environmental (c) Discussions Prior to Filing. Prior to Policy Act of 1969 (NEPA) in issuing the preparation of any Presidential such Presidential Permits: Permit application and environmental

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assessment, a potential applicant is en- the electric energy supply systems in couraged to contact ERA and each af- the United States so that appropriate fected State public utility regulatory Federal emergency response measures agency to discuss the scope of the pro- can be implemented in a timely and ef- posed project and the potential for fective manner. The data also may be joint State and Federal environmental utilized in developing legislative rec- review. ommendations and reports to the Con- (d) Fee Payment. The applicant shall gress. make fee payment for completing the (Approved by the Office of Management and EIS to ERA in the following manner: Budget under control number 1901–0288) (1) 50 percent of the total amount due to be paid within 30 days of receipt of § 205.351 Reporting requirements. the fee information from DOE; For the purpose of this section, a re- (2) 25 percent to be paid upon publica- port or a part of a report may be made tion of the draft EIS; and jointly by two or more entities. Every (3) 25 percent to be paid upon publica- electric utility or other entity engaged tion of the final EIS. in the generation, transmission or dis- If costs are less than the amount col- tribution of electric energy for delivery lected, ERA will refund to the appli- and/or sale to the public shall report cant the excess fee collected. If costs promptly, through the DOE Emergency exceed the initial fee, ERA will fund Operations Center, by telephone, the the balance, unless the increase in occurrence of any event such as de- costs is caused by actions or inactions scribed in paragraphs (a) through (d) of of the applicant, such as the appli- this section. These reporting proce- cant’s failure to submit necessary envi- dures are mandatory. Entities that fail ronmental information in a timely to comply within 24 hours will be con- fashion. If the application is withdrawn tacted and reminded of their reporting at any stage prior to issuance of the obligation. final EIS, the fee will be adjusted to re- (a) Loss of Firm System Loads, caused flect the costs actually incurred; pay- by: ment shall be made by the applicant (1) Any load shedding actions result- within 30 days of above referenced ing in the reduction of over 100 events. megawatts (MW) of firm customer load (e) Federal Exemption. Upon a showing for reasons of maintaining the con- by the applicant that it is engaged in tinuity of the bulk electric power sup- the transaction of official business of ply system. the Federal Government in filing an (2) Equipment failures/system oper- application pursuant to 10 CFR 205.320 ational actions attributable to the loss et seq., it will be exempt from the re- of firm system loads for a period in ex- quirements of this section. cess of 15 minutes, as described below: [48 FR 33820, July 25, 1983] (i) Reports from entities with a previous year recorded peak load of over REPORT OF MAJOR ELECTRIC UTILITY 3000 MW are required for all such losses SYSTEM EMERGENCIES of firm loads which total over 300 MW. (ii) Reports from all other entities AUTHORITY: Department of Energy Organi- are required for all such losses of firm zation Act, Pub. L. 95–91 (42 U.S.C. 7101); Fed- loads which total over 200 MW or 50 eral Power Act, Pub. L. 66–280 (16 U.S.C. 791 percent of the system load being sup- et seq.) plied immediately prior to the inci- SOURCE: Sections 205.350 through 205.353 ap- dent, whichever is less. pear at 51 FR 39745, Oct. 31, 1986, unless oth- (3) Other events or occurrences which erwise noted. result in a continuous interruption for 3 hours or longer to over 50,000 cus- § 205.350 General purpose. tomers, or more than 50 percent of the The purpose of this rule is to estab- total customers being served imme- lish a procedure for the Office of Inter- diately prior to the interruption, national Affairs and Energy Emer- whichever is less. gencies (IE) to obtain current informa- (b) Voltage Reductions or Public Ap- tion regarding emergency situations on peals:

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(1) Reports are required for any an- § 205.352 Information to be reported. ticipated or actual system voltage re- The emergency situation data shall ductions of 3 percent or greater for purposes of maintaining the continuity of be supplied to the DOE Emergency Op- the bulk electric power supply system. erations Center in accordance with the (2) Reports are required for any current DOE pamphlet on reporting issuance of a public appeal to reduce procedures. The initial report shall in- the use of electricity for purposes of clude the utility name; the area af- maintaining the continuity of the bulk fected; the time of occurrence of the electric power system. initiating event; the duration or an es- (c) Vulnerabilities that could Impact timate of the likely duration; an esti- System Reliability: mate of the number of customers and (1) Reports are required for any ac- amount of load involved; and whether tual or suspected act(s) of physical sab- any known critical services such as otage (not vandalism) or terrorism di- hospitals, military installations, rected at an electric power supply sys- pumping stations or air traffic control tem, local or regional, in an attempt to systems, were or are interrupted. To either: the extent known or reasonably sus- (i) Disrupt or degrade the service re- pected, the report shall include a de- liability of the local or regional bulk scription of the events initiating the electric power supply system, or disturbance. The DOE may require fur- (ii) Disrupt, degrade, or deny bulk ther clarification during or after res- electric power service to: toration of service. (A) A specific facility (industrial, military, governmental, private), or (Approved by the Office of Management and Budget under control number 1901–0288) (B) A specific service (transportation, communications), or § 205.353 Special investigation and re- (C) A specific locality (town, city, ports. county). (2) Reports are required for any ab- If directed by the Director, Office of normal emergency system operating Energy Emergency Operations in writ- condition(s) or other event(s) which in ing and noticed in the FEDERAL REG- the judgment of the reporting entity ISTER, a utility or other subject entity could or would constitute a hazard to experiencing a condition described in maintaining the continuity of the bulk § 205.351 above shall submit a full report electric power supply system. Exam- of the technical circumstances sur- ples will be provided in the DOE pam- rounding a specific power system dis- phlet on reporting procedures. turbance, including the restoration (d) Fuel Supply Emergencies: procedures utilized. The report shall be (1) Reports are required for any an- filed at such times as may be directed ticipated or existing fuel supply emer- by the Director, Office of Energy Emer- gency situation which would threaten gency Operations. the continuity of the bulk electric (Approved by the Office of Management and power supply system, such as: Budget under control number 1901–0288) (i) Fuel stocks or hydro project water storage levels are at 50 percent (or less) EMERGENCY INTERCONNECTION OF ELEC- of normal for that time of the year, TRIC FACILITIES AND THE TRANSFER OF and a continued downward trend is pro- ELECTRICITY TO ALLEVIATE AN EMER- jected. GENCY SHORTAGE OF ELECTRIC (ii) Unscheduled emergency genera- POWER tion is dispatched causing an abnormal

use of a particular fuel type, such that AUTHORITY: Department of Energy Organi- the future supply or stocks of that fuel zation Act, Pub. L. 95–91, 91 Stat. 565 (42 could reach a level which threatens the U.S.C. 7101). Federal Power Act, Pub. L. 66– reliability or adequacy of electric serv- 280, 41 Stat. 1063 (16 U.S.C. 791(a)) ice. SOURCE: Sections 205.370 through 205.379 ap- (Approved by the Office of Management and pear at 46 FR 39987, Aug. 6, 1981, unless other- Budget under control number 1901–0288) wise noted.

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§ 205.370 Applicability. rangements to resolve the problem Sections 202(c) and 202(d) of the Fed- until new facilities become available, eral Power Act are applicable to any so that a continuing emergency order ‘‘entity’’ which owns or operates elec- is not needed. Situations where a tric power generation, transmission or shortage of electric energy is projected distribution facilities. An ‘‘entity’’ is a due solely to the failure of parties to private or public corporation (utility), agree to terms, conditions or other eco- a governmental agency, a munici- nomic factors relating to service, gen- pality, a cooperative or a lawful asso- erally will not be considered as emer- ciation of the foregoing. Under this gencies unless the inability to supply section, the DOE has the authority to electric service is imminent. Where an order the temporary connection of fa- electricity outage or service inad- cilities, or the generation or delivery equacy qualifies for a section 202(c) of electricity, which it deems nec- order, contractual difficulties alone essary to alleviate an emergency. Such will not be sufficient to preclude the orders shall be effective for the time issuance of an emergency order. specified and will be subject to the terms and conditions the DOE speci- § 205.372 Filing procedures; number of fies. The DOE retains the right to can- copies. cel, modify or otherwise change any An original and two conformed copies order, with or without notice, hearing, of the applications and reports required or report. Requests for action under under §§ 205.370 through 205.379 shall be these regulations will be accepted from filed with the Division of Power Supply any ‘‘entity,’’ State Public Utility and Reliability, Department of Energy. Commission, State Energy Agency, or Copies of all documents also shall be State Governor. Actions under these served on: regulations also may be initiated by the DOE on its own motion. Orders (a) The Federal Energy Regulatory under this authority may be made ef- Commission; fective without prior notice. (b) Any State Regulatory Agency having responsibility for service stand- § 205.371 Definition of emergency. ards, or rates of the ‘‘entities’’ that are ‘‘Emergency,’’ as used herein, is de- affected by the requested order; fined as an unexpected inadequate sup- (c) Each ‘‘entity’’ suggested as a po- ply of electric energy which may result tential source for the requested emer- from the unexpected outage or break- gency assistance; down of facilities for the generation, (d) Any ‘‘entity’’ that may be a po- transmission or distribution of electric tential supplier of transmission serv- power. Such events may be the result ices; of weather conditions, acts of God, or (e) All other ‘‘entities’’ not covered unforeseen occurrences not reasonably under paragraphs (c) and (d) of this sec- within the power of the affected ‘‘enti- tion which may be directly affected by ty’’ to prevent. An emergency also can the requested order; and result from a sudden increase in cus- (f) The appropriate Regional Reli- tomer demand, an inability to obtain ability Council. adequate amounts of the necessary fuels to generate electricity, or a regu- § 205.373 Application procedures. latory action which prohibits the use of certain electric power supply facili- Every application for an emergency ties. Actions under this authority are order shall set forth the following in- envisioned as meeting a specific inad- formation as required. This informa- equate power supply situation. Ex- tion shall be considered by the DOE in tended periods of insufficient power determining that an emergency exists supply as a result of inadequate plan- and in deciding to issue an order pursu- ning or the failure to construct nec- ant to sections 202(c) and 202(d) of the essary facilities can result in an emer- Federal Power Act. gency as contemplated in these regula- (a) The exact legal name of the appli- tions. In such cases, the impacted ‘‘en- cant and of all other ‘‘entities’’ named tity’’ will be expected to make firm ar- in the application.

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(b) The name, title, post office ad- source to alleviate the emergency and dress, and telephone number of the per- a listing of any other ‘‘entities’’ that son to whom correspondence in regard may be directly affected by the re- to the application shall be addressed. quested order. (c) The political subdivision in which (j) Specific proposals to compensate each ‘‘entity’’ named in the application the supplying ‘‘entities’’ for the emer- operates, together with a brief descrip- gency services requested and to com- tion of the area served and the business pensate any transmitting ‘‘entities’’ conducted in each location. for services necessary to deliver such (d) Each application for a section power. 202(c) order shall include the following (k) A showing that, to the best of the baseline data: applicant’s knowledge, the requested (1) Daily peak load and energy re- relief will not unreasonably impair the quirements for each of the past 30 days reliability of any ‘‘entity’’ directly af- and projections for each day of the ex- fected by the requested order to render pected duration of the emergency; adequate service to its customers. (2) All capacity and energy receipts (l) Description of the facilities to be or deliveries to other electric utilities used to transfer the requested emer- for each of the past 30 days, indicating gency service to the applicant’s sys- the classification for each transaction; tem. (3) The status of all interruptible cus- (1) If a temporary interconnection tomers for each of the past 30 days and under the provisions of section 202(c) is the anticipated status of these cus- proposed independently, the following tomers for each day of the expected du- additional information shall be sup- ration of the emergency, assuming plied for each such interconnection: both the granting and the denial of the (i) Proposed location; relief requested herein; (ii) Required thermal capacity or (4) All scheduled capacity and energy power transfer capability of the inter- receipts or deliveries to other electric connection; utilities for each day of the expected (iii) Type of emergency services re- duration of the emergency. quested, including anticipated dura- (e) A description of the situation and tion; a discussion of why this is an emer- (iv) An electrical one line diagram; gency, including any necessary background information. This should in- (v) A description of all necessary ma- clude any contingency plan of the ap- terials and equipment; and plicant and the current level of imple- (vi) The projected length of time nec- mentation. essary to complete the interconnec- (f) A showing that adequate electric tion. service to firm customers cannot be (2) If the requested emergency assist- maintained without additional power ance is to be supplied over existing fa- transfers. cilities, the following information shall (g) A description of any conservation be supplied for each existing inter- or load reduction actions that have connection: been implemented. A discussion of the (i) Location; achieved or expected results or these (ii) Thermal capacity of power transactions should be included. fer capability of interconnection facili- (h) A description of efforts made to ties; and obtain additional power through vol- (iii) Type and duration of emergency untary means and the results of such services requested. efforts; and a showing that the poten- (m) A general or key map on a scale tial sources of power and/or trans- not greater than 100 kilometers to the mission services designated pursuant centimeter showing, in separate colors, to paragraphs (i) through (k) of this the territory serviced by each ‘‘entity’’ section informed that the applicant be- named in the application; the location lieved that an emergency existed with- of the facilities to be used for the gen- in the meaning of § 205.371. eration and transmission of the re- (i) A listing of proposed sources and quested emergency service; and all con- amounts of power necessary from each nection points between systems.

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(n) An estimate of the construction ply capability when, combined with costs of any proposed temporary facili- other conditions, the projected energy ties and a statement estimating the ex- deficiency upon the applicant’s system pected operation and maintenance without emergency action by the DOE, costs on an annualized basis. (Not re- will equal or exceed 10 percent of the quired on section 202(d) applications.) applicant’s then normal daily net en- (o) Applicants may be required to ergy for load, or will cause the appli- furnish such supplemental information cant to be unable to meet its normal as the DOE may deem pertinent. peak load requirements based upon use of all of its otherwise available re- § 205.374 Responses from ‘‘entities’’ sources so that it is unable to supply designated in the application. adequate electric service to its ulti- Each ‘‘entity’’ designated as a poten- mate customers. The following condi- tial source of emergency assistance or tions will be considered in determining as a potential supplier of transmission that a system has inadequate fuel or services and which has received a copy energy supply capability: of the application under § 205.373, shall (1) System coal stocks are reduced to have three (3) calendar days from the 30 days (or less) of normal burn days time of receipt of the application to and a continued downward trend in file the information designated below stock is projected; with the DOE. The DOE will grant ex- (2) System residual oil stocks are re- tensions of the filing period when ap- duced to 15 days (or less) of normal propriate. The designated ‘‘entities’’ burn days and a continued downward shall provide an analysis of the impact trend in stocks is projected; the requested action would have on its (3) System distillate oil stocks which system reliability and its ability to cannot be replaced by alternate fuels supply its own interruptible and firm are reduced to 15 days (or less) of nor- customers. The effects of the requested mal burn days and a continued down- action on the ability to serve firm ward trend in stocks is projected; loads shall be clearly distinguished (4) System natural gas deliveries from the ability to serve contractually which cannot be replaced by alternate interruptible loads. The designated fuels have been or will be reduced 20 ‘‘entity’’ also may provide other infor- percent below normal requirements mation relevant to the requested ac- and no improvement in natural gas de- tion, which is not included in the reli- liveries is projected within 30 days; ability analysis. Copies of any response (5) Delays in nuclear fuel deliveries shall be provided to the applicant, the will extend a scheduled refueling shut- Federal Energy Regulatory Commis- down by more than 30 days; and sion, any State Regulatory Agency (6) Water supplies required for power having responsibility for service stand- generation have been reduced to the ards or rates of any ‘‘entity’’ that may level where the future adequacy of the be directly involved in the proposed ac- power supply may be endangered and tion, and the appropriate Regional no near term improvement in water Electric Reliability Council. Pursuant supplies is projected. to section 202(c) of the Federal Power The use of the prescribed criteria does Act, DOE may issue an emergency not preclude an applicant from claim- order even though a designated ‘‘enti- ing the existence of an emergency ty’’ has failed to file a timely response. when its stocks of fuel or water exceed the amounts and time frames specified § 205.375 Guidelines defining inad- above. equate fuel or energy supply. An inadequate utility system fuel in- § 205.376 Rates and charges. ventory or energy supply is a matter of The applicant and the generating or managerial and engineering judgment transmitting systems from which based on such factors as fuels in stock, emergency service is requested are en- fuels en route, transportation time, couraged to utilize the rates and and constraints on available storage fa- charges contained in approved existing cilities. A system may be considered to rate schedules or to negotiate mutu- have an inadequate fuel or energy sup- ally satisfactory rates for the proposed

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transactions. In the event that the (d) Any substantial change in the in- DOE determines that an emergency ex- formation provided under § 205.373 shall ists under section 202(c), and the ‘‘en- be promptly reported to the DOE. tities’’ are unable to agree on the rates (Approved by the Office of Management and to be charged, the DOE shall prescribe Budget under Control No. 1904–0066) the conditions of service and refer the [46 FR 39989, Aug. 6, 1981, as amended at 46 rate issues to the Federal Energy Reg- FR 63209, Dec. 31, 1981] ulatory Commission for determination by that agency in accordance with its § 205.378 Disconnection of temporary standards and procedures. facilities. Upon the termination of any emer- § 205.377 Reports. gency for the mitigation of which the In addition to the information speci- DOE ordered the construction of tem- fied below, the DOE may require addi- porary facilities, such facilities shall tional reports as it deems necessary. be disconnected and any temporary (a) Where the DOE has authorized the construction removed or otherwise dis- temporary connection of transmission posed of, unless application is made as provided in § 205.379 for permanent con- facilities, all ‘‘entities’’ whose trans- nection for emergency use. This dis- mission facilities are thus temporarily connection and removal of temporary interconnected shall report the fol- facilities shall be accomplished within lowing information to the DOE within 30 days of the termination of the emer- 15 days following completion of the gency unless an extension is granted by interconnection: the DOE. The DOE shall be notified (1) The date the temporary inter- promptly when such removal of facili- connection was completed; ties is completed. (2) The location of the interconnection; § 205.379 Application for approval of (3) A description of the interconnec- the installation of permanent facilities for emergency use only. tion; and (4) A one-line electric diagram of the Application for DOE approval of a interconnection. permanent connection for emergency use only shall conform with the re- (b) Where the DOE orders the trans- quirements in § 205.373. However, the fer of power, the ‘‘entity’’ receiving baseline data specified in § 205.373(d) such service shall report the following need not be included in an application information to the DOE by the 10th of made under this section. In addition, each month for the preceding month’s the application shall state in full the activity for as long as such order shall reasons why such permanent connec- remain in effect: tion for emergency use is in the public (1) Amounts of capacity and/or en- interest. ergy received each day; (2) The name of the supplier; PART 207—COLLECTION OF (3) The name of any ‘‘entity’’ sup- INFORMATION plying transmission services; and (4) Preliminary estimates of the asso- Subpart A—Collection of Information ciated costs. Under the Energy Supply and Environ- (c) Where the DOE has approved the mental Coordination Act of 1974 installation of permanent facilities Sec. that will be used only during emer- 207.1 Purpose. gencies, any use of such facilities shall 207.2 Definitions. be reported to the DOE within 24 hours. 207.3 Method of collecting energy informa- Details of such usage shall be furnished tion under ESECA. as deemed appropriate by the DOE 207.4 Confidentiality of energy information. 207.5 Violations. after such notification. 207.6 Notice of probable violation and remedial order. 207.7 Sanctions. 207.8 Judicial actions.

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207.9 Exceptions, exemptions, interpreta- § 207.3 Method of collecting energy in- tions, rulings and rulemaking. formation under ESECA. AUTHORITY: 15 U.S.C. 787 et seq.; 15 U.S.C. (a) Whenever the Administrator de- 791 et seq.; E.O. 11790, 39 FR 23185; 28 U.S.C. termines that: 2461 note. (1) Certain energy information is nec- SOURCE: 40 FR 18409, Apr. 28, 1975, unless essary to assist in the formulation of otherwise noted. energy policy or to carry out the purposes of the ESECA of the EPAA; and Subpart A—Collection of Informa- (2) Such energy information is not tion Under the Energy Supply available to DOE under the authority and Environmental Coordina- of statutes other than ESECA or that tion Act of 1974 such energy information should, as a matter of discretion, be collected under § 207.1 Purpose. the authority of ESECA; The purpose of this subpart is to set He shall require reports of such infor- forth the manner in which energy in- mation to be submitted to DOE at least formation which the Administrator is every ninety calendar days. authorized to obtain by sections 11 (a) (b) The Administrator may require and (b) of ESECA will be collected. such reports of any person who is engaged in the production, processing, re- § 207.2 Definitions. fining, transportation by pipeline, or As used in this subpart: distribution (at other than the retail Administrator means the Federal En- level) of energy resources. ergy Administrator of his delegate. (c) The Administrator may require Energy information includes all infor- such reports by rule, order, question- mation in whatever form on (1) fuel re- naire, or such other means as he deter- serves, exploration, extraction, and en- mines appropriate. ergy resources (including petro- (d) Whenever reports of energy infor- chemical feedstocks) wherever located; mation are requested under this sub- (2) production, distribution, and con- part, the rule, order, questionnaire, or sumption of energy and fuels, wherever other means requesting such reports carried on; and (3) matters relating to shall contain (or be accompanied by) a energy and fuels such as corporate recital that such reports are being re- structure and proprietary relation- quested under the authority of ESECA. ships, costs, prices, capital investment, (e) In addition to requiring reports, and assets, and other matters directly the Administrator may, at his discre- related thereto, wherever they exist. tion, in order to obtain energy infor- ESECA means the Energy Supply and mation under the authority of ESECA: Environmental Coordination Act of (1) Sign and issue subpoenas in ac- 1974 (Pub. L. 93–319). cordance with the provisions of § 205.8 EPAA means the Emergency Petro- of this chapter for the attendance and leum Allocation Act of 1973 (Pub. L. 93– testimony of witnesses and the produc- 159). tion of books, records, papers, and DOE means the Department of En- other documents; ergy. Person means any natural person, (2) Require any person, by rule or corporation, partnership, association, order, to submit answers in writing to consortium, or any entity organized for interrogatories, requests for reports or a common business purpose, wherever for other information, with such an- situated, domiciled, or doing business, swers or other submissions made with- who directly or through other persons in such reasonable period as is speci- subject to their control does business fied in the rule or order, and under in any part of the United States. oath; and United States, when used in the geo- (3) Administer oaths. graphical sense, means the States, the Any such subpoena or rule or order District of Columbia, Puerto Rico, and shall contain (or be accompanied by) a the territories and possessions of the recital that energy information is re- United States. quested under the authority of ESECA.

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(f) For the purpose of verifying the (b) Whenever the Administrator re- accuracy of any energy information requests reports of energy information quested, acquired, or collected by the under this subpart, he may specify (in DOE, the Administrator, or any officer the rule, order or questionnaire or or employee duly designated by him, other means by which he has requested upon presenting appropriate creden- such reports) the nature of the showing tials and a written notice from the Ad- required to be made in order to satisfy ministrator to the owner, operator, or DOE that certain energy information agent in charge, may— contained in such reports warrants (1) Enter, at reasonable times, any confidential treatment in accordance business premise of facility; and with this section. He shall, to the max- (2) Inspect, at reasonable times and imum extent practicable, either before in a reasonable manner, any such or after requesting reports, by ruling premise or facility, inventory and sam- or otherwise, inform respondents pro- ple any stock of energy resources viding energy information pursuant to therein, and examine and copy books, this subpart of whether such informa- records, papers, or other documents, tion will be made available to the pub- relating to any such energy informa- lic pursuant to requests under the tion. Freedom of Information Act (5 U.S.C. Such written notice shall reasonably 552). describe the premise or facility to be inspected, the stock to be inventoried § 207.5 Violations. or sampled, or the books, records, pa- Any practice that circumvents or pers or other documents to be exam- contravenes or results in a circumven- ined or copied. tion or contravention of the requirements of any provision of this subpart § 207.4 Confidentiality of energy infor- or any order issued pursuant thereto is mation. a violation of the DOE regulations (a) Information obtained by the DOE stated in this subpart. under authority of ESECA shall be available to the public in accordance § 207.6 Notice of probable violation with the provisions of part 202 of this and remedial order. chapter. Upon a showing satisfactory (a) Purpose and scope. (1) This section to the Administrator by any person establishes the procedures for deter- that any energy information obtained mining the nature and extent of viola- under this subpart from such person tions of this subpart and the proce- would, if made public, divulge methods dures for issuance of a notice of prob- or processes entitled to protection as able violation, a remedial order or a re- trade secrets or other proprietary in- medial order for immediate compli- formation of such person, such infor- ance. mation, or portion thereof, shall be (2) When the DOE discovers that deemed confidential in accordance with there is reason to believe a violation of the provisions of section 1905 of title 18, any provision of this subpart, or any United States Code; except that such order issued thereunder, has occurred, information, or part thereof, shall not is continuing or is about to occur, the be deemed confidential pursuant to DOE may conduct proceedings to deter- that section for purposes of disclosure, mine the nature and extent of the vio- upon request, to (1) any delegate of the lation and may issue a remedial order DOE for the purpose of carrying out thereafter. The DOE may commence ESECA or the EPAA, (2) the Attorney such proceeding by serving a notice of General, the Secretary of the Interior, probable violation or by issuing a re- the Federal Trade Commission, the medial order for immediate compli- Federal Power Commission, or the ance. General Accounting Office, when nec- (b) Notice of probable violation. (1) The essary to carry out those agencies’ du- DOE may begin a proceeding under this ties and responsibilities under ESECA subpart by issuing a notice of probable and other statutes, and (3) the Con- violation if the DOE has reason to be- gress, or any Committee of Congress lieve that a violation has occurred, is upon request of the Chairman. continuing, or is about to occur.

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(2) Within 10 days of the service of a (c) Remedial order. (1) If the DOE notice of probable violation, the person finds, after the 10-day period provided upon whom the notice is served may in § 207.6(b)(2), that a violation has oc- file a reply with the DOE office that curred, is continuing, or is about to issued the notice of probable violation occur, the DOE may issue a remedial at the address provided in § 205.12 of order. The order shall include a written this chapter. The DOE may extend the opinion setting forth the relevant facts 10-day period for good cause shown. and the legal basis of the remedial (3) The reply shall be in writing and order. signed by the person filing it. The reply (2) A remedial order issued under this shall contain a full and complete state- subpart shall be effective upon ment of all relevant facts pertaining to issuance, in accordance with its terms, the act or transaction that is the sub- until stayed, suspended, modified or re- ject of the notice of probable violation. scinded. The DOE may stay, suspend, Such facts shall include a complete modify or rescind a remedial order on statement of the business or other rea- its own initiative or upon application sons that justify the act or trans- by the person to whom the remedial action, it appropriate; a detailed de- order is issued. Such action and appli- scription of the act or transaction; and cation shall be in accordance with the a full discussion of the pertinent provi- procedures for such proceedings pro- sions and relevant facts reflected in vided for in part 205 of this chapter. any documents submitted with the (3) A remedial order may be referred reply. Copies of all relevant documents at any time to the Department of Jus- shall be submitted with the reply. tice for appropriate action in accord- (4) The reply shall include a discus- ance with § 207.7. sion of all relevant authorities, includ- (d) Remedial order for immediate com- ing, but not limited to, DOE rulings, pliance. (1) Notwithstanding paragraphs regulations, interpretations, and deci- (b) and (c) of this section, the DOE may sions on appeals and exceptions relied issue a remedial order for immediate upon to support the particular position taken. compliance, which shall be effective (5) The reply should indicate whether upon issuance and until rescinded or the person requests or intends to re- suspended, if it finds: quest a conference regarding the no- (i) There is a strong probability that tice. Any request not made at the time a violation has occurred, is continuing of the reply shall be made as soon or is about to occur; thereafter as possible to insure that (ii) Irreparable harm will occur un- the conference is held when it will be less the violation is remedied imme- most beneficial. A request for a con- diately; and ference must conform to the require- (iii) The public interest requires the ments of subpart M of part 205 of this avoidance of such irreparable harm chapter. through immediate compliance and (6) If a person has not filed a reply waiver of the procedures afforded under with the DOE within the 10-day period paragraphs (b) and (c) of this section. provided, and the DOE has not ex- (2) A remedial order for immediate tended the 10-day period, the person compliance shall be served promptly shall be deemed to have conceded the upon the person against whom such accuracy of the factual allegations and order is issued by telex or telegram, legal conclusions stated in the notice with a copy served by registered or cer- of probable violation. tified mail. The copy shall contain a (7) If the DOE finds, after the 10-day written statement of the relevant facts period provided in § 207.6(b)(2), that no and the legal basis for the remedial violation has occurred, is continuing, order for immediate compliance, in- or is about to occur, or that for any cluding the findings required by para- reason the issuance of a remedial order graph (d)(1) of this section. would not be appropriate, it shall no- (3) The DOE may rescind or suspend a tify, in writing, the person to whom a remedial order for immediate compli- notice of probable violation has been ance if it appears that the criteria set issued that the notice is rescinded. forth in paragraph (d)(1) of this section

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are no longer satisfied. When appro- more than $5,000 for each violation. priate, however, such a suspension or Criminal violations are prosecuted by rescission may be accompanied by a the Department of Justice upon refer- notice of probable violation issued ral by the DOE. under paragraph (b) of this section. (c) Civil Penalties. (1) Any person who (4) If at any time in the course of a violates any provision of this subpart proceeding commenced by a notice of or any order issued pursuant thereto probable violation the criteria set forth shall be subject to a civil penalty of in paragraph (d)(1) of this section are not more than $2,750 for each violation. satisfied, the DOE may issue a reme- Actions for civil penalties are pros- dial order for immediate compliance, ecuted by the Department of Justice even if the 10-day period for reply spec- upon referral by the DOE. ified in § 207.6(b)(2) of this part has not (2) When the DOE considers it to be expired. appropriate or advisable, the DOE may (5) At any time after a remedial order compromise and settle, and collect for immediate compliance has become civil penalties. effective the DOE may refer such order [40 FR 18409, Apr. 28, 1975, as amended at 62 to the Department of Justice for appro- FR 46183, Sept. 2, 1997] priate action in accordance with § 207.7 of this part. § 207.8 Judicial actions. (e) Remedies. A remedial order or a re- (a) Enforcement of subpoenas; con- medial order for immediate compliance tempt. Any United States district court may require the person to whom it is within the jurisdiction of which any in- directed to take such action as the quiry is carried on may, upon petition DOE determines is necessary to elimi- by the Attorney General at the request nate or to compensate for the effects of of the Administrator, in the case of re- a violation. fusal to obey a subpoena or order of the (f) Appeal. (1) No notice of probable Administrator issued under this sub- violation issued pursuant to this subpart, issue an order requiring compli- part shall be deemed to be an action of ance. Any failure to obey such an order which there may be an administrative of the court may be punished by the appeal. court as contempt. (2) Any person to whom a remedial (b) Injunctions. Whenever it appears order or a remedial order for imme- to the Administrator that any person diate compliance is issued under this has engaged, is engaged, or is about to subpart may file an appeal with the engage in any act or practice consti- DOE Office of Exceptions and Appeals tuting a violation of any regulation or in accordance with the procedures for order issued under this subpart, the such appeal provided in subpart H of Administrator may request the Attor- part 205 of this chapter. The appeal ney General to bring a civil action in must be filed within 10 days of service the appropriate district court of the of the order from which the appeal is United States to enjoin such acts or taken. practices and, upon a proper showing, a temporary restraining order or pre- § 207.7 Sanctions. liminary or permanent injunction shall (a) General. (1) Penalties and sanc- be granted without bond. The relief tions shall be deemed cumulative and sought may include a mandatory in- not mutually exclusive. junction commanding any person to (2) Each day that a violation of the comply with any provision of such provisions of this subpart or any order order or regulation, the violation of issued pursuant thereto continues shall which is prohibited by section 12(a) of be deemed to constitute a separate vio- ESECA, as implemented by this sub- lation within the meaning of the provi- part. sions of this subpart relating to criminal fines and civil penalties. § 207.9 Exceptions, exemptions, inter- (b) Criminal penalties. Any person who pretations, rulings and rulemaking. willfully violates any provision of this Applications for exceptions, exemp- subpart or any order issued pursuant tions or requests for interpretations re- thereto shall be subject to a fine of not lating to this subpart shall be filed in

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accordance with the procedures pro- ment the information and allocation vided in subparts D, E and F, respec- provisions of the International Energy tively, of part 205 of this chapter. Rul- Program (IEP). The requirements of ings shall be issued in accordance with this part do not apply to activities the procedures of subpart K of part 205 other than those for which section 252 of this chapter. Rulemakings shall be of EPCA makes available a defense to undertaken in accordance with the pro- the antitrust laws. cedures provided in subpart L of part 205 of this chapter. § 209.2 Delegation. To the extent otherwise permitted by PART 209—INTERNATIONAL law, any authority, duty, or responsi- VOLUNTARY AGREEMENTS bility vested in DOE or the Adminis- trator under these regulations may be Subpart A—General Provisions delegated to any regular full-time em- Sec. ployee of the Department of Energy, 209.1 Purpose and scope. and, by agreement, to any regular full- 209.2 Delegation. time employee of the Department of 209.3 Definitions. Justice or the Department of State.

Subpart B—Development of Voluntary § 209.3 Definitions. Agreements For purposes of this part— 209.21 Purpose and scope. (a) Administrator means the Adminis- 209.22 Initiation of meetings. trator of the Department of Energy. 209.23 Conduct of meetings. 209.24 Maintenance of records. (b) Information and allocation provisions of the International Energy Program Subpart C—Carrying Out of Voluntary means the provisions of chapter V of Agreements and Developing and Car- the Program relating to the Informa- rying Out of Plans of Actions tion System, and the provisions at chapters III and IV thereof relating to 209.31 Purpose and scope. 209.32 Initiation of meetings. the international allocation of petro- 209.33 Conduct of meetings. leum. 209.34 Maintenance of records. (c) International Energy Agency (IEA) means the International Energy Agen- Subpart D—Availability of Information cy established by Decision of the Coun- Relating to Meetings and Communications cil of the Organization for Economic 209.41 Availability of information relating Cooperation and Development, dated to meetings and communications. November 15, 1974.

AUTHORITY: Federal Energy Administra- (d) International Energy Program (IEP) tion Act of 1974, Pub. L. 93–275; E.O. 11790, 39 means the program established pursu- FR 23185; Energy Policy and Conservation ant to the Agreement on an Inter- Act, Pub. L. 94–163. national Energy Program signed at SOURCE: 41 FR 6754, Feb. 13, 1976, unless Paris on November 18, 1974, including otherwise noted. (1) the Annex entitled ‘‘Emergency Re- serves’’, (2) any amendment to such Subpart A—General Provisions Agreement which includes another nation as a Party to such Agreement, and § 209.1 Purpose and scope. (3) any technical or clerical amend- This part implements the provisions ment to such Agreement. of the Energy Policy and Conservation (e) International energy supply emer- Act (EPCA) authorizing the Adminis- gency means any period (1) beginning trator to prescribe standards and pro- on any date which the President deter- cedures by which persons engaged in mines allocation of petroleum products the business of producing, trans- to nations participating in the inter- porting, refining, distributing, or stor- national energy program is required by ing petroleum may develop and carry chapters III and IV of such program, out voluntary agreements, and plans of and (2) ending on a date on which he action which are required to imple- determines such allocation is no longer

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required. Such a period shall not ex- § 209.23 Conduct of meetings. ceed 90 days, except where the Presi- (a) Meetings to develop a voluntary dent establishes one or more additional agreement held pursuant to this sub- periods by making the determination part shall be open to all interested per- under paragraph (e)(1) of this section. sons. Interested persons desiring to at- (f) Potential participant means any tend meetings under this subpart may person engaged in the business of pro- be required pursuant to notice to ad- ducing, transporting, refining, distrib- vise the Administrator in advance. uting, or storing petroleum products; (b) Interested persons may, as set out ‘‘participant’’ means any such person in notice provided by the Adminis- who agrees to participate in a vol- trator, present data, views, and argu- untary agreement pursuant to a re- ments orally and in writing, subject to quest to do so by the Administrator. such reasonable limitations with re- (g) Petroleum or petroleum products spect to the manner of presentation as means crude oil, residual fuel oil, or the Administrator may impose. any refined petroleum product (including any natural gas liquid and any nat- § 209.24 Maintenance of records. ural gas liquid product). (a) The Administrator shall keep a verbatim transcript of any meeting Subpart B—Development of held pursuant to this subpart. Voluntary Agreements (b)(1) Except as provided in paragraphs (b) (2) through (4) of this sec- § 209.21 Purpose and scope. tion, potential participants shall keep (a) This subpart establishes the a full and complete record of any com- standards and procedures by which per- munications (other than in a meeting sons engaged in the business of pro- held pursuant to this subpart) between ducing, transporting, refining, distrib- or among themselves for the purpose of uting. or storing petroleum products developing a voluntary agreement shall develop voluntary agreements under this part. When two or more po- which are required to implement the tential participants are involved in allocation and information provisions such a communication, they may agree of the International Energy Program. among themselves who shall keep such (b) This subpart does not apply to record. Such record shall include the meetings of bodies created by the names of the parties to the commu- International Energy Agency. nication and the organizations, if any, which they represent; the date of the § 209.22 Initiation of meetings. communication; the means of commu- (a) Any meeting held for the purpose nication; and a description of the com- of developing a voluntary agreement munication in sufficient detail to con- involving two or more potential par- vey adequately its substance. ticipants shall be initiated and chaired (2) Where any communication is writ- by the Administrator or other regular ten (including, but not limited to, full-time Federal employee designated telex, telegraphic, telecopied, micro- by him. filmed and computer printout mate- (b) DOE shall provide notice of meet- rial), and where such communication ings held pursuant to this subpart, in demonstrates on it face that the origi- writing, to the Attorney General, the nator or some other source furnished a Federal Trade Commission, and to the copy of the communication to the Of- Speaker of the House and the President fice of International Affairs, Depart- of the Senate for delivery to the appro- ment of Energy with the notation priate committees of Congress, and to ‘‘Voluntary Agreement’’ marked on the the public through publication in the first page of the document, no partici- FEDERAL REGISTER. Such notice shall pant need record such a communica- identify the time, place, and agenda of tion or send a further copy to the De- the meeting, and such other matters as partment of Energy. The Department the Administrator deems appropriate. of Energy may, upon written notice to Notice in the FEDERAL REGISTER shall potential participants, from time to be published at least seven days prior time, or with reference to particular to the date of the meeting. types of documents, require deposit

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with other offices or officials of the De- section, be recorded by such official as partment of Energy. Where such com- provided in § 204.5. munication demonstrates that it was (Approved by the Office of Management and sent to the Office of International Af- Budget under Control No. 1905–0079) fairs, Department of Energy with the notation ‘‘Voluntary Agreement’’ (Federal Energy Administration Act of 1974, Pub. L. 93–275, as amended, E.O. 11790, 39 FR marked on the first page of the docu- 23185; E. O. 11930, 41 FR 32397; Energy Policy ment, or such other offices or officials and Conservation Act, Pub. L. 94–163; E.O. in the Department of Energy has des- 11912, 41 FR 15825; Department of Energy Or- ignated pursuant to this section it ganization Act, Pub. L. 95–91; 91 Stat. 565; shall satisfy paragraph (c) of this sec- E.O. 12009, 42 FR 46267) tion, for the purpose of deposit with [41 FR 6754, Feb. 13, 1976, as amended at 43 the Department of Energy. FR 12854, Mar. 28, 1978; 46 FR 63209, Dec. 31, (3) To the extent that any commu- 1981] nication is procedural, administrative or ministerial (for example, if it in- Subpart C—Carrying Out of Vol- volves the location of a record, the untary Agreements and De- place of a meeting, travel arrange- veloping and Carrying Out of ments, or similar matters), only a brief Plans of Actions notation of the date, time, persons involved and description of the commu- § 209.31 Purpose and scope. nication need be recorded. This subpart establishes the stand- (4) To the extent that any commu- ards and procedures by which persons nication involves matters which reca- engaged in the business of producing, pitulate matters already contained in a transporting, refining, distributing, or full and complete record, the substance storing petroleum products shall carry of such matters shall be identified, but out voluntary agreements and develop need not be recorded in detail, provided and carry out plans of action which are that reference is made to the record required to implement the allocation and the portion thereof in which the and information provisions of the substance is fully set out. International Energy Program. (c) Except where the Department of § 209.32 Initiation of meetings. Energy otherwise provides, all records and transcripts prepared pursuant to (a) Except for meetings of bodies cre- paragraphs (a) and (b) of this section, ated by the International Energy Agen- shall be deposited within fifteen (15) cy, any meeting among participants in days after the close of the month of a voluntary agreement pursuant to their preparation together with any this subpart, for the purpose of carrying out such voluntary agreement or agreement resulting therefrom, with developing or carrying out a plan of ac- the Department of Energy, and shall be tion pursuant thereto, shall be initi- available to the Department of Justice, ated and chaired by a full-time Federal the Federal Trade Commission, and the employee designated by the Adminis- Department of State. Such records and trator. transcripts shall be available for public (b) Except as provided in paragraph inspection and copying to the extent (c) of this section, the Administrator set forth in subpart D. Any person de- shall provide notice of meetings held positing material pursuant to this sec- pursuant to this subpart, in writing, to tion shall indicate with particularity the Attorney General, the Federal what portions, if any, the person be- Trade Commission, and to the Speaker lieves are subject to disclosure to the of the House and the President of the public pursuant to subpart D and the Senate for delivery to the appropriate reasons for such belief. committees of Congress. Except during (d) Any meeting between a potential an international energy supply emer- participant and an official of DOE for gency, notice shall also be provided to the purpose of developing a voluntary the public through publication in the agreement shall, if not otherwise re- FEDERAL REGISTER. Such notice shall quired to be recorded pursuant to this identify the time, place, and agenda of

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the meeting. Notice in the FEDERAL § 209.34 Maintenance of records. REGISTER shall be published at least (a) The Administrator or his delegate seven days prior to the date of the shall keep a verbatim transcript of any meeting unless emergency cir- meeting held pursuant to this subpart cumstances, IEP requirements or other except where (1) due to considerations unanticipated circumstances require of time or other overriding cir- the period to be shortened. cumstances, the keeping of a verbatim (c) During an international energy transcript is not practicable, or (2) supply emergency, advance notice shall principal participants in the meeting be given to the Attorney General, the are representatives of foreign govern- Federal Trade Commission and to the ments. If any such record other than a Speaker of the House and the President verbatim transcript, is kept by a des- of the Senate for delivery to the appro- ignee who is not a full-time Federal priate committees of Congress. Such employee, that record shall be sub- notice may be telephonic or by such mitted to the full-time Federal em- other means as practicable, and shall ployee in attendance at the meeting be confirmed in writing. who shall review the record, promptly make any changes he deems necessary § 209.33 Conduct of meetings. to make the record full and complete, (a) Subject to the provisions of para- and shall notify the designee of such graph (c) of this section, meetings held changes. to carry out a voluntary agreement, or (b)(1) Except as provided in para- to develop or carry out a plan of action graphs (b) (2) through (4) of this sec- pursuant to this subpart, shall be open tion, participants shall keep a full and to all interested persons, subject to complete record of any communication limitations of space. Interested persons (other than in a meeting held pursuant desiring to attend meetings under this to this subpart) between or among subpart may be required to advise the themselves or with any other member Administrator in advance. of a petroleum industry group created (b) Interested persons permitted to by the International Energy Agency, or attend meetings under this section subgroup thereof for the purpose of car- may present data, views, and argu- rying out a voluntary agreement or de- ments orally and in writing, subject to veloping or carrying out a plan of ac- such limitations with respect to the tion under this subpart, except that manner of presentation as the Admin- where there are several communica- istrator may impose. tions within the same day involving (c) Meetings held pursuant to this the same participants, they may keep a subpart shall not be open to the public cumulative record for the day. The par- to the extent that the President or his ties to a communication may agree delegate finds that disclosure of the among themselves who shall keep such proceedings beyond those authorized to record. Such record shall include the attend would be detrimental to the for- names of the parties to the commu- eign policy interests of the United nication and the organizations, if any, States, and determines, in consultation which they represent; the date of com- with the Administrator, the Secretary munication; the means of communica- of State, and the Attorney General, tion, and a description of the commu- that a meeting shall not be open to in- nication in sufficient detail to convey terested persons or that attendance by adequately its substance. interested persons shall be limited. (2) Where any communication is writ- (d) The requirements of this section ten (including, but not limited to, do not apply to meetings of bodies cre- telex, telegraphic, telecopied, micro- ated by the International Energy Agen- filmed and computer printout mate- cy except that no participant in a vol- rial), and where such communication untary agreement may attend any demonstrates on its face that the origi- meeting of any such body held to carry nator or some other source furnished a out a voluntary agreement or to de- copy of the communication to the Of- velop or to carry out a plan of action fice of International Affairs, Depart- unless a full-time Federal employee is ment of Energy with the notation present. ‘‘Voluntary Agreement’’ on the first

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page of the document, no participants the Department of Energy and shall be need record such a communication or available to the Department of Justice, send a further copy to the Department the Federal Trade Commission, and the of Energy. The Department of Energy Department of State. Such records and may, upon written notice to partici- transcripts shall be available for public pants, from time to time, or with ref- inspection and copying to the extent erence to particular types of docu- set forth in subpart D. Any person de- ments, require deposit with other of- positing materials pursuant to this sec- fices or officials of the Department of tion shall indicate with particularity Energy. Where such communication what portions, if any, the person be- demonstrates that it was sent to the lieves are not subject to disclosure to Office of International Affairs, Depart- the public pursuant to subpart D and ment of Energy with the notation the reasons for such belief. ‘‘Voluntary Agreement’’ on the first (d) Any meeting between a partici- page of the document, or such other of- pant and an official of DOE for the pur- fices or officials as the Department of pose of carrying out a voluntary agree- Energy has designated pursuant to this ment or developing or carrying out a section, it shall satisfy paragraph (c) of plan of action shall, if not otherwise this section, for the purpose of deposit required to be recorded pursuant to with the Department of Energy. this section, be recorded by such offi- (3) To the extent that any commu- cial as provided in § 204.5. nication is procedural, administrative or ministerial (for example, if it in- (e) During international oil alloca- volves the location of a record, the tion under chapters III and IV of the place of a meeting, travel arrange- IEP or during an IEA allocation sys- ments, or similar matters) only a brief tems test, the Department of Energy notation of the date, time, persons in- may issue such additional guidelines volved and description of the commu- amplifying the requirements of these nication need be recorded; except that regulations as the Department of En- during an IEA emergency allocation ergy determines to be necessary and exercise or an allocation systems test appropriate. such a non-substantive communication (Approved by the Office of Management and between members of the Industry Sup- Budget under Control No. 1905–0067) ply Advisory Group (ISAG) which occur within IEA headquarters need not be (Federal Energy Administration Act of 1974, recorded. Pub. L. 93–275, as amended; E.O. 11790, 39 FR 23185; E.O. 11930, 41 FR 32397; Energy Policy (4) To the extent that any commu- and Conservation Act, Pub. L. 94–163; E.O. nication involves matters which reca- 11912, 41 FR 15825; Department of Energy Or- pitulate matters already contained in a ganization Act, Pub. L. 95–91, 91 Stat. 565, full and complete record, the substance E.O. 12009, 42 FR 46267) of such matters shall be identified, but [41 FR 6754, Feb. 13, 1976, as amended at 43 need not be recorded in detail, provided FR 12854, Mar. 28, 1978; 46 FR 63209, Dec. 31, that reference is made to the record 1981] and the portion thereof in which the substance is fully set out. (c) Except where the Department of Subpart D—Availability of Infor- Energy otherwise provides, all records mation Relating to Meetings and transcripts prepared pursuant to and Communications paragraphs (a) and (b) of this section, shall be deposited within seven (7) days § 209.41 Availability of information re- after the close of the week (ending Sat- lating to meetings and communica- urday) of their preparation during an tions. international energy supply emergency (a) Except as provided in paragraph or a test of the IEA emergency alloca- (b) of this section, records or tran- tion system, and within fifteen (15) scripts prepared pursuant to this sub- days after the close of the month of part shall be available for public in- their preparation during periods of spection and copying in accordance non-emergency, together with any with section 552 of title 5, United agreement resulting therefrom, with States Code and part 202 of this title.

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(b) Matter may be withheld from dis- 212.94(b)(2)(iii); 212.128; 212.132; 212.172; closure under section 552(b) of title 5 and § 212.187 of part 212. only on the grounds specified in: (b) Effective February 5, 1985, para- (1) Section 552(b)(1), applicable to graph (a) of this section shall apply, to matter specifically required by Execu- the extent indicated, only to firms in tive Order to be kept secret in the in- the following categories. A firm may be terest of the national defense or for- included in more than one category, eign policy. This section shall be inter- and a firm may move from one cat- preted to include matter protected egory to another. The fact that a firm under Executive Order No. 11652 of becomes no longer subject to the rec- March 8, 1972, establishing categories ordkeeping requirements of one cat- and criteria for classification, as well egory shall not relieve that firm of as any other such orders dealing spe- compliance with the recordkeeping re- cifically with disclosure of IEP related quirements of any other category in materials; which the firm is still included. (2) Section 552(b)(3), applicable to (1) Those firms which are or become matter specifically exempted from dis- parties in litigation with DOE, as de- closure by statute; and fined in paragraph (c)(1) of this section. (3) So much of section 552(b)(4) as re- Any such firm shall remain subject to lates to trade secrets. paragraph (a) of this section. DOE shall notify the firm in writing of the final resolution of the litigation and wheth- PART 210—GENERAL ALLOCATION er or not any of its records must be AND PRICE RULES maintained for a further period. DOE shall notify a firm which must main- Subpart A—Recordkeeping tain any records for a further period Sec. when such records are no longer need- 210.1 Records. ed. (2)(i) Those firms which as of Novem- Subparts B–D [Reserved] ber 30 1984, have completed making all restitutionary payments required by AUTHORITY: Emergency Petroleum Alloca- an administrative or judicial order, tion Act of 1973, Pub. L. 93–159, E.O. 11748, 38 consent order, or other settlement or FR 33577; Economic Stabilization Act of 1970, order but which payments are on Feb- as amended, Pub. L. 92–210, 85 Stat. 743; Pub. ruary 5, 1985, still subject to distribu- L. 93–28, 87 Stat. 27; E.O. 11748, 38 FR 33575; tion by DOE. This requirement is appli- Cost of Living Council Order Number 47, 39 cable to only those firms listed in ap- FR 24. pendix B. Any such firm shall maintain all records for the time period covered Subpart A—Recordkeeping by the administrative or judicial order, consent order, or other settlement or § 210.1 Records. order requiring the payments, evidenc- (a) The recordkeeping requirements ing sales volume data for each product that were in effect on January 27, 1981, subject to controls and customers’ in parts 210, 211, and 212 will remain in names and addresses, until one of the effect for (1) all transactions prior to following: June 30, 1985, unless this pe- February 1, 1981; and (2) all allowed ex- riod is extended on a firm-by-firm penses incurred and paid prior to April basis; the end of the individual firm’s 1, 1981 under § 212.78 of part 212. These extension; or the firm is notified in requirements include, but are not lim- writing that its records are no longer ited to, the requirements that were in needed. effect on January 27, 1981, in § 210.92 of (ii) Those firms which as of Novem- this part; in §§ 211.67(a)(5)(ii); 211.89; ber 30, 1984, are required to make 211.109, 211.127; and 211.223 of part 211; restitutionary or other payments pur- and in §§ 212.78(h)(5)(ii); 212.78(h)(6); suant to an administrative or judicial 212.83(c)(2)(iii)(E)(I); order, consent order, or other settle- 212.83(c)(2)(iii)(E)(II); 212.83(c)(2)(iii); ment or order. Any such firm shall re- ‘‘Fi t’’; 212.83(i); 212.93(a); main subject to paragraph (a) of this 212.93(b)(4)(iii)(B)(I); 212.93(i)(4); section until the firm completes all

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restitutionary payments required by (4) Those firms which are subject to the administrative or judicial order, requests for data necessary to verify consent order, or other settlement or that crude oil qualifies as ‘‘newly dis- order. However, after completing all covered’’ crude oil under 10 CFR 212.79. such payments, a firm shall maintain Any such firm shall maintain the all records described in paragraph records evidencing such data until one (b)(2)(i) of this section until one of the of the following: June 30, 1985, unless following: Six months after the firm this period is extended on a firm-by- completes all such payments, unless firm basis; the end of an individual this period is extended on a firm-by- firm’s extension; or the firm is notified firm basis; the end of the individual in writing by DOE that its records are firm’s extension; or the firm is notified no longer needed. However, if a firm in in writing that its records are no this group shall become a party in liti- longer needed. gation, the firm shall then be subject (3)(i) Those firms with completed au- to the recordkeeping requirements for dits in which DOE has not yet made a firms in litigation set forth in para- determination to initiate a formal en- graph (b)(1) of this section. forcement action and firms under audit (5) Those firms whose records are determined by DOE as necessary to com- which do not have outstanding sub- plete the enforcement activity relating poenas. Any such firm shall maintain to another firm which is also subject to all records for the period covered by paragraph (a) of this section unless the audit including all records nec- such firms required to keep records essary to establish historical prices or have received certified notice letters volumes which serve as the basis for specifically describing the records de- determining the lawful prices or vol- termined as necessary. At that time, umes for any subsequent regulated the specific notice will control the rec- transaction which is subject to audit, ordkeeping requirements. These firms until one of the following: June 30, have been identified in appendix A. 1985, unless this period is extended on a Any such firm shall maintain these firm-by-firm basis; the end of the indi- records until one of the following: June vidual firm’s extension; or the firm is 30, 1985, unless this period is extended notified in writing by DOE that its on a firm-by-firm basis; the end of the records are no longer needed. However, individual firm’s extension; or the firm if a firm in this group shall become a is notified in writing by DOE that its party in litigation, the firm shall then records are no longer needed. be subject to the recordkeeping re- (6) Those firms which participated in quirements for firms in litigation set the Entitlements program. Any such forth in paragraph (b)(1) of this section. firm shall maintain its Entitlements- (ii) Those firms under audit which related records until six months after have outstanding subpoenas on Feb- the final judicial resolution (including ruary 5, 1985, or which receive sub- any and all appeals) of Texaco v. DOE, poenas at any time thereafter or which Nos. 84–391, 84–410, and 84–456 (D. Del.), have supplied records for an audit as or the firm is notified by DOE that its the result of a subpoena enforced after records are no longer needed, which- November 1, 1983. Any such firm shall ever occurs first. remain subject to paragraph (a) of this (c) For purposes of this section: section until two years after ERA has (1) A firm is ‘‘a party in litigation’’ notified the firm in writing that is in if: full compliance with the subpoena or (i)(A) The firm has received a Notice until ERA has received from the firm a of Probable Violation, a Notice of sworn certification of compliance with Probable Disallowance, a Proposed Re- the subpoena as required by 10 CFR medial Order, or a Proposed Order of 205.8. However, if a firm in this group Disallowance; or shall become a party in litigation, the (B) The firm and DOE are parties in firm shall then be subject to the rec- a lawsuit arising under the Emergency ordkeeping requirements for firms in Petroleum Allocation Act of 1973, as litigation set forth in paragraph (b)(1) amended (15 U.S.C. 751 et seq.) or 10 of this section. CFR parts 205, 210, 211, or 212; and

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(ii)(A) There has been no final (that Brio Petroleum, Inc. is, non-appealable) administrative or Brixon judicial resolution, or C.E. Norman (B) DOE has not informed the firm in CPI Oil & Refining CRA-Farmland Industries, Inc. writing that the Department has com- Calcaseiu Refining, Ltd. pleted its review of the matter. Carbonit Houston, Inc. (2) A firm means any association, Carr Oil Company, Inc. company, corporation, estate, indi- Castle Coal & Oil Co. vidual, joint-venture, partnership, or Central Crude Corporation sole proprietorship, or any other enti- Century Trading Co. ty, however organized, including chari- Charter Crude Oil Chastain Vineyard table, educational, or other eleemosy- Chevron USA, Inc. nary institutions, and state and local Cibro Petroleum, Inc. governments. A firm includes a parent Cirillo Brothers and the consolidated and unconsoli- Cities Service (Citgo) Station dated entities (if any) which it directly Cities Service Company or indirectly controls. Cities Service Midland City of Athens APPENDIX A TO 10 CFR 210.1—THIRD PARTY Clarke County Board of Education FIRMS Claude E. Silvey Coastal Corporation (The) Name of Firm Coastal Petroleum and Supply Inc. A & R, Inc. Coastal States Trading Company A. J. Petroleum Commonwealth Oil Refining Co., Inc. ADA Resources, Inc. Coral Petroleum Canada, Inc. ATC Petroleum Coral Petroleum, Inc. Abbco Petroleum, Inc. Corex of Georgia Ada Oil Company Cothran Interstate Exxon Adams Grocery Couch’s Standard Chevron Advanced Petroleum Distributing Co. Cougar Oil Marketers Inc. Agway Inc. Crude Company (The) Allegheny Petroleum Corp. Crystal Energy Corporation Alliance Oil and Refining Company Crystal Refining Allied Chemical Corp. D & E Logging Allied Transport DDC Corporation of America Amerada Hess Corp. Darrell Williamson American Natural Crude Oil Assoc. Davis Ellis Amoco Production Company Days Inn of America, Inc. Amorient Petroleum, Inc. Delta Petroleum & Energy Corp. An-Son Transportation Co. Derby & Company, Inc. Anadarko Products Co. Derby Refining Company Andrus Energy Corp. Dewveall Petroleum Antler Petroleum Dixie Oil Company Arco Pipeline Company Dixon Oil Co. Armada Petroleum Corp. Don Hardy Armour Oil Company Donald Childs Arnold Brooks Const. Inc. Dow Chemical Company Ashland Oil Dr. Joe L. Griffeth Asiatic Petroleum Co. Driver Construction Co. Aspen Energy, Inc. Drummond Brothers, Inc. Athens General Hospital Duffie Monroe & Sons Co., Inc. Atlantic Pacific Energy, Inc. ECI (A/K/A Energy Cooperative Inc.) Atlas Processing Company Earnest Dalton B & B Trading Company Earth Resources Trading BLT, Inc. Eastern Seaboard Petroleum, Inc. BPM, Ltd. Elmer Hammon Baker Services, Inc. Elvin Knight Basin Inc. Empire Marketing, Inc. Basin Petroleum, Inc. Encorp. Beacon Hill Mobil Energy Cooperative, Inc. Belcher Oil Company Energy Distribution Co. Bighart Pipeline Company Englehard Corporation Bigheart Pipeline Corp Englehard Oil Corporation Bowdoin Square Exxon Entex Bowdoin Super Service (Sunoco) Evans Oil Co.

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Exxon Company J. A. Rackerby Corporation F & S Trading Company, Inc. J. H. Baccus Farmers Union Central Exchange, Inc. J. H. Baccus & Co. Farmland Industries Inc. J. J. Williamson Fasgo, Inc. J. M. Petroleum Corporation Fedco Oil Company JPK Industries Federal Employees Distributing Co. Jack W. Grigsby Fitzpatrick Spreader Jaguar Petroleum, Inc. Flutz Oil Company James L. Bush Flying J. Inc. Jay Petroleum Company Foremost Petroleum Jay-Ed Petroleum Company Four Corners Pipe Line John W. McGowan Frank Katz Kalama Chemical, Inc. Frank W. Abrahamsen Kelly Trading Corp. Frank’s Butane, Inc. Kenco Refining Friendswood Refinery Kerr-McGee Corporation Frontier Manor Collection Koch Fuel Fuel Oil Supply & Terminaling, Inc. Koch Industries, Inc. G. C. Clark Company Kocolene Oil GPC Marketing Company Kocolene Station Gary Refining Co. L & L Resources, Inc. Geer Tank Trucks, Inc. L.S. Parker Gene Clary LaGloria Oil & Gas Gene McDonald LaJet, Inc. General Crude Oil Company Lamar Refining Co. Geodynamics Oil & Gas Inc. Langham Petroleum Corp. George Kennedy Larry Roberts George Smith Chevron Laurel Oil, Inc. Gleason Oil Company Lee Allen Glenn Company Lincoln Land Sales Company Globe Oil Co. Listo Petroleum Inc. Godfrey’s Standard Service Longview Refining Corp. Good Hope Industries, Inc. Love’s Standard Good Hope Refineries, Inc. Lucky Stores Inc. Granite Oil Company M.L. Morrow Guam Oil & Refining Co., Inc. Magna Energy Corporation Gulf States Oil & Refining Company Magnolia Oil Company H. D. Adkinson Mansfield Oil Co. H. H. Dunson Mapco Petroleum, Inc. H.S. & L, Inc. Mapco, Inc. HNG Oil Company Marion Trading Co. Harbor Petroleum, Inc. Marlex Oil & Refining, Inc. Harbor Trading Marlin Petroleum, Inc. Harmony Grove Mills, Inc. Martin Oil Company Harry Rosser Mathew’s Grocery Hast Oil, Inc. McAuleep Oil Co. Heet Gas Company McAuley Oil Company Henry Alva Mercer Meadows Gathering, Inc. Herndon Oil & Gas Company Mellon Energy Products Co. Horizon Petroleum Company Merit Petroleum, Inc. Houston Oil & Minerals Products Co. Metro Wash, Inc. Houston Oil & Refining Miller Oil Purchasing Co. Howell Corporation Minor Oil, Inc. Hurricane Trading Company, Inc. Minro Oil, Inc. Hydrocarbon Trading and Transport Co. Mitchell Oil Co. Inco Trading Mitsui & Co. (USA) Inc. Independent Refining Corp. Mobil Bay Refining Company Independent Trading Corporation Montgomery Well Drilling Indiana Refining, Inc. Mundy Food Market Intercontinental Petroleum Corp. Munford, Inc. International Crude Corporation Mutual Petroleum International Petro NRG Oil Company International Petroleum Trading, Inc. National Convenience Stores International Processors National Cooperative Refinery Isthmus Trading Corporation Nicholson Grocery and Gas J & M Transport North American Petroleum J. & J.’s Fast Stop Northeast Petroleum Corp.

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Northeast Petroleum Corporation Scurlock Oil Company Northgate Auto Center Scurry Oil Company Northwest Crude, Inc. Seamount Petroleum Company Nova Refining Corp. Seaview Petroleum Company Occidental Petroleum Corp. (includes Sector Refining, Inc. Permia) Selfton Miller Ocean Drilling and Exploration Co. Shepherd Trading Corporation Oil Exchange, Inc. Shulze Processing Oilco Sigmor Corporation Omega Petroleum Corp. Skelly Oil Company Otoe Corporation South Hampton Refining Company Oxxo Energy Group, Inc. South Texas LP Gas Co. P & O Falco, Inc. Southern Crude Oil Resources P. L. Heatley Co. Southern Terminal & Transport, Ltd. PEH, Inc. Southern Union Company PIB, Inc. Southwest Petro. Energy PSW Distributors Company Southwest Petrochem Pacific Refinery, Inc. Standard Oil Co. (Ohio) Pacific Resources, Inc. Standard Oil Co. of California Pan American Products Corp. Standard Oil Company (Indiana) Par Brothers Food Store Standard Oil Company (Ohio) Pauley Petroleum Inc. Sterling Energy Company Pennzoil Co. Steve Childs Permian Corporation (The) Stix Gas Company, Inc. Pescar International Corp. Sunset Grocery Pescar International Trading Co. Sunset Oil & Refining, Inc. Petraco (U.S.A.) Inc. Swanee Petroleum Company Petrade International T & P Enterprises Petrol Products, Inc. T. B. Eley Phillips Petroleum Company T. E. Jawell Phoenis Petroleum Co. Tauber Oil Company Phoenix Petroleum Co. Tenneco, Inc. Pine Mountains Tesoro Crude Oil Company Poole Petroleum Texana Oil & Gas Corp. Port Petroleum Texas American Petrochemicals (TAP) Presley Oil Co. Texas City Refining Procoil Inc. Texas Eastern Transmission Corp. Publiker Industries, Inc. Texas Energy Reserve Corporation Pyramid Dist. Co., Inc. Texas Pacific Oil Company Questor Crude Oil Company Thomas Cockvell Quitman Refining Co. Thomas Petroleum Products, Inc. R. H. Garrett Paving Thorton Oil Company Ra-Gan Fuel, Inc. Thyssen Incorporated Reeder Distributing Co. Tiger Petroleum Company Reeder Distributors Time Oil Co. Reese Exploration Co. Tipperary Refining Company Research Fuels Inc. Tom Banks Revere Petroleum Co. Tom Smith Richardson-Ayres, Inc. Tomlinson Petroleum, Inc. Robert Bishop Tosco Corporation Robert Patrick Total Petroleum, Inc. Roberts Grocery Trans-Texas Petroleum Corp. Rock Island Refining Corporation Transco Trading Company Rogers Oil Company Turboil Oil and Refining Roy Baerne Two Rivers Oil & Gas Co., Inc. Russell Oil Company U-Fill ’er Up S. G. Coplen USA Gas, Inc. SECO (Scruggs Energy) Uni Oil Company Saber Crude Oil, Inc. Union Oil of California Saber Refining Company Doram Energy Salem Ventures, Inc. United Petroleum Marketing Samson Resources Company United Refining Company Santa Fe Energy Products Co. United Refining, Inc. Saye’s Truck Stop Universal Rundle Scandix Oil Limited Val-Cap, Inc. Score, Inc. Vedetta Oil Trading, Inc. Scruggs Energy Company Vedette Oil Trading, Inc.

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Vickers Energy Corp. Name of firm Location W. C. Colquitt W. T. Strickland Chapman, H.A ...... Tulsa, OK. W. W. Blanton Cibro Gasoline Corporation ...... Bronx, NY. W.A. Nunnally, Jr., Construction Co. City Service Inc ...... Kalispell, MT. Coastal Corporation ...... Houston, TX. W.D. Porterfiled Coline Gasoline Corporation ...... Santa Fe Springs, CA. Wellven, Inc. Collins Oil Co ...... Aurora, IL. West Texas Marketing Corp. Columbia Oil Co ...... Hamilton, OH. Western Crude Oil, Inc. Conlo Service Inc ...... East Farmingdale, NY. Western Fuels, Inc. Conoco, Inc ...... Houston, TX. Wight Nurseries of Oglethorpe Co. Consolidated Gas Supply Corp .... Hastings, WV. William Seabolt Consolidated Leasing Corp ...... Los Angeles, CA. Consumers Oil Co ...... Rosemead, CA. Wilson’s Used Tractors Continental Resources Company Winter Park, FL. Windsor Gas Corp. Cordele Operating Co ...... Corsicana, TX. Wyoming Refining Cosby Oil Co., Inc ...... Whittier, CA. Cougar Oil Co ...... Selma, AL. APPENDIX B TO 10 CFR 210.1—FIRMS WITH Cross Oil Co., Inc ...... Wellstone, MO. COMPLETED PAYMENTS SUBJECT TO DIS- Crystal Oil Company (formerly Shreveport, LA. TRIBUTION Vallery Corp.). Crystal Petroleum Co ...... Corpus Christi, TX. The following firms have completed mak- Devon Corporation ...... Oklahoma City, OK. ing restitutionary payments to DOE but Dorchester Gas Corp ...... Dallas, TX. their payments are still subject to distribu- E.B. Lynn Oil Company ...... Allentown, PA. tion by DOE. Each such firm must maintain E.M. Bailey Distributing Co ...... Paducah, KY. Eagle Petroleum Co ...... Wichita Falls, TX. relevant records until June 30, 1985, unless Earls Broadmoor ...... Houma, LA. this period is extended on a firm-by-firm Earth Resources Co ...... Dallas, TX. basis. Relevant records are all records of the Eastern Petroleum Corp ...... Annapolis, MD. firm, including any affiliates, subsidiaries or Edington Oil Co ...... Los Angeles, CA. predecessors in interest, for the time period Elias Oil Company ...... West Palm Beach, FL. covered by the judicial or administrative Elm City Filling Stations, Inc ...... New Haven, CT. order, consent order, or other settlement or Empire Oil Co ...... Bloomington, CA. Endicott, Eugene ...... Redmond, OR. order requiring the payments, evidencing Enserch Corp ...... Dallas, TX. sales volume data for each product subject to Enterprise Oil & Gas Company .... Detroit, MI. controls and customers’ names and address- F.O. Fletcher, Inc ...... Tacoma, WA. es. Fagadau Energy Corporation ...... Dallas, TX. Farstad Oil Company ...... Minot, ND. Name of firm Location Field Oil Co., Inc ...... Ogden, UT. Fine Petroleum Co., Inc ...... Norfolk, VA. A. Tarricone Inc ...... Yonkers, NY. Foster Oil Co ...... Richmond, MI. Adolph Coors Company ...... Golden, CO. Franks Petroleum Inc ...... Shreveport, LA. Allied Materials Corp & Excel ...... Oklahoma City, OK. Froesel Oil Co. Aminoil USA, Inc ...... Houston, TX. Gas Systems Inc ...... Ft. Worth, TX. Amtel, Inc ...... Providence, RI. Gate Petroleum Co., Inc ...... Jacksonville, FL. Apache Corporation ...... Minneapolis, MN. GCO Minerals Company ...... Houston, TX. APCO Oil Corporation ...... Oklahoma City, OK. Getty Oil Company ...... Los Angeles, CA. Arapaho Petroleum, Inc ...... Breckenridge, TX. Gibbs Industries, Inc ...... Revere, MA. Arkansas Louisiana Gas Com- Shreveport, LA. Glaser Gas Inc ...... Calhoun, CO. pany. Glover, Lawrence H ...... Patchogue, NY. Arkla Chemical Corporation ...... Shreveport, LA. Goodman Oil Company ...... Boise, ID. Armour Oil Company ...... San Diego, CA. Grant Rent a Car Corporation ...... Los Angeles, CA. Associated Programs Inc ...... Boca Raton, FL. Grimes Gasoline Co ...... Tulsa, OK. Atlanta Petroleum Production ...... Fort Worth, TX. Gulf Energy & Development Corp. San Antonio, TX. Automatic Heat, Inc. (also known as Gulf Energy De- Ayers Oil Company ...... Canton, MD. velopment Corp.). Aztex Energy Corporation ...... Knoxville, TN. Gulf Oil Corp ...... Houston, TX. Bak Ltd ...... Narbeth, PA. Gull Industries, Inc ...... Seattle, WA. Bayou State Oil/IDA Gasoline ...... Shreveport, LA. H.C. Lewis Oil Co ...... Welch, WV. Bayside Fuel Oil Depot Corp ...... Brooklyn, NY. Hamilton Brothers Petroleum Co .. Denver, CO. Belridge Oil Company ...... Los Angeles, CA. Harris Enterprise Inc ...... Portland, OR. Blaylock Oil Co., Inc ...... Homestead, FL. Heller, Glenn Martin ...... Boston, MA. Blex Oil Company ...... Minneapolis, MN. Hendel’s Inc ...... Waterford, CT. Boswell Oil Company ...... Cincinnati, OH. Henry H. Gungoll Associates ...... Enid, OK. Box, Cloyce K ...... Dallas, TX. Hertz Corporation, The ...... New York, NY. Breckenridge Gasoline Company Kansas City, KS. Hines Oil Co ...... Murphysboro, IL. Brownlie, Wallace, Armstrong ...... Denver, CO. Horner & Smith, A Partnership ..... Houston, TX. Bucks Butane & Propane Service San Jose, CA. Houston Natural Gas Corp ...... Houston, TX. Budget Airport Associates ...... Los Angeles, CA. Howell Corporation/Quintana Re- Houston, TX. Busler Enterprises Inc ...... Evansville, IN. finery Co. Butler Petroleum Corp ...... Butler, PA. Hunt Industries ...... Dallas, TX. C.K. Smith & Company, Inc ...... Worcester, MA. Hunt Petroleum Corp ...... Dallas, TX. Cap Oil Company ...... Tulsa, OK. Husky Oil Company of Delaware Cody, WY. Champlain Oil Co., Inc ...... South Burlington, VT. Ideal Gas Co., Inc ...... Nyassa, OR.

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Name of firm Location Name of firm Location

Independent Oil & Tire Company Elyria, OH. Pacific Northern Oil ...... Seattle, WA. Inland USA, Inc ...... St. Louis, MO. Panhandle Eastern (Century) ...... Houston, TX. Inman Oil Co ...... Salem, MO. Parade Company ...... Shreveport, LA. Internorth, Inc ...... Omaha, NE. Parham Oil Corporation ...... Nashville, TN. J.E. DeWitt, Inc ...... South El Monte, CA. Pasco Petroleum Co., Inc ...... Phoenix, AZ. J.M. Huber Corp ...... Houston, TX. Pedersen Oil, Inc ...... Silverdale, WA. James Petroleum Corp ...... Bakersfield, CA. Pennzoil Company ...... Houston, TX. Jay Oil Company ...... Fort Smith, AR. Perry Gas Processors, Inc ...... Odessa, TX. Jimmys Gas Stations Inc ...... Auburn, ME. Peoples Energy Corp ...... Chicago, IL. Jones Drilling Corporation ...... Duncan, OK. Perta Oil Marketing Corp ...... Beverly Hills, CA. Juniper Petroleum Corporation ..... Denver, CO. Peterson Petroleum Inc ...... Hudson, NY. Kansas-Nebraska Natural Gas Co Hastings, NE. Petro-Lewis Corp ...... Denver, CO. Keller Oil Company, Inc ...... Effingham, IL. Petrolane-Lomita Gasoline Co ..... Long Beach, CA. Kenny Larson Oil Co., Inc. Petroleum Heat & Power Co. Inc Stamford, CT. Kent Oil & Trading Company ...... Houston, TX. Petroleum Sales/Services Inc ...... Buffalo, NY. Key Oil Co., Inc ...... Tuscaloosa, AL. Pioneer Corp ...... Amarillo, TX. Key Oil Company ...... Bowling Green, KY. Planet Engineers Inc ...... Denver, CO. Kiesel Co ...... St. Louis, MO. Plateau, Inc ...... Albuquerque, NM. King & King Enterprise ...... Kansas City, MO. Plaquemines Oil Sales ...... Belle Chasse, LA. Kingston Oil Supply Corp ...... Port Ewen, NY. Point Landing Inc ...... Hanrahan, LA. Kirby Oil Company. Port Oil Company, Inc ...... Mobile, AL. L & L Oil Co., Inc ...... Belle Chasse, LA. Post Petroleum Co ...... West Sacramento, CA. L.P. Rech Distributing Co ...... Roundup, MT. Power Pak Co., Inc ...... Houston, TX. La Gloria Oil and Gas Co ...... Houston, TX. Pride Refining, Inc ...... Abilene, TX. Lakes Gas Co., Inc ...... Forest Lake, MN. Pronto Gas Co ...... Abilene, TX. Lakeside Refining Co./Crystal ...... Southfield, MI. Propane Gas & Appliance Co ...... New Brockton, AL. Landsea Oil Company ...... Irvine, CA. Prosper Energy Corporation ...... Dallas, TX. Leathers Oil Co., Inc ...... Portland, OR. Pyro Energy Corporation ...... Evansville, IN. Leese Oil Company ...... Pocatello, ID. Pyrofax Gas Corporation ...... Houston, TX. Leonard E. Belcher, Inc ...... Springfield, MA. Quaker State Oil ...... Oil City, PA. Lincoln Land Oil Co ...... Springfield, IL. Quarles Petroleum, Inc ...... Fredericksburg, VA. Liquid Products Recovery ...... Houston, TX. Resources Extraction Process ..... Houston, TX. Little America Refining Co ...... Salt Lake City, UT. Reynolds Oil Co ...... Kremling, CO. Lockheed Air Terminal Inc ...... Burbank, CA. Richardson Ayers Jobbers, Inc .... Alexandria, LA. Lowe Oil Company ...... Clinton, MO. Riverside Oil, Inc ...... Evansville, IN. Lucia Lodge Arco ...... Big Sur, CA. Roberts Oil Co. Inc ...... Albuquerque, NM. Luke Brothers Inc ...... Calera, OK. Rookwood Oil Terminals Inc ...... Cincinnati, OH. Lunday Thargard Oil ...... South Gate, CA. Saber Energy, Inc ...... Houston, TX. Malco Industries Inc ...... Cleveland, OH. Sanesco Oil Co ...... Escondido, CA. Mapco, Inc ...... Tulsa, OK. Schroeder Oil Company ...... Carroll, IA. Marine Petroleum Co ...... St. Louis, MO. Seminole Refining Inc ...... St. Marks, FL. Marlen L. Knutson Dist. Inc ...... Stanwood, WA. Sid Richardson Carbon & Gas ..... Ft. Worth, TX. Martin Oil Service, Inc ...... Blue Island, IL. Sigmore Corporation ...... San Antonio, TX. Martinoil Company ...... Fresno, CA. Southwestern Refining Co., Inc .... Salt Lake City, UT. Marvel Fuel Oil and Gas Co. Speedway Petroleum Co., Inc ...... Fitchburg, MA. McCarty Oil Co ...... Wapakoneta, OH. St. James Resources Corp ...... Boston, MA. McCleary Oil Co., Inc ...... Chambersburg, OH. Standard Oil Co. (Indiana) ...... Chicago, IL. McClure’s Service Station ...... Salisbury, PA. Stinnes Inter Oil Inc ...... New York, NY. McTan Corporation ...... Abilene, TX. Tenneco Oil Company ...... Houston, TX. Mesa Petroleum Company ...... Amarillo, TX. Texas/Arkansas/Colorado/Okla- Dallas, TX. Midway Oil Co ...... Rock Island, IL. homa/Oil Purchasing. Midwest Industrial Fuels, Inc ...... La Crosse, WI. Texas Gas & Exploration ...... Dallas, TX. Mississippi River Transmission .... St. Louis, MO. Texas Oil & Gas Corporation ...... Dallas, TX. Mitchell Energy Corp ...... Woodlands, TX. Texas Pacific Oil Company, Inc ... Dallas, TX. Montana Power Co ...... Butte, MT. The True Companies ...... Casper, WY. Moore Terminal and Barge Co ..... Monroe, LA. Thompson Oil Inc ...... Purcellville, VA. Mountain Fuel Supply Company .. Salt Lake City, UT. Tiger Oil Co ...... Yakima, WA. Moyle Petroleum Co ...... Rapid City, SD. Time Oil Company ...... Seattle, WA. Mustang Fuel Corporation ...... Oklahoma City, OK. Tipperary Corp ...... Midland, TX. Naphsol Refining Company ...... Muskegon, MI. Tippins Oil & Gas Co ...... Richmond, MO. National Helium Corporation ...... Liberal, KS. Triton Oil & Gas Corp ...... Dallas, TX. National Propane Corp ...... Wyandanch, NY. U.S. Compressed Gas Company King of Prussia, PA. Navajo Refining Company ...... Dallas, TX. U.S. Oil Company ...... Combined Locks, WI. Nielson Oil & Propane, Inc ...... West Point, NE. U.S.A. Petroleum, Inc ...... Santa Monica, CA. Northeast Petroleum Industries .... Chelsea, MA. Union Texas Petroleum Corp ...... Houston, TX. Northeastern Oil Co., Inc ...... Gillette, WY. United Oil Company ...... Hillside, NJ. Northwest Pipeline Corp ...... Salt Lake City, UT. Upham Oil & Gas Co ...... Mineral Wells, TX. O’Connell Oil Co ...... Pittsfield, MA. Vangas Inc ...... Fresno, CA. Oceana Terminal Corp. et al ...... Bronx, NY. VGS Corporation ...... Jackson, MS. OKC Corporation ...... Dallas, TX. Waller Petroleum Company, Inc ... Towson, MD. Olin Corporation ...... Stamford, CT. Warren Holding Company ...... Providence, RI. Oneok Incorporation ...... Tulsa, OK. Warrior Asphalt Co. of Alabama ... Tuscaloosa, AL. Ozona Gas Processing Plant ...... Tyler, TX. Webco Southern Oil Inc ...... Smyrna, CA. Pacer Oil Co. of Florida, Inc ...... Ormond Beach, FL. Wellen Oil Co ...... Jersey City, NJ

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Name of firm Location dates on which such goods or services actually are used; (e) the identity of Wiesehan Oil Co. Willis Distributing Company ...... Erie, PA. each qualified producer to which such Winston Refining Company ...... Fort Worth, TX. prepaid expenses had been attributed; Witco Chemical Corporation ...... New York, NY. and (f) the percentage of such prepaid World Oil Company ...... Los Angeles, CA. expenses attributed to each such quali- Worldwide Energy Corp ...... Denver, CO. Young Refining Corporation ...... Douglasville, GA. fied producer. An operator shall file an Zia Fuels (G.G.C. Corp.) ...... Hobbs, NM. annual prepaid expenses report each year until it has reported the actual (Approved by the Office of Management and use of all the goods and services for Budget under control number 1903–0073) which a prepaid expense had been incurred and paid. For purposes of this [50 FR 4962, Feb. 5, 1985] paragraph, a prepaid expense is an expense for any injectant or fuel used Subparts B–D [Reserved] after September 30, 1981, or an expense for any other item to the extent that PART 212—MANDATORY IRS would allocate the deductions (in- PETROLEUM PRICE REGULATIONS cluding depreciation) for that item to the period after September 30, 1981. Subparts A–C [Reserved] (Approved by the Office of Management and Budget under OMB Control No.: 1903–0069) Subpart D—Producers of Crude Oil [46 FR 43654, Aug. 31, 1981, as amended at 46 Sec. FR 63209, Dec. 31, 1981] 212.78 Tertiary incentive crude oil.

Subparts E–I [Reserved] Subparts E–I [Reserved]

AUTHORITY: Emergency Petroleum Alloca- PART 215—COLLECTION OF FOR- tion Act of 1973, Pub. L. 93–159, E.O. 11748, 38 EIGN OIL SUPPLY AGREEMENT FR 33577; Economic Stabilization Act of 1970, as amended, Pub. L. 92–210, 85 Stat. 743; Pub. INFORMATION L. 93–28, 87 Stat. 27; E.O. 11748, 38 FR 33575; Cost of Living Council Order Number 47, FR Sec. 24. 215.1 Purpose. 215.2 Definitions. Subparts A–C [Reserved] 215.3 Supply reports. 215.4 Production of contracts and documents. Subpart D—Producers of Crude Oil 215.5 Pricing and volume reports. 215.6 Notice of negotiations. § 212.78 Tertiary incentive crude oil. AUTHORITY: Emergency Petroleum Alloca- Annual prepaid expenses report. By tion Act of 1973, Pub. L. 93–519, as amended, January 31 of each year after 1980, the Pub. L. 93–511, Pub. L. 94–99, Pub. L. 94–133 project operator with respect to any and Pub. L. 94–163, and Pub. L. 94–385; Fed- enhanced oil recovery project for which eral Energy Administration Act of 1974, Pub. a report had been filed previously with L. 93–275, as amended, Pub. L. 94–385; Energy DOE pursuant to paragraph (h)(2)(i) of Policy and Conservation Act, Pub. L. 94–163, this section as that paragraph was in as amended, Pub. L. 94–385; E.O. 11790, 39 FR effect on January 27, 1981, shall file 23185. with DOE a report in which the oper- SOURCE: 42 FR 48330, Sept. 23, 1977, unless ator shall certify to DOE (a) which of otherwise noted. the expenses that had been reported previously to DOE pursuant to para- § 215.1 Purpose. graph (h)(2)(i) of this section as that The purpose of this part is to set paragraph was in effect on January 27, forth certain requirements pursuant to 1981, were prepaid expenses; (b) the section 13 of the Federal Energy Ad- goods or services for which such ex- ministration Act to furnish informa- penses had been incurred and paid; (c) tion concerning foreign crude oil sup- the dates on which such goods or serv- ply arrangements. The authority set ices are intended to be used; (d) the out in this section is not exclusive.

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§ 215.2 Definitions. or payment or preemption terms, or As used in this subpart: the base to which those rates or terms Administrator means the Federal En- are applied. ergy Administrator or his delegate. (9) Related service or other fees and DOE means the Department of En- cost of providing services. ergy. (10) Restrictions on shipping or dis- Host government means the govern- position. ment of the country in which crude oil (11) Other material contract terms. is produced and includes any entity (b) Reports under this section shall which it controls, directly or indi- be made no later than (1) 60 days after rectly. final issuance of reporting forms imple- Person means any natural person, menting this regulation, as announced corporation, partnership, association, in the FEDERAL REGISTER, (2) fourteen consortium, or any other entity doing days after the date when supply ar- business or domiciled in the U.S. and rangements are entered into, or (3) includes (a) any entity controlled di- fourteen days after the initial lifting rectly or indirectly by such a person under an agreement in which the par- and (b) the interest of such a person in ties have tentatively concurred but not any joint venture, consortium or other signed, whichever occurs first. Report- entity to the extent of entitlement to ing shall be based on actual practice crude oil by reason of such interest. between the parties. Material changes in any item which must be reported § 215.3 Supply reports. pursuant to this section shall be re- (a) Any person having the right to ported no later than 30 days after a lift for export by virtue of any equity person receives actual notice of such interest, reimbursement for services, changes. exchange or purchase, from any coun- (c) Where reports under this section try, from fields actually in production, by each participant in a joint operation (1) an average of 150,000 barrels per day would be impracticable, or would result or more of crude oil for a period of at in the submission of inaccurate or mis- least one year, or (2) a total of leading information, the participants 55,000,000 barrels of crude oil for a pe- acting together may designate a single riod of less than one year, or (3) a total participant to report on any of the of 150,000,000 barrels of crude oil for the rights, obligations, or limitations af- period specified in the agreement, pur- fecting the operation as a whole. Any suant to supply arrangements with the such designation shall be signed by a host government, shall report the fol- duly authorized representative of each lowing information. participant, and shall specify: (1) Parties (including partners and (1) The precise rights, obligations, or percentage interest, where applicable). limitations to be covered by the des- (2) Grade or grades available; loading ignation; and terminal or terminals. (2) The reasons for the designation. (3) Government imposed production Such designations shall be submitted limits, if any. to the Assistant Administrator for (4) Minimum lifting obligation and International Energy Affairs, and shall maximum lifting rights. take effect only upon his written ap- (5) Details of lifting options within proval, which may at any time be re- the above limits. voked. (6) Expiration and renegotiation dates. § 215.4 Production of contracts and (7) Price terms including terms of re- documents. bates, discounts, and number of days of Whenever the Administrator deter- credit calculated from the date of load- mines that certain foreign crude oil ing. supply information is necessary to as- (8) Other payments to or interests re- sist in the formulation of energy policy tained by the host government (i.e. or to carry out any other function of taxes, royalties, and any other pay- the Administrator, he may require the ment to the host government) ex- production by any person of any agree- pressed in terms of the applicable rates ment or document relating to foreign

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oil supply arrangements or reports re- PART 216—MATERIALS ALLOCA- lated thereto. Such material shall be TION AND PRIORITY PERFORM- provided pursuant to the conditions ANCE UNDER CONTRACTS OR prescribed by the Administrator at the ORDERS TO MAXIMIZE DOMESTIC time of such order or subsequently. As ENERGY SUPPLIES used in this section, the term ‘‘agreement’’ includes proposed or draft Sec. agreements, and agreements in which 216.1 Introduction. the parties have tentatively concurred 216.2 Definitions. but have not yet signed, between or 216.3 Requests for assistance. among persons and a host country. 216.4 Evaluation by DOE of applications. 216.5 Notification of findings. § 215.5 Pricing and volume reports. 216.6 Petition for reconsideration. 216.7 Conflict in priority orders. To the extent not reported pursuant 216.8 Communications. to § 215.3, any person lifting for export 216.9 Violations. crude oil from a country shall report to the DOE within 30 days of the date on AUTHORITY: Sec. 104 of the Energy Policy and Conservation Act (EPCA) Pub. L. 94–163, which he receives actual notice: 89 Stat. 871; section 101(c) of the Defense Pro- (a) Any change (including changes in duction Act of 1950 (DPA), 50 U.S.C. App. the timing of collection) by the host 2071(c); E.O. 12919, 59 FR 29525 (June 7, 1994); government in official selling prices, E.O. 13286, 68 FR 10619 (March 5, 2003); 15 CFR royalties, host government taxes, serv- part 700; Defense Priorities and Allocations System Delegation No. 2 (August 6, 2002), as ice fees, quality or port differentials, amended at 15 CFR part 700. or any other payments made directly or indirectly for crude oil; changes in SOURCE: 43 FR 6212, Feb. 14, 1978, unless otherwise noted. participation ratios; changes in con- cessionary arrangements; and § 216.1 Introduction. (b) Any changes in restrictions on (a) This part describes and estab- lifting, production, or disposition. lishes the procedures to be used by the § 215.6 Notice of negotiations. Department of Energy (DOE) in considering and making certain findings re- Any person conducting negotiations quired by section 101(c)(2)(A) of the De- with a host government which may fense Production Act of 1950, as amend- reasonably lead to the establishment of ed, 50 U.S.C. app. 2071(c)(2)(A) (DPA). any supply arrangement subject to re- Section 101(c) authorizes the allocation porting pursuant to § 215.3(a), or may of, or priority performance under con- reasonably have a significant effect on tracts or orders (other than contracts the terms and conditions of an arrange- of employment) relating to, materials ment subject to § 215.3(a), shall notify and equipment, services, or facilities in DOE of such negotiations. Such notice order to maximize domestic energy shall be made no later than the later of supplies if the findings described in 30 days after the effective date of this section 101(c)(2) are made. Among these regulation or within 14 days after such findings are that such supplies of mate- negotiations meet the conditions of rials and equipment, services, or facili- this section, and shall specify all per- ties are critical and essential to main- sons involved and the host government tain or further exploration, production, refining, transportation or the con- affected. Notice must be in writing to servation of energy supplies or for the the Assistant Administrator for Inter- construction or maintenance of energy national Energy Affairs. Where this no- facilities. The function of finding that tice pertains to negotiations to modify supplies are critical and essential was a supply agreement previously reported delegated to the Secretary of Energy to the Department of Energy under pursuant to E.O. 12919 (59 FR 29525, this part, such notice shall include the June 7, 1994) and Department of Com- agreement serial number assigned to merce Defense Priorities and Alloca- the basic agreement. tions System Delegation No. 2, 15 CFR part 700.

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(b) The purpose of these regulations (a) Secretary means the Secretary of is to establish the procedures and cri- the Department of Energy. teria to be used by DOE in determining (b) Applicant means a person request- whether programs or projects maxi- ing priorities or allocation assistance mize domestic energy supplies and in connection with an energy program whether or not supplies of materials or project. and equipment, services, or facilities (c) Application means the written re- are critical and essential, as required quest of an applicant for assistance. by DPA section 101(c)(2)(A). The crit- (d) Assistance means use of the au- ical and essential finding will be made thority vested in the President by DPA only for supplies of materials and section 101(c) to implement priorities equipment, services, or facilities re- and allocation support. lated to those programs or projects de- (e) DHS means the Department of termined by DOE to maximize domes- Homeland Security. tic energy supplies. These regulations (f) DOC means the Department of do not require or imply that the find- Commerce. ings, on which the exercise of such au- (g) DOE means the Department of thority is conditioned, will be made in Energy. any particular case. (h) Defense Priorities and Allocations (c) If DOE determines that a program System Coordination Office means the or project maximizes domestic energy Department of Energy, Office of Elec- supplies and finds that supplies of ma- tricity and Energy Assurance, OE–30. terials and equipment, services, or fa- (i) Eligible energy program or project cilities are critical and essential to means a designated activity which maintain or further the exploration, maximizes domestic energy supplies by production, refining, transportation or furthering the exploration, production, conservation of energy supplies or for refining, transportation or conserva- the construction or maintenance of en- tion of energy supplies or construction ergy facilities, such determination and or maintenance of energy facilities finding will be communicated to the within the meaning of DPA section Department of Commerce (DOC). If 101(c), as determined by DOE. not, the applicant will be so informed. (j) Facilities means all types of build- If the determination and finding de- ings, structures, or other improve- scribed in this paragraph are made, ments to real property (but excluding DOC, pursuant to DPA section 101(c) farms, churches or other places of wor- and section 203 of E.O. 12919, will find ship, and private dwelling houses), and whether or not: The supplies of mate- services relating to the use of any such rials and equipment, services, or facili- building, structure, or other improve- ties in question are scarce; and mainte- ment. nance or furtherance of exploration, (k) Materials and equipment means: (1) production, refining, transportation, or Any raw materials (including minerals, conservation of energy supplies or the metals, and advanced processed mate- construction or maintenance of energy rials), commodities, articles, compo- facilities cannot be reasonably accom- nents (including critical components), plished without exercising the author- products, and items of supply; and ity specified in DPA section 101(c). If (2) Any technical information or these additional two findings are made, services ancillary to the use of such DOC will notify DOE, and DOE will in- raw materials, commodities, articles, form the applicant that it has been components, products, or items. granted the right to use priority rat- (l) National Defense means programs ings under the Defense Priorities and for military and energy production or Allocations System (DPAS) regulation construction, military assistance to established by the DOC, 15 CFR part any foreign nation, stockpiling, space, 700. and any directly related activity. Such term also includes emergency pre- [73 FR 10983, Feb. 29, 2008] paredness activities conducted pursuant to title VI of the Robert T. Staf- § 216.2 Definitions. ford Disaster Relief and Emergency As- As used in these regulations: sistance Act (42 U.S.C. 5195, et seq.) and

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critical infrastructure protection and the construction or operation of the restoration. energy project or program. (m) Person means an individual, cor- (5) A detailed description of the spe- poration, partnership, association, or cific supplies of materials and equip- any other organized group of persons, ment, services, or facilities in connec- or legal successor or representative tion with which assistance is re- thereof, or any state or local govern- quested, including: Components, per- ment or agency thereof. formance data (capacity, life duration, (n) Services include any effort that is etc.), standards, acceptable tolerances needed for or incidental to: in dimensions and specifications, cur- (1) The development, production, rent inventory, present and expected processing, distribution, delivery, or rates of use, anticipated deliveries and use of an industrial resource, or crit- substitution possibilities (feasibility of ical technology item; or using other materials and equipment, (2) The construction of facilities. services, or facilities). [43 FR 6212, Feb. 14, 1978, as amended at 51 (6) A detailed description of the FR 8311, Mar. 11, 1986; 73 FR 10983, Feb. 29, sources of supply, including: The name 2008] of the regular supplying company or companies, other companies capable of § 216.3 Requests for assistance. supplying the materials and equip- (a) Persons who believe that they ment, services, or facilities; location of perform work associated with a pro- supplying plants or plants capable of gram or project which may qualify as supplying the needed materials and an eligible energy program or project equipment, services, or facilities; pos- and wishing to receive assistance as sible suppliers for identical or substi- authorized by DPA section 101(c)(1) tutable materials and equipment, serv- may submit an application to DOE re- ices, or facilities and possible foreign questing DOE to determine whether a sources of supply. program or project maximizes domes- (7) A detailed description of the de- tic energy supplies and to find whether livery situation, including: Normal de- or not specific supplies of materials livery times, promised delivery time and equipment, services, or facilities without priorities assistance, and de- identified in the application are crit- livery time required for expeditious ical and essential for a purpose identi- fulfillment or completion of the pro- fied in section 101(c). The application gram or project. shall be sent to: U.S. Department of Energy, Attn: Office of Electricity and (8) Evidence of the applicant’s unsuc- Energy Assurance, OE–30, Forrestal cessful efforts to obtain on a timely Building, 1000 Independence Avenue, basis the materials and equipment, SW., Washington, DC 20585. The appli- services, or facilities in question cation shall contain the following in- through normal business channels from formation: current or other known suppliers. (1) The name and address of the ap- (9) A detailed estimate of the delay in plicant and of its duly authorized rep- fulfilling or completing the energy pro- resentative. gram or project which will be caused (2) A description of the energy pro- by inability to obtain the specified ma- gram or project for which assistance is terials and equipment, services, or fa- requested and an assessment of its im- cilities in the usual course of business. pact on the maximization of domestic (10) Any known conflicts with rated energy supplies. orders already issued pursuant to the (3) The amount of energy to be pro- DPA for supplies of the described mate- duced by the program or project which rials and equipment, services, or facili- is directly affected by the supplies of ties. the materials and equipment, services, (b) DOE, on consultation with the or facilities in question. DOC, may prescribe standard forms of (4) A statement explaining why the application or letters of instruction for materials and equipment, services, or use by all persons seeking assistance. facilities for which assistance is re- (c) In addition to the information de- quested are critical and essential to scribed above, DOE may from time to

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time request whatever additional infor- (d) Increased costs which may be as- mation it reasonably believes is rel- sociated with obtaining materials and evant to the discharge of its functions equipment, services, or facilities with- pursuant to DPA section 101(c). out assistance shall not be considered a [43 FR 6212, Feb. 14, 1978, as amended at 51 valid reason for finding the materials FR 8311, Mar. 11, 1986; 73 FR 10983, Feb. 29, and equipment, services, or facilities to 2008] be critical and essential. (e) After DOE has determined a pro- § 216.4 Evaluation by DOE of applica- gram or project to be an eligible en- tions. ergy program or project, this deter- (a) Based on the information pro- mination shall be deemed made with vided by the applicant and other avail- regard to subsequent applications in- able information, DOE will: volving the same program or project (1) Determine whether or not the en- unless and until DOE announces other- ergy program or project in connection wise. with which the application is made maximizes domestic energy supplies [43 FR 6212, Feb. 14, 1978, as amended at 73 and should be designated an eligible FR 10984, Feb. 29, 2008] energy program or project; and § 216.5 Notification of findings. (2) Find whether the described supplies of materials and equipment, serv- (a) DOE will notify DOC if it finds ices, or facilities are critical and essen- that supplies of materials and equip- tial to the eligible energy program or ment, services, or facilities for which project. an applicant requested assistance are (b) In determining whether the pro- critical and essential to an eligible en- gram or project referred to in the ap- ergy program or project, and in such plication should be designated an eligi- cases will forward to DOC the applicable energy program or project, DOE tion and whatever information or com- will consider all factors which it con- ments DOE believes appropriate. If siders relevant including, but not lim- DOE believes at any time that findings ited to, the following: previously made may no longer be (1) Quantity of energy involved; valid, it will immediately notify the (2) Benefits of timely energy program DOC and the affected applicant(s) and furtherance or project completion; afford such applicant(s) an opportunity (3) Socioeconomic impact; to show cause why such findings should (4) The need for the end product for not be withdrawn. which the materials and equipment, (b) If DOC notifies DOE that DOC has services, or facilities are allegedly re- found that supplies of materials and quired; and equipment, services, or facilities for (5) Established national energy poli- which the applicant requested assist- cies. ance are scarce and that the related el- (c) In finding whether the supplies of igible energy program or project can- materials and equipment, services, or not reasonably be accomplished with- facilities described in the application out exercising the authority specified are critical and essential to an eligible in DPA section 101(c)(1), DOE will no- energy program or project, DOE will tify the applicant that the applicant is consider all factors which it considers authorized to place rated orders for relevant including, but not limited to, specific materials and equipment, serv- the following: ices, or facilities pursuant to the provi- (1) Availability and utility of sub- sions of the DOC’s DPAS regulation. stitute materials and equipment, services, or facilities; and [73 FR 10984, Feb. 29, 2008] (2) Impact of the nonavailability of the specific supplies of materials and § 216.6 Petition for reconsideration. equipment, services, or facilities on the If DOE, after evaluating an applica- furtherance or timely completion of tion in accordance with § 216.4, does not the approved energy program or determine that the energy program or project. project maximizes domestic energy

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supplies or does not find that the sup- Building, 1000 Independence Avenue, plies of materials and equipment, serv- SW., Washington, DC 20585. ices, or facilities described in the appli- [73 FR 10984, Feb. 29, 2008] cation are critical and essential to an eligible energy program or project, it § 216.9 Violations. will so notify the applicant and the ap- Any person who willfully furnishes plicant may petition DOE for reconsid- false information or conceals any ma- eration. If DOE concludes at any time terial fact in the course of the applica- that findings previously made are no tion process or in a petition for recon- longer valid and should be withdrawn, sideration is guilty of a crime, and DOE will so notify the affected appli- upon conviction may be punished by cant(s), and such applicant(s) may peti- fine or imprisonment or both. tion DOE for reconsideration of the withdrawal decision. A petition is deemed accepted when received by DOE PART 218—STANDBY MANDATORY at the address stated in § 216.8. DOE INTERNATIONAL OIL ALLOCATION will consider the petition for reconsideration and either grant or deny the re- Subpart A—General Provisions lief requested. Written notice of the de- Sec. cision and of the reasons for the deci- 218.1 Purpose and scope. sion will be provided to the applicant. 218.2 Activation/Deactivation. There has not been an exhaustion of 218.3 Definitions. administrative remedies until a petition for reconsideration has been sub- Subpart B—Supply Orders mitted and the review procedure com- 218.10 Rule. pleted by grant or denial of the relief 218.11 Supply orders. requested. The denial of relief re- 218.12 Pricing. quested in a petition for reconsideration is a final administrative decision. Subpart C [Reserved] [43 FR 6212, Feb. 14, 1978, as amended at 51 Subpart D—Procedures FR 8312, Mar. 11, 1986; 73 FR 10984, Feb. 29, 2008] 218.30 Purpose and scope. 218.31 Incorporated procedures. § 216.7 Conflict in priority orders. 218.32 Review. 218.33 Stay. If it appears that the use of assist- 218.34 Addresses. ance pursuant to DPA section 101(c) creates or threatens to create a con- Subpart E—Investigations, Violations, flict with priorities and allocation sup- Sanctions and Judicial Actions port provided in connection with the 218.40 Investigations. national defense pursuant to DPA sec- 218.41 Violations. tion 101(a), DOE will work with the 218.42 Sanctions. DOC and other claimant agencies af- 218.43 Injunctions. fected by the conflict to reschedule de- AUTHORITY: 15 U.S.C. 751 et seq.; 15 U.S.C. liveries or otherwise accommodate the 787 et seq.; 42 U.S.C. 6201 et seq.; 42 U.S.C. 7101 competing demands. If acceptable solu- et seq.; E.O. 11790, 39 FR 23185; E.O. 12009, 42 tions cannot be agreed upon by the FR 46267; 28 U.S.C. 2461 note. claimant agencies DHS will attempt to SOURCE: 44 FR 27972, May 14, 1979, unless resolve the conflicts. otherwise noted. [43 FR 6212, Feb. 14, 1978, as amended at 51 FR 8312, Mar. 11, 1986; 73 FR 10984, Feb. 29, Subpart A—General Provisions 2008] § 218.1 Purpose and scope. § 216.8 Communications. (a) This part implements section 251 All written communications con- of the Energy Policy and Conservation cerning these regulations shall be ad- Act (Pub. L. 94–163) (42 U.S.C. 6271), as dressed to: U.S. Department of Energy, amended, which authorizes the Presi- Attention: Office of Electricity and En- dent to take such action as he deter- ergy Assurance, OE–30, Forrestal mines to be necessary for performance

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of the obligations of the United States consolidated entities, (c) an unconsoli- under chapters III and IV of the Agree- dated entity, or (d) any part of a firm. ment on an International Energy Pro- IEA means the International Energy gram (TIAS 8278), insofar as such obli- Agency established to implement the gations relate to the mandatory inter- IEP. national allocation of oil by Inter- IEP means the International Energy national Energy Program participating Program established pursuant to the countries. Agreement on an International Energy (b) Applicability. This part applies to Program signed at Paris, France, on any firm engaged in producing, trans- November 18, 1974, including (a) the porting, refining, distributing or stor- Annex entitled ‘‘Emergency Reserves’’, ing oil which is subject to the jurisdic- (b) any amendment to such Agreement tion of the United States. that includes another nation as a Party to such Agreement, and (c) any § 218.2 Activation/Deactivation. technical or clerical amendment to (a) This rule shall take effect pro- such Agreement. viding: International energy supply emergency (1) The International Energy Pro- means any period (a) beginning on any gram has been activated; and, date that the President determines al- (2) The President has transmitted location of petroleum products to na- this rule to Congress, has found put- tions participating in the IEP is re- ting such rule into effect is required in quired by chapters III and IV of the order to fulfill obligations of the IEP and (b) ending on a date on which United States under the International he determines such allocation is no Energy Program and has transmitted longer required. such a finding to the Congress together Oil means crude oil, residual fuel oil, with a statement of the effective date unfinished oil, refined petroleum prod- and manner for exercise of such rule. uct and natural gas liquids, which is (b) This rule shall revert to standby owned or controlled by a firm, includ- status no later than 60 days after the ing any petroleum product destined, di- deactivation of the emergency alloca- rectly or indirectly, for import into the tion system activated to implement United States or any foreign country, the International Energy Program. or produced in the United States but excludes any oil stored in or owned and § 218.3 Definitions. controlled by the United States Gov- DOE means the Department of En- ernment in connection with the Stra- ergy established by the Department of tegic Petroleum Reserve authorized in Energy Organization Act (Pub. L. 95– section 151, et seq., of the Energy Policy 91), and includes the Secretary of En- and Conservation Act (Pub. L. 94–163). ergy or his delegate. Person means any individual, firm, EPCA means the Energy Policy and estate, trust, sole proprietorship, part- Conservation Act (Pub. L. 94–163), as nership, association, company, joint- amended. venture, corporation, governmental Firm means any association, com- unit or instrumentality thereof, or a pany, corporation, estate, individual, charitable, educational or other insti- joint-venture, partnership, or sole pro- tution, and includes any officer, direc- prietorship or any other entity how- tor, owner or duly authorized rep- ever organized including charitable, resentative thereof. educational, or other eleemosynary in- Supply order means a written direc- stitutions, and the Federal Govern- tive or a verbal communication of a ment including corporations, depart- written directive, if promptly con- ments, Federal agencies, and other in- firmed in writing, issued by the DOE strumentalities, and State and local pursuant to subpart B of this part. governments. The ERA may, in regula- United States when used in the geo- tions and forms issued in this part, graphic sense means the several States, treat as a firm: (a) A parent and the the District of Columbia, Puerto Rico, consolidated and unconsolidated enti- and the territories and possessions of ties (if any) which it directly or indi- the United States, and the outer conti- rectly controls, (b) a parent and its nental shelf as defined in 43 U.S.C. 1331.

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Subpart B—Supply Orders thereunder, except that a supply order shall not remain in effect (1) upon re- § 218.10 Rule. version of this rule to standby status (a) Upon the determination by the or (2) twelve months after the rule has President that an international energy been transmitted to Congress (which- supply emergency exists, firms engaged ever occurs first) or (3) to the extent in producing, transporting, refining, that DOE or a court of competent ju- distributing, or storing oil shall take risdiction directs that it be stayed, such actions as are determined by the modified, or rescinded. DOE to be necessary for implementa- (e) Any firm issued a supply order tion of the obligations of the United pursuant to this subpart may seek States under chapters III and IV of the modification or rescission of the supply IEP that relate to the mandatory order in accordance with procedures international allocation of oil by IEP provided in § 218.32 of this part. participating countries. (b) Any actions required in accord- § 218.12 Pricing. ance with paragraph (a) of this section shall be stated in supply orders issued The price for oil subject to a supply by DOE. order issued pursuant to this subpart (c) No firm to which a supply order is shall be based on the price conditions issued shall be required to comply with prevailing for comparable commercial such order unless the firm to which the transactions at the time the supply oil is to be provided in accordance with order is served. such supply order has agreed to a procedure for the resolution of any dispute Subpart C [Reserved] related to the terms and conditions of the sale undertaken pursuant to the supply order. The means for resolving Subpart D—Procedures any such disputes may include any procedures that are mutually acceptable § 218.30 Purpose and scope. to the parties, including arbitration be- This subpart establishes the adminis- fore the IEA if the IEA has established trative procedures applicable to supply arbitration procedures, arbitration or orders. They shall be exclusive of any adjudication before an appropriate other procedures contained in this body, or any other similar procedure. chapter, unless such other procedures are specifically made applicable hereto § 218.11 Supply orders. by this subpart. (a) A supply order shall require that the firm to which it is issued take ac- § 218.31 Incorporated procedures. tions specified therein relating to sup- The following subparts of part 205 of plying the stated volume of oil to a specified recipient including, but not this chapter are, as appropriate, hereby limited to, distributing, producing, made applicable to this part: storing, transporting or refining oil. A (a) Subpart A— General Provisions; supply order shall include a concise Provided, that § 205.11 shall not apply; statement of the pertinent facts and of and Provided further, that in addition to the legal basis on which it is issued, the methods of service specified in and shall describe the action to be § 205.7 of this chapter, service shall be taken. effective if a supply order is trans- (b) The DOE shall serve a copy of the mitted by telex, telecopies or other supply order on the firm directed to act similar means of electronic trans- as stated therein. mission of a writing and received by (c) The DOE may modify or rescind a the firm to which the supply order is supply order on its own motion or pur- addressed. suant to an application filed in accord- (b) Subpart F— Interpretation. ance with § 218.32 of this part. (c) Subpart K— Rulings. (d) A supply order shall be effective (d) Subpart M— Conferences, Hearings in accordance with its terms, and when and Public Hearings. served upon a firm directed to act

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§ 218.32 Review. plete statement of the business or (a) Purpose and scope. This subpart other reasons that justify review of the establishes the procedures for the filing supply order and a full description of of an application for review of a supply the pertinent provisions and relevant order. An application for review is a facts contained in any relevant docu- summary proceeding which will be ini- ments. Copies of all contracts, agree- tiated only if the critieria described in ments, leases, instruments, and other paragraph (g)(2) of this section are sat- documents relevant to the application isfied. shall be submitted with the applica- (b) What to file. (1) A firm filing under tion. A copy of the order of which re- this subpart shall file an ‘‘Application view is sought shall be included with for Review’’ which should be clearly la- the application. When the application beled as such both on the application pertains to only one step of a larger in- and on the outside of the envelope in tegrated transaction, the facts, cir- which the application is transmitted, cumstances, and other relevant infor- and shall be in writing and signed by mation pertaining to the entire trans- the firm filing the application. The ap- action shall be submitted. plicant shall comply with the general (2) The application shall include a filing requirements stated in 10 CFR discussion of all relevant authorities, 205.9 in addition to the requirements including, but not limited to, DOE and stated in this section. DOE rulings, regulations, interpreta- (2) If the applicant wishes to claim tions and decisions on appeal and ex- confidential treatment for any infor- ception relied upon to support the ac- mation contained in the application or tion sought therein. other documents submitted under this (g) DOE evaluation—(1) Processing. (i) subpart, the procedures set out in 10 The DOE may initiate an investigation CFR 205.9(f) shall apply. of any statement in an application and (c) When to file. An application for re- utilize in its evaluation any relevant view should be filed no later than 5 facts obtained by such investigation. days after the receipt by the applicant The DOE may solicit and accept sub- of the supply order that is the subject missions from third parties relevant to of the application, or no later than 2 any application for review provided days after the occurrence of an event that the applicant is afforded an oppor- that results in a substantial change in tunity to respond to all third party the facts or circumstances affecting submissions. In evaluating an applica- the applicant. tion for review, the DOE may convene (d) Where to file. The application for a conference, on its own initiative, if, review shall be filed with DOE Office of in its discretion, it considers that a Hearings and Appeals (OHA), 2000 M conference will advance its evaluation Street, NW., Washington, DC 20461. of the application. (e) Notice. The applicant shall send by (ii) If the DOE determines that there United States mail or deliver by hand a is insufficient information upon which copy of the application and any subse- to base a decision and if upon request quent amendments or other documents the necessary additional information is relating to the application to the Ad- not submitted, the DOE may dismiss ministrator of the Economic Regu- the application without prejudice. If latory Administration of DOE, 2000 M the failure to supply additional infor- Street, NW., Washington, DC 20461. mation is repeated or willful, the DOE Service shall be made on the ERA at may dismiss the application with prej- same time the document is filed with udice. If the applicant fails to provide OHA and each document filed with the the notice required by paragraph (e) of OHA shall include certification that this section, the DOE may dismiss the the applicant has complied with the re- application without prejudice. quirements of this paragraph. (iii) An order dismissing an applica- (f) Contents. (1) The application shall tion for any of the reasons specified in contain a full and complete statement paragraph (g)(1)(ii) of this section shall of all relevant facts pertaining to the contain a statement of the grounds for application and to the DOE action the dismissal. The order shall become sought. Such facts shall include a com- final within 5 days of its service upon

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the applicant, unless within such 5-day § 218.33 Stay. period the applicant files an amend- (a) The DOE may issue an order ment correcting the deficiencies identified in the order. Within 5 days of the granting a stay if the DOE determines filing of such amendment, the DOE that an applicant has made a compel- shall notify the applicant whether the ling showing that it would incur seri- amendment corrects the specified defi- ous and irreparable injury unless im- ciencies. If the amendment does not mediate stay relief is granted pending correct the deficiencies specified in the determination of an application for re- order, the order shall become a final view pursuant to this subpart. An ap- order of the DOE of which the appli- plication for a stay shall be labeled as cant may seek judicial review. such on the application and on the out- (2) An application for review of an side of the envelope in which the appli- order shall be processed only if the ap- cation is transmitted, and shall be in plicant demonstrates that— writing and signed by the firm filing (i) There is probable cause to believe the application. It shall include a de- that the supply order is erroneous, in- scription of the proceeding incident to equitable, or unduly burdensome; or which the stay is being sought and of (ii) There has been discovered a law, the facts and circumstances which sup- regulation, interpretation, ruling, port the applicant’s claim that it will order or decision that was in effect at incur irreparable injury unless imme- the time of the application which, if it diate stay relief is granted. The appli- had been made known to the DOE, cant shall comply with the general fil- would have been relevant to the supply ing requirements stated in 10 CFR 205.9 order and would have substantially al- in addition to the requirements stated tered the supply order; or in this section. The DOE on its own ini- (iii) There has been a substantial change in the facts or circumstances tiative may also issue an order grant- affecting the applicant, which change ing a stay upon a finding that a firm has occurred during the interval be- will incur irreparable injury if such an tween issuance of the supply order and order is not granted. the date of the application and was (b) An order granting a stay shall ex- caused by forces or circumstances be- pire by its terms within such time yond the control of the applicant. after issuance, not to exceed 30 days as (h) Decision. (1) Upon consideration of the DOE specifies in the order, except the application and other relevant in- that it shall expire automatically 5 formation received or obtained during days following its issuance if the appli- the proceeding, the DOE shall issue an cant fails within that period to file an order granting or denying the modi- application for review unless within fication or rescission of the supply that period the DOE for good cause order requested in the application for shown, extends the time during which review. the applicant may file an application (2) The DOE shall process applica- for review. tions for review as expeditiously as (c) The order granting or denying a possible. When administratively fea- stay is not an order of the DOE subject sible, the DOE shall issue an order to administrative review. granting or denying the application within 20 business days after receipt of § 218.34 Addresses. the application. (3) The order shall include a written All correspondence, petitions, and statement setting forth the relevant any information required by this part facts and the legal basis of the order. shall be submitted to: Administrator, The order shall state that it is a final Economic Regulatory Administration, order of which the applicant may seek Department of Energy, 2000 M Street, judicial review. NW., Washington, DC 20461, and to the (4) The DOE shall serve a copy of the Director, Office of Hearings and Ap- order upon the applicant and any other peals, Department of Energy, 2000 M party who participated in the pro- Street, NW., Washington, DC 20461. ceeding.

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Subpart E—Investigations, Viola- (h) If facts disclosed by an investigations, Sanctions and Judicial tion indicate that further action is un- Actions necessary or unwarranted, the investigative file may be closed without § 218.40 Investigations. prejudice to further investigation by the DOE at any time that cir- (a) The DOE may initiate and con- cumstances so warrant. duct investigations relating to the scope, nature and extent of compliance § 218.41 Violations. by any person with the rules, regula- Any practice that circumvents, con- tions or statutes of the DOE or any travenes or results in the circumven- order promulgated by the DOE under tion or contravention of the require- the authority of section 251 of EPCA, ments of any provision of this part 218 or any court decree. or any order issued pursuant thereto is (b) Any duly designated and author- a violation of the DOE regulations ized representative of DOE has the au- stated in this part and is unlawful. thority to conduct an investigation and to take such action as he deems § 218.42 Sanctions. necessary and appropriate to the con- (a) General. Any person who violates duct of the investigation including any any provisions of this part 218 or any action pursuant to § 205.8. order issued pursuant thereto shall be (c) There are no parties, as that term subject to penalties and sanctions as is used in adjudicative proceedings, in provided herein. an investigation under this subpart, (1) The provisions herein for pen- and no person may intervene or par- alties and sanctions shall be deemed ticipate as a matter of right in any in- cumulative and not mutually exclu- vestigation under this subpart. sive. (d) Any person may request the DOE (2) Each day that a violation of the to initiate an investigation pursuant to provisions of this part 218 or any order paragraph (a) of this section. A request issued pursuant thereto continues shall for an investigation shall set forth the be deemed to constitute a separate vio- subject matter to be investigated as lation within the meaning of the provi- fully as possible and include supporting sions of this part relating to fines and documentation and information. No civil penalties. particular forms or procedures are re- (b) Penalties. (1) Any person who vio- quired. lates any provision of part 218 of this (e) Any person who is requested to chapter or any order issued pursuant furnish documentary evidence or testi- thereto shall be subject to a civil pen- mony in an investigation, upon written alty of not more than $5,500 for each request, shall be informed of the gen- violation. eral purpose of the investigation. (2) Any person who willfully violates (f) DOE shall not disclose informa- any provision of this part 218 or any tion or documents that are obtained order issued pursuant thereto shall be during any investigation unless (1) subject to a fine of not more than DOE directs or authorizes the public $10,000 for each violation. disclosure of the investigation; (2) the (3) Any person who knowingly and information or documents are a matter willfully violates any provision of this of public record; or (3) disclosure is not part 218 or any order issued pursuant precluded by the Freedom of Informa- thereto with respect to the sale, offer tion Act, 5 U.S.C. 552 and 10 CFR part of sale, or distribution in commerce of 1004. oil in commerce after having been sub- (g) During the course of an investiga- ject to a sanction under paragraph tion any person may submit at any (b)(1) or (2) of this section for a prior time any document, statement of facts violation of the provisions of this part or memorandum of law for the purpose 218 or any order issued pursuant thereof explaining the person’s position or to with respect to the sale, offer of furnish evidence which the person con- sale, or distribution in commerce of oil siders relevant to a matter under in- shall be subject to a fine of not more vestigation. than $50,000 or imprisonment for not

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more than six months, or both, for Subpart B—Exclusions each violation. (4) Actions for penalties under this 221.11 Natural gas and ethane. section are prosecuted by the Depart- Subpart C—Definitions ment of Justice upon referral by the DOE. 221.21 Definitions. (5) When the DOE considers it to be appropriate or advisable, the DOE may Subpart D—Administrative Procedures and compromise and settle any action Sanctions under this paragraph, and collect civil 221.31 Requests by DOD. penalties. 221.32 Evaluation of DOD request. (c) Other Penalties. Willful conceal- 221.33 Order. ment of material facts, or making of 221.34 Effect of order. false, fictitious or fraudulent state- 221.35 Contractual requirements. ments or representations, or submis- 221.36 Records and reports. sion of a document containing false, 221.37 Violations and sanctions. fictitious or fraudulent statements pertaining to matters within the scope of AUTHORITY: Defense Production Act, 50 U.S.C. App. 2061 et seq., E.O. 10480 (18 FR 4939, this part 218 by any person shall sub- Aug. 18, 1953) as amended by E.O. 12038 (43 FR ject such persons to the criminal pen- 4957, Feb. 7, 1978), and E.O. 11790 (39 FR 23785, alties provided in 18 U.S.C. 1001 (1970). June 27, 1974).

[44 FR 27972, May 14, 1979, as amended at 62 SOURCE: 45 FR 76433, Nov. 19, 1980, unless FR 46183, Sept. 2, 1997] otherwise noted.

§ 218.43 Injunctions. Subpart A—General Whenever it appears to the DOE that any firm has engaged, is engaging, or is § 221.1 Scope. about to engage in any act or practice This part sets forth the procedures to constituting a violation of any regula- be utilized by the Economic Regu- tion or order issued under this part 218, latory Administration of the Depart- the DOE may request the Attorney ment of Energy and the Department of General to bring a civil action in the Defense whenever the priority supply appropriate district court of the United of crude oil and petroleum products is States to enjoin such acts or practices necessary or appropriate to meet na- and, upon a proper showing, a temporary restraining order or a prelimi- tional defense needs. The procedures nary or permanent injunction shall be available in this part are intended to granted without bond. The relief supplement but not to supplant other sought may include a mandatory in- regulations of the ERA regarding the junction commanding any firm to com- allocation of crude oil, residual fuel oil ply with any provision of such order or and refined petroleum products. regulation, the violation of which is prohibited by section 524 of the EPCA. § 221.2 Applicability. This part applies to the mandatory PART 220 [RESERVED] supply of crude oil, refined petroleum products (including liquefied petroleum gases) and lubricants to the Depart- PART 221—PRIORITY SUPPLY OF ment of Defense for its own use or for CRUDE OIL AND PETROLEUM purchases made by the Department of PRODUCTS TO THE DEPARTMENT Defense on behalf of other Federal Gov- OF DEFENSE UNDER THE DEFENSE ernment agencies. PRODUCTION ACT Subpart B—Exclusions Subpart A—General § 221.11 Natural gas and ethane. Sec. 221.1 Scope. The supply of natural gas and ethane 221.2 Applicability. are excluded from this part.

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Subpart C—Definitions ment Agency that it has requested a priority rating from ERA. § 221.21 Definitions. (c) Requests from DOD shall set forth For purposes of this part— the following: Directive means an official action (1) The quantity and quality of crude taken by ERA which requires a named oil or petroleum products determined person to take an action in accordance by DOD to be required to meet national with its provisions. defense requirements; (2) The required delivery dates; DOD means the Department of De- (3) The defense-related activity and fense, including Military Departments the supply location for which the crude and Defense Agencies, acting through oil or petroleum product is to be deliv- either the Secretary of Defense or the ered; designee of the Secretary. (4) The current or most recent sup- ERA means the Economic Regulatory pliers of the crude oil or petroleum Administration of the Department of product and the reasons, if known, why Energy. the suppliers will not supply the re- National defense means programs for quested crude oil or petroleum product; military and atomic energy production (5) The degree to which it is feasible or construction, military assistance to for DOD to use an alternate product in any foreign nation, stockpiling and lieu of that requested and, if such an space, or activities directly related to alternative product can be used, the ef- any of the above. forts which have been made to obtain Person means any individual, cor- the alternate product; poration, partnership, association or (6) The period during which the any other organized group of persons, shortage of crude oil or petroleum and includes any agency of the United products is expected to exist; States Government or any other gov- (7) The proposed supply source for ernment. the additional crude oil or petroleum Priority-rated supply order means any products required, which shall, if prac- delivery order for crude oil or petro- ticable, be the historical supplier of leum products issued by DOD bearing a such crude oil or product to DOD; and priority rating issued by ERA under (8) Certification that DOD has made this part. each of the findings required by para- Supplier means any person other than graph (a) of this section. the DOD which supplies, sells, transfers, or otherwise furnishes (as by con- § 221.32 Evaluation of DOD request. signment) crude oil or petroleum prod- (a) Upon receipt of a request from uct to any other person. DOD for a priority rating as provided in § 221.31, it shall be reviewed prompt- Subpart D—Administrative ly by ERA. The ERA will assess the re- Procedures and Sanctions quest in terms of: (1) The information provided under § 221.31 Requests by DOD. § 221.31; (a) When DOD finds that (1) a fuel (2) Whether DOD’s national defense supply shortage for DOD exists or is needs for crude oil or petroleum prod- anticipated which would have a sub- ucts can reasonably be satisfied with- stantial negative impact on the na- out exercising the authority specified tional defense, and (2) the defense ac- in this part; tivity for which fuel is required cannot (3) The capability of the proposed be postponed until after the fuel supply supplier to supply the crude oil or pe- shortage is likely to terminate, DOD troleum product in the amounts re- may submit a written request to ERA quired; for the issuance to it of a priority rat- (4) The known capabilities of alter- ing for the supply of crude oil and pe- native suppliers; troleum products. (5) The feasibility to DOD of con- (b) Not later than the transmittal verting to and using a product other date of its request to ERA, DOD shall than that requested; and notify the Federal Emergency Manage- (6) Any other relevant information.

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(b) The ERA promptly shall notify the national defense ERA is authorized the proposed supplier of DOD’s request to issue a directive to a supplier of for a priority rating specified under crude oil or petroleum product requir- this part. The proposed supplier shall ing delivery of specified qualities and have a period specified in the notice, quantities of such crude oil or petro- not to exceed fifteen (15) days from the leum products to DOD at or during date it is notified of DOD’s request, to specified delivery dates or periods. show cause in writing why it cannot (d) Use of ratings by suppliers. No sup- supply the requested quantity and plier who receives a priority-rated sup- quality of crude oil or petroleum prod- ply order or directive issued under the ucts. ERA shall consider this informa- authority of this section may use such tion in determining whether to issue priority order or directive in order to the priority rating. (c) If acceptance by a supplier of a obtain materials necessary to meet its rated order would create a conflict supply obligations thereunder. with another rated order of the supplier, it shall include all pertinent in- § 221.34 Effect of order. formation regarding such conflict in its Defense against claims for damages. No response to the show cause order pro- person shall be liable for damages or vided for in subsection (b), and ERA, in penalties for any act or failure to act consultation with DOD and the Federal resulting directly or indirectly from Emergency Management Agency shall compliance with any ERA authorized determine the priorities for meeting all priority-rated supply order or ERA di- such requirements. rective issued pursuant to this part, (d) ERA may waive some or all of the notwithstanding that such priority- requirements of § 221.31 or this section rated supply order or directive there- where the Secretary of Defense or his after be declared by judicial or other designee certifies, and has so notified competent authority to be invalid. the Federal Emergency Management Agency, that a fuel shortage for DOD § 221.35 Contractual requirements. exists or is imminent and that compliance with such requirements would (a) No supplier may discriminate have a substantial negative impact on against an order or contract on which a the national defense. priority rating has been placed under this part by charging higher prices, by § 221.33 Order. imposing terms and conditions for such (a) Issuance. If ERA determines that orders or contracts different from issuance of a priority rating for a crude other generally comparable orders or oil or refined petroleum product is nec- contracts, or by any other means. essary to provide the crude oil or pe- (b) Contracts with priority ratings troleum products needed to meet the shall be subject to all applicable laws national defense requirement estab- and regulations which govern the mak- lished by DOD, it shall issue such a rating of such contracts, including those ing to DOD for delivery of specified specified in 10 CFR 211.26(e). qualities and quantities of the crude oil or refined petroleum products on or § 221.36 Records and reports. during specified delivery dates or peri- (a) Each person receiving an order or ods. In accordance with the terms of directive under this part shall keep for the order, DOD may then place such priority rating on a supply order. at least two years from the date of full (b) Compliance. Each person who re- compliance with such order or direc- ceives a priority-rated supply order tive accurate and complete records of pursuant to this part shall supply the crude oil and petroleum product deliv- specified crude oil or petroleum prod- eries made in accordance with such ucts to DOD in accordance with the order or directive. terms of that order. (c) ERA directives. Notwithstanding any other provisions of this part, where necessary or appropriate to promote

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(b) All records required to be main- ited, or willfully fails to perform any tained shall be made available upon re- act required by this part or any order quest for inspection and audit by duly or directive issued under this part shall authorized representatives of the ERA. be subject to a fine of not more than $10,000 for each violation or imprisoned (Approved by the Office of Management and Budget under control number 1903–0073) for not more than one year for each violation, or both. [45 FR 76433, Nov. 19, 1980, as amended at 46 (c) Whenever in the judgment of the FR 63209, Dec. 31, 1981] Administrator of ERA any person has engaged or is about to engage in any § 221.37 Violations and sanctions. acts or practices which constitute or (a) Any practice that circumvents or will constitute a violation of any provi- contravenes the requirements of this sion of these regulations, the Adminis- part or any order or directive issued trator may make application to the ap- under this part is a violation of the propriate court for an order enjoining regulations provided in this part. such acts or practices, or for an order (b) Criminal penalties. Any person enforcing compliance with such provi- who willfully performs any act prohib- sion.

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