[Title 10 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2021 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 10
Energy
________________________
Parts 200 to 499
Revised as of January 1, 2021
Containing a codification of documents of general
applicability and future effect
As of January 1, 2021
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 10:
Chapter II--Department of Energy 3
Finding Aids:
Table of CFR Titles and Chapters........................ 1239
Alphabetical List of Agencies Appearing in the CFR...... 1259
List of CFR Sections Affected........................... 1269
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 10 CFR 202.21 refers
to title 10, part 202,
section 21.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
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PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
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the Code prior to the LSA listings at the end of the volume, consult
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2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
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CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
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the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
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INQUIRIES
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available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register
January 1, 2021
[[Page ix]]
THIS TITLE
Title 10--Energy is composed of four volumes. The parts in these
volumes are arranged in the following order: Parts 1-50, 51-199, 200-499
and part 500-end. The first and second volumes containing parts 1-199
are comprised of chapter I--Nuclear Regulatory Commission. The third and
fourth volumes containing part 200-end are comprised of chapters II,
III, and X--Department of Energy, chapter XIII--Nuclear Waste Technical
Review Board, chapter XVII--Defense Nuclear Facilities Safety Board, and
chapter XVIII--Northeast Interstate Low-Level Radioactive Waste
Commission. The contents of these volumes represent all current
regulations codified under this title of the CFR as of January 1, 2021.
For this volume, Gabrielle E. Burns was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 10--ENERGY
(This book contains parts 200 to 499)
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Part
chapter ii--Department of Energy............................ 202
[[Page 3]]
CHAPTER II--DEPARTMENT OF ENERGY
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SUBCHAPTER A--OIL
Part Page
200-201
[Reserved]
202 Production or disclosure of material or
information............................. 5
205 Administrative procedures and sanctions..... 6
207 Collection of information................... 51
209 International voluntary agreements.......... 55
210 General allocation and price rules.......... 60
212 Mandatory petroleum price regulations....... 67
215 Collection of foreign oil supply agreement
information............................. 68
216 Materials allocation and priority
performance under contracts or orders to
maximize domestic energy supplies....... 69
217 Energy priorities and allocations system.... 73
218 Standby mandatory international oil
allocation.............................. 93
220
[Reserved]
221 Priority supply of crude oil and petroleum
products to the Department of Defense
under the Defense Production Act........ 98
SUBCHAPTER B--CLIMATE CHANGE
300 Voluntary Greenhouse Gas Reporting Program:
General guidelines...................... 102
SUBCHAPTER C [RESERVED]
SUBCHAPTER D--ENERGY CONSERVATION
400-417
[Reserved]
420 State energy program........................ 124
429 Certification, compliance, and enforcement
for consumer products and commercial and
industrial equipment.................... 138
430 Energy conservation program for consumer
products................................ 277
431 Energy efficiency program for certain
commercial and industrial equipment..... 783
[[Page 4]]
433 Energy efficiency standards for the design
and construction of new Federal
commercial and multi-family high-rise
residential buildings................... 1039
434 Energy code for new Federal commercial and
multi-family high rise residential
buildings............................... 1043
435 Energy efficiency standards for the design
and construction of new Federal low-rise
residential buildings................... 1104
436 Federal energy management and planning
programs................................ 1111
440 Weatherization assistance for low-income
persons................................. 1138
445
[Reserved]
451 Renewable energy production incentives...... 1160
452 Production incentives for cellulosic
biofuels................................ 1165
455 Grant programs for schools and hospitals and
buildings owned by units of local
government and public care institutions. 1169
456
[Reserved]
470 Appropriate Technology Small Grants Program. 1200
473 Automotive propulsion research and
development............................. 1205
474 Electric and Hybrid Vehicle Research,
Development, and Demonstration Program;
petroleum-equivalent fuel economy
calculation............................. 1209
490 Alternative fuel transportation program..... 1210
491-499
[Reserved]
[[Page 5]]
SUBCHAPTER A_OIL
PARTS 200 201 [RESERVED]
PART 202_PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION--Table of Contents
Subpart A [Reserved]
Subpart B_Production or Disclosure in Response to Subpoenas or Demands
of Courts or Other Authorities
Sec.
202.21 Purpose and scope.
202.22 Production or disclosure prohibited unless approved by
appropriate DOE official.
202.23 Procedure in the event of a demand for production or disclosure.
202.24 Final action by the appropriate DOE official.
202.25 Procedure where a decision concerning a demand is not made prior
to the time a response to the demand is required.
202.26 Procedure in the event of an adverse ruling.
Authority: Freedom of Information Act, 5 U.S.C. 552; Emergency
Petroleum Allocation Act of 1973, Pub. L. 93-159; Federal Energy
Administration Act of 1974, Pub. L. 93-275, E.O. 11790, 39 FR 23185.
Subpart A [Reserved]
Subpart B_Production or Disclosure in Response to Subpoenas or Demands
of Courts or Other Authorities
Source: 39 FR 35472, Mar. 13, 1974, unless otherwise noted.
Sec. 202.21 Purpose and scope.
(a) This subpart sets forth the procedures to be followed when a
subpoena, order, or other demand (hereinafter referred to as a
``demand'') of a court or other authority is issued for the production
or disclosure of (1) any material contained in the files of the
Department of Energy (DOE), (2) any information relating to material
contained in the files of the DOE, or (3) any information or material
acquired by any person while such person was an employee of the DOE as a
part of the performance of his official duties or because of his
official status.
(b) For purposes of this subpart, the term ``Employee of the DOE''
includes all officers and employees of the United States appointed by,
or subject to the supervision, jurisdiction, or control of, the
Administrator of DOE.
Sec. 202.22 Production or disclosure prohibited unless approved
by appropriate DOE official.
No employee or former employee of the DOE shall, in response to a
demand of a court or other authority, produce any material contained in
the file of the DOE or disclose any information relating to material
contained in the files of the DOE, or disclose any information or
produce any material acquired as part of the performance of his official
duties or because of his official status without prior approval of the
General Counsel of DOE.
Sec. 202.23 Procedure in the event of a demand for production or disclosure.
(a) Whenever a demand is made upon an employee or former employee of
the DOE for the production of material or the disclosure of information
described in Sec. 202.21(a), he shall immediately notify the Regional
Counsel for the region where the issuing authority is located. The
Regional Counsel shall immediately request instructions from the General
Counsel of DOE.
(b) If oral testimony is sought by the demand, an affidavit, or, if
that is not feasible, a statement by the party seeking the testimony or
his attorney, setting forth a summary of the testimony desired, must be
furnished for submission by the Regional Counsel to the General Counsel.
Sec. 202.24 Final action by the appropriate DOE official.
If the General Counsel approves a demand for the production of
material or disclosure of information, he shall so notify the Regional
Counsel and such other persons as circumstances may warrant.
[[Page 6]]
Sec. 202.25 Procedure where a decision concerning a demand is not made
prior to the time a response to the demand is required.
If response to the demand is required before the instructions from
the General Counsel are received, a U.S. attorney or DOE attorney
designated for the purpose shall appear with the employee or former
employee of the DOE upon whom the demand has been made, and shall
furnish the court or other authority with a copy of the regulations
contained in this subpart and inform the court or other authority that
the demand has been, or is being, as the case may be, referred for the
prompt consideration of the appropriate DOE official and shall
respectfully request the court or authority to stay the demand pending
receipt of the requested instructions.
Sec. 202.26 Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the effect of the
demand in response to a request made in accordance with Sec. 202.25
pending receipt of instructions, of if the court or other authority
rules that the demand must be complied with irrespective of instructions
not to produce the material or disclose the information sought, the
employee or former employee upon whom the demand has been made shall
respectfully decline to comply with the demand. ``United States ex rel
Touhy v. Ragen,'' 340 U.S. 462.
PART 205_ADMINISTRATIVE PROCEDURES AND SANCTIONS--Table of Contents
Subpart A_General Provisions
Sec.
205.1 Purpose and scope.
205.2 Definitions.
205.3 Appearance before the DOE or a State Office.
205.4 Filing of documents.
205.5 Computation of time.
205.6 Extension of time.
205.7 Service.
205.8 Subpoenas, special report orders, oaths, witnesses.
205.9 General filing requirements.
205.10 Effective date of orders.
205.11 Order of precedence.
205.12 Addresses for filing documents with the DOE.
205.13 Where to file.
205.14 Ratification of prior directives, orders, and actions.
205.15 Public docket room.
Subparts B-E [Reserved]
Subpart F_Interpretation
205.80 Purpose and scope.
205.81 What to file.
205.82 Where to file.
205.83 Contents.
205.84 DOE evaluation.
205.85 Decision and effect.
205.86 Appeal.
Subparts G-J [Reserved]
Subpart K_Rulings
205.150 Purpose and scope.
205.151 Criteria for issuance.
205.152 Modification or rescission.
205.153 Comments.
205.154 Appeal.
Subpart L [Reserved]
Subpart M_Conferences, Hearings, and Public Hearings
205.170 Purpose and scope.
205.171 Conferences.
205.172 Hearings.
205.173 Public hearings.
Subpart N [Reserved]
Subpart O_Notice of Probable Violation, Remedial Order, Notice of
Proposed Disallowance, and Order of Disallowance
205.190 Purpose and scope.
205.191 [Reserved]
205.192 Proposed remedial order.
205.192A Burden of proof.
205.193 Notice of Objection.
205.193A Submission of ERA supplemental information.
205.194 Participants; official service list.
205.195 Filing and service of all submissions.
205.196 Statement of objections.
205.197 Response to statement of objections; reply.
205.198 Discovery.
205.198A Protective order.
205.199 Evidentiary hearing.
205.199A Hearing for the purpose of oral argument only.
205.199B Remedial order.
205.199C Appeals of remedial order to FERC.
205.199D-205.199E [Reserved]
205.199F Ex parte communications.
205.199G Extension of time; Interim and Ancillary Orders.
205.199H Actions not subject to administrative appeal.
[[Page 7]]
205.199I Remedies.
205.199J Consent order.
Subparts P-T [Reserved]
Subpart U_Procedures for Electricity Export Cases
205.260 Purpose and scope.
205.261-205.269 [Reserved]
205.270 Off-the-record communications.
Subpart V_Special Procedures for Distribution of Refunds
205.280 Purpose and scope.
205.281 Petition for implementation of special refund procedures.
205.282 Evaluation of petition by the Office of Hearings and Appeals.
205.283 Applications for refund.
205.284 Processing of applications.
205.285 Effect of failure to file a timely application.
205.286 Limitations on amount of refunds.
205.287 Escrow accounts, segregated funds and other guarantees.
205.288 Interim and ancillary orders.
Subpart W_Electric Power System Permits and Reports; Applications;
Administrative Procedures and Sanctions; Grid Security Emergency Orders
Application for Authorization to Transmit Electric Energy to a Foreign
Country
205.300 Who shall apply.
205.301 Time of filing.
205.302 Contents of application.
205.303 Required exhibits.
205.304 Other information.
205.305 Transferability.
205.306 Authorization not exclusive.
205.307 Form and style; number of copies.
205.308 Filing schedule and annual reports.
205.309 Filing procedures and fees.
Application for Presidential Permit Authorizing the Construction,
Connection, Operation, and Maintenance of Facilities for Transmission of
Electric Energy at International Boundaries
205.320 Who shall apply.
205.321 Time of filing.
205.322 Contents of application.
205.323 Transferability.
205.324 Form and style; number of copies.
205.325 Annual report.
205.326 Filing procedures and fees.
205.327 Other information.
205.328 Environmental requirements for Presidential Permits--Alternative
1.
205.329 Environmental requirements for Presidential Permits--Alternative
2.
Report of Major Electric Utility System Emergencies
205.350 General purpose.
205.351 Reporting requirements.
205.352 Information to be reported.
205.353 Special investigation and reports.
Emergency Interconnection of Electric Facilities and the Transfer of
Electricity to Alleviate an Emergency Shortage of Electric Power
205.370 Applicability.
205.371 Definition of emergency.
205.372 Filing procedures; number of copies.
205.373 Application procedures.
205.374 Responses from ``entities'' designated in the application.
205.375 Guidelines defining inadequate fuel or energy supply.
205.376 Rates and charges.
205.377 Reports.
205.378 Disconnection of temporary facilities.
205.379 Application for approval of the installation of permanent
facilities for emergency use only.
Internal Procedures for Issuance of a Grid Security Emergency Order
205.380 Definitions.
205.381 Applicability of emergency order.
205.382 Issuing an emergency order.
205.383 Consultation.
205.384 Communication of orders.
205.385 Clarification or reconsideration.
205.386 Temporary access to classified and sensitive information.
205.387 Tracking compliance.
205.388 Enforcement.
205.389 Rehearing and judicial review.
205.390 Liability exemptions.
205.391 Termination of an emergency order.
Authority: Emergency Petroleum Allocation Act of 1973, Pub. L. 93-
159; Federal Energy Administration Act of 1974, Pub. L. 93-275 (88 Stat.
96; E.O. 11790, 39 FR 23185); 42 U.S.C. 7101 et seq., unless otherwise
noted.
Source: 39 FR 35489, Oct. 1, 1974, unless otherwise noted.
Subpart A_General Provisions
Sec. 205.1 Purpose and scope.
This part establishes the procedures to be utilized and identifies
the sanctions that are available in proceedings before the Department of
Energy and State Offices, in accordance with parts 209 through 214 of
this chapter. Any exception, exemption, appeal, stay, modification,
recession, redress or resolution of private grievance sought under the
authority of 42 U.S.C. 7194 shall be
[[Page 8]]
governed by the procedural rules set forth in 10 CFR part 1003.
[61 FR 35114, July 5, 1996]
Sec. 205.2 Definitions.
The definitions set forth in other parts of this chapter shall apply
to this part, unless otherwise provided. In addition, as used in this
part, the term:
Action means an order, interpretation, notice of probable violation
or ruling issued, or a rulemaking undertaken by the DOE or, as
appropriate, by a State Office.
Adjustment means a modification of the base period volume or other
measure of allocation entitlement in accordance with part 211 of this
chapter.
Aggrieved, for purposes of administrative proceedings, describes and
means a person with an interest sought to be protected under the FEAA,
EPAA, or Proclamation No. 3279, as amended, who is adversely affected by
an order or interpretation issued by the DOE or a State Office.
Appropriate Regional Office or appropriate State Office means the
office located in the State or DOE region in which the product will be
physically delivered.
Assignment means an action designating that an authorized purchaser
be supplied at a specified entitlement level by a specified supplier.
Conference means an informal meeting, incident to any proceeding,
between DOE or State officials and any person aggrieved by that
proceeding.
Consent order means a document of agreement between DOE and a person
prohibiting certain acts, requiring the performance of specific acts or
including any acts which DOE could prohibit or require pursuant to Sec.
205.195.
Duly authorized representative means a person who has been
designated to appear before the DOE or a State Office in connection with
a proceeding on behalf of a person interested in or aggrieved by that
proceeding. Such appearance may consist of the submission of
applications, petitions, requests, statements, memoranda of law, other
documents, or of a personal appearance, verbal communication, or any
other participation in the proceeding.
EPAA means the Emergency Petroleum Allocation Act of 1973 (Pub. L.
93-159).
EPCA means the Energy Policy and Conservation Act (Pub. L. 94-163).
Exception means the waiver or modification of the requirements of a
regulation, ruling or generally applicable requirement under a specific
set of facts.
Exemption means the release from the obligation to comply with any
part or parts, or any subpart thereof, of this chapter.
DOE means the Department of Energy, created by the FEAA and includes
the DOE National Office and Regional Offices.
FEAA means the Federal Energy Administration Act of 1974 (Pub. L.
93-275).
Federal legal holiday means New Year's Day, Washington's Birthday,
Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day,
Thanksgiving Day, Christmas Day, and any other day appointed as a
national holiday by the President or the Congress of the United States.
Interpretation means a written statement issued by the General
Counsel or his delegate or Regional Counsel, in response to a written
request, that applies the regulations, rulings, and other precedents
previously issued, to the particular facts of a prospective or completed
act or transaction.
Notice of probable violation means a written statement issued to a
person by the DOE that states one or more alleged violations of the
provisions of this chapter or any order issued pursuant thereto.
Order means a written directive or verbal communication of a written
directive, if promptly confirmed in writing, issued by the DOE or a
State Office. It may be issued in response to an application, petition
or request for DOE action or in response to an appeal from an order, or
it may be a remedial order or other directive issued by the DOE or a
State Office on its own initiative. A notice of probable violation is
not an order. For purposes of this definition a ``written directive''
shall include telegrams, telecopies and similar transcriptions.
[[Page 9]]
Person means any individual, firm, estate, trust, sole
proprietorship, partnership, association, company, joint-venture,
corporation, governmental unit or instrumentality thereof, or a
charitable, educational or other institution, and includes any officer,
director, owner or duly authorized representative thereof.
Proceeding means the process and activity, and any part thereof,
instituted by the DOE or a State Office, either on its own initiative or
in response to an application, complaint, petition or request submitted
by a person, that may lead to an action by the DOE or a State Office.
Remedial order means a directive issued by the DOE requiring a
person to cease a violation or to eliminate or to compensate for the
effects of a violation, or both.
Ruling means an official interpretative statement of general
applicability issued by the DOE General Counsel and published in the
Federal Register that applies the DOE regulations to a specific set of
circumstances.
State Office means a State Office of Petroleum Allocation certified
by the DOE upon application pursuant to part 211 of this chapter.
Throughout this part the use of a word or term in the singular shall
include the plural and the use of the male gender shall include the
female gender.
(Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended,
Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133, Pub. L. 94-163, and Pub.
L. 94-385; Federal Energy Administration Act of 1974, Pub. L. 93-275, as
amended, Pub. L. 94-385; Energy Policy and Conservation Act, Pub. L. 94-
163, as amended, Pub. L. 94-385; E.O. 11790, 39 FR 23185; Department of
Energy Organization Act, Pub. L. 95-91; E.O. 12009, 42 FR 46267)
[39 FR 35489, Oct. 1, 1974, as amended at 40 FR 36555, Aug. 21, 1975; 40
FR 36761, Aug. 22, 1975; 41 FR 36647, Aug. 31, 1976; 43 FR 14437, Apr.
6, 1978]
Sec. 205.3 Appearance before the DOE or a State Office.
(a) A person may make an appearance, including personal appearances
in the discretion of the DOE, and participate in any proceeding
described in this part on his own behalf or by a duly authorized
representative. Any application, appeal, petition, request or complaint
filed by a duly authorized representative shall contain a statement by
such person certifying that he is a duly authorized representative,
unless a DOE form requires otherwise. Falsification of such
certification will subject such person to the sanctions stated in 18
U.S.C. 1001 (1970).
(b) Suspension and disqualification: The DOE or a State Office may
deny, temporarily or permanently, the privilege of participating in
proceedings, including oral presentation, to any individual who is found
by the DOE--
(1) To have made false or misleading statements, either verbally or
in writing;
(2) To have filed false or materially altered documents, affidavits
or other writings;
(3) To lack the specific authority to represent the person seeking a
DOE or State Office action; or
(4) To have engaged in or to be engaged in contumacious conduct that
substantially disrupts a proceeding.
Sec. 205.4 Filing of documents.
(a) Any document, including, but not limited to, an application,
request, complaint, petition and other documents submitted in connection
therewith, filed with the DOE or a State Office under this chapter is
considered to be filed when it has been received by the DOE National
Office, a Regional Office or a State Office. Documents transmitted to
the DOE must be addressed as required by Sec. 205.12. All documents and
exhibits submitted become part of an DOE or a State Office file and will
not be returned.
(b) Notwithstanding the provisions of paragraph (a) of this section,
an appeal, a response to a denial of an appeal or application for
modification or recision in accordance with Sec. Sec. 205.106(a)(3) and
205.135(a)(3), respectively, a reply to a notice of probable violation,
the appeal of a remedial order or remedial order for immediate
compliance, a response to denial of a claim of confidentiality, or a
comment submitted in connection with any proceeding transmitted by
registered or certified mail and addressed to the appropriate office is
considered to be filed upon mailing.
[[Page 10]]
(c) Hand-delivered documents to be filed with the Office of
Exceptions and Appeals shall be submitted to Room 8002 at 2000 M Street,
NW., Washington, D.C. All other hand-delivered documents to be filed
with the DOE National Office shall be submitted to the Executive
Secretariat at 12th and Pennsylvania Avenue, NW., Washington, D.C. Hand-
delivered documents to be filed with a Regional Office shall be
submitted to the Office of the Regional Administrator. Hand-delivered
documents to be filed with a State Office shall be submitted to the
office of the chief executive officer of such office.
(d) Documents received after regular business hours are deemed filed
on the next regular business day. Regular business hours for the DOE
National Office are 8 a.m. to 4:30 p.m. Regular business hours for a
Regional Office or a State Office shall be established independently by
each.
Sec. 205.5 Computation of time.
(a) Days. (1) Except as provided in paragraph (b) of this section,
in computing any period of time prescribed or allowed by these
regulations or by an order of the DOE or a State Office, the day of the
act, event, or default from which the designated period of time begins
to run is not to be included. The last day of the period so computed is
to be included unless it is a Saturday, Sunday, or Federal legal holiday
in which event the period runs until the end of the next day that is
neither a Saturday, Sunday, nor a Federal legal holiday.
(2) Saturdays, Sundays or intervening Federal legal holidays shall
be excluded from the computation of time when the period of time allowed
or prescribed is 7 days or less.
(b) Hours. If the period of time prescribed in an order issued by
the DOE or a State Office is stated in hours rather than days, the
period of time shall begin to run upon actual notice of such order,
whether by verbal or written communication, to the person directly
affected, and shall run without interruption, unless otherwise provided
in the order, or unless the order is stayed, modified, suspended or
rescinded. When a written order is transmitted by verbal communication,
the written order shall be served as soon thereafter as is feasible.
(c) Additional time after service by mail. Whenever a person is
required to perform an act, to cease and desist therefrom, or to
initiate a proceeding under this part within a prescribed period of time
after issuance to such person of an order, notice, interpretation or
other document and the order, notice, interpretation or other document
is served by mail, 3 days shall be added to the prescribed period.
Sec. 205.6 Extension of time.
When a document is required to be filed within a prescribed time, an
extension of time to file may be granted by the office with which the
document is required to be filed upon good cause shown.
Sec. 205.7 Service.
(a) All orders, notices, interpretations or other documents required
to be served under this part shall be served personally or by registered
or certified mail or by regular United States mail (only when service is
effected by the DOE or a State Office), except as otherwise provided.
(b) Service upon a person's duly authorized representative shall
constitute service upon that person.
(c) Service by registered or certified mail is complete upon
mailing. Official United States Postal Service receipts from such
registered or certified mailing shall constitute prima facie evidence of
service.
Sec. 205.8 Subpoenas, special report orders, oaths, witnesses.
(a) In this section the following terms have the definitions
indicated unless otherwise provided.
(1) ``DOE Official'' means the Secretary of the Department of
Energy, the Administrator of the Economic Regulatory Administration, the
Administrator of Energy Information Administration, the General Counsel
of the Department of Energy, the Special Counsel for Compliance, the
Assistant Administrator for Enforcement, the Director of the Office of
Hearings and Appeals, or the duly authorized delegate of any of the
foregoing officials.
[[Page 11]]
(2) ``SRO'' means a Special Report Order issued pursuant to
paragraph (b) of this section.
(b) (1) In accordance with the provisions of this section and as
otherwise authorized by law, a DOE Official may sign, issue and serve
subpoenas; administer oaths and affirmations; take sworn testimony;
compel attendance of and sequester witnesses; control dissemination of
any record of testimony taken pursuant to this section; subpoena and
reproduce books, papers, correspondence, memoranda, contracts
agreements, or other relevant records or tangible evidence including,
but not limited to, information retained in computerized or other
automated systems in possession of the subpoenaed person. Unless
otherwise provided by subpart O, the provisions of this section apply to
subpoenas issued by the office of Hearings and Appeals with respect to
matters in proceedings before it.
(2) A DOE Official may issue a Special Report Order requiring any
person subject to the jurisdiction of the ERA to file a special report
providing information relating to DOE regulations, including but not
limited to written answers to specific questions. The SRO may be in
addition to any other reports required by this chapter.
(3) The DOE Official who issues a subpoena or SRO pursuant to this
section, for good cause shown, may extend the time prescribed for
compliance with the subpoena or SRO and negotiate and approve the terms
of satisfactory compliance.
(4) Prior to the time specified for compliance, but in no event more
than 10 days after the date of service of the subpoena or SRO, the
person upon whom the document was served may file a request for review
of the subpoena or SRO with the DOE Official who issued the document.
The DOE Official then shall forward the request to his supervisor who
shall provide notice of receipt to the person requesting review. The
supervisor or his designee may extend the time prescribed for compliance
with the subpoena or SRO and negotiate and approve the terms of
satisfactory compliance.
(5) If the subpoena or SRO is not modified or rescinded within 10
days of the date of the supervisor's notice of receipt, (i) the subpoena
or SRO shall be effective as issued; and (ii) the person upon whom the
document was served shall comply with the subpoena or SRO within 20 days
of the date of the supervisor's notice of receipt, unless otherwise
notified in writing by the supervisor or his designee.
(6) There is no administrative appeal of a subpoena or SRO.
(c) (1) A subpoena or SRO shall be served upon a person named in the
document by delivering a copy of the document to the person named.
(2) Delivery of a copy of the document to a natural person may be
made by:
(i) Handing it to the person;
(ii) Leaving it at the person's office with the person in charge of
the office;
(iii) Leaving it at the person's dwelling or usual place of abode
with a person of suitable age and discretion who resides there;
(iv) Mailing it to the person by registered or certified mail, at
his last known address; or
(v) Any method that provides the person with actual notice prior to
the return date of the document.
(3) Delivery of a copy of the document to a person who is not a
natural person may be made by:
(i) Handing it to a registered agent of the person;
(ii) Handing it to any officer, director, or agent in charge of any
office of such person;
(iii) Mailing it to the last known address of any registered agent,
officer, director, or agent in charge of any office of the person by
registered or certified mail, or
(iv) Any method that provides any registered agent, officer,
director, or agent in charge of any office of the person with actual
notice of the document prior to the return date of the document.
(d)(1) A witness subpoenaed by the DOE shall be paid the same fees
and mileage as paid to a witness in the district courts of the United
States.
(2) If in the course of a proceeding conducted pursuant to subpart M
or O, a subpoena is issued at the request of a person other than an
officer or agency of the United States, the witness fees
[[Page 12]]
and mileage shall be paid by the person who requested the subpoena.
However, at the request of the person, the witness fees and mileage
shall be paid by the DOE if the person shows:
(i) The presence of the subpoenaed witness will materially advance
the proceeding; and
(ii) The person who requested that the subpoena be issued would
suffer a serious hardship if required to pay the witness fees and
mileage. The DOE Official issuing the subpoena shall make the
determination required by this subsection.
(e) If any person upon whom a subpoena or SRO is served pursuant to
this section, refuses or fails to comply with any provision of the
subpoena or SRO, an action may be commenced in the United States
District Court to enforce the subpoena or SRO.
(f) (1) Documents produced in response to a subpoena shall be
accompanied by the sworn certification, under penalty of perjury, of the
person to whom the subpoena was directed or his authorized agent that
(i) a diligent search has been made for each document responsive to the
subpoena, and (ii) to the best of his knowledge, information, and belief
each document responsive to the subpoena is being produced unless
withheld on the grounds of privilege pursuant to paragraph (g) of this
section.
(2) Any information furnished in response to an SRO shall be
accompanied by the sworn certification under penalty of perjury of the
person to whom it was directed or his authorized agent who actually
provides the information that (i) a diligent effort has been made to
provide all information required by the SRO, and (ii) all information
furnished is true, complete, and correct unless withheld on grounds of
privilege pursuant to paragraph (g) of this section.
(3) If any document responsive to a subpoena is not produced or any
information required by an SRO is not furnished, the certification shall
include a statement setting forth every reason for failing to comply
with the subpoena or SRO.
(g) If a person to whom a subpoena or SRO is directed withholds any
document or information because of a claim of attorney-client or other
privilege, the person submitting the certification required by paragraph
(f) of this section also shall submit a written list of the documents or
the information withheld indicating a description of 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 the person whose privilege is being asserted.
(h)(1) If testimony is taken pursuant to a subpoena, the DOE
Official shall determine whether the testimony shall be recorded and the
means by which the testimony is recorded.
(2) A witness whose testimony is recorded may procure a copy of his
testimony by making a written request for a copy and paying the
appropriate fees. However, the DOE official may deny the request for
good cause. Upon proper identification, any witness or his attorney has
the right to inspect the official transcript of the witness' own
testimony.
(i) The DOE Official may sequester any person subpoenaed to furnish
documents or give testimony. Unless permitted by the DOE Official,
neither a witness nor his attorney shall be present during the
examination of any other witnesses.
(j)(1) Any witness whose testimony is taken may be accompanied,
represented and advised by his attorney as follows:
(i) Upon the initiative of the attorney or witness, the attorney may
advise his client, in confidence, with respect to the question asked his
client, and if the witness refuses to answer any question, the witness
or his attorney is required to briefly state the legal grounds for such
refusal; and
(ii) If the witness claims a privilege to refuse to answer a
question on the grounds of self-incrimination, the witness must assert
the privilege personally.
(k) The DOE Official shall take all necessary action to regulate the
course of testimony and to avoid delay and
[[Page 13]]
prevent or restrain contemptuous or obstructionist conduct or
contemptuous language. DOE may take actions as the circumstances may
warrant in regard to any instances where any attorney refuses to comply
with directions or provisions of this section.
(Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended,
Pub. L. 94-163, and Pub. L. 94-385; Federal Energy Administration Act of
1974, Pub. L. 93-275, as amended, Pub. L. 94-332, Pub. L. 94-385, Pub.
L. 95-70, and Pub. L. 95-91; Energy Supply and Environmental
Coordination Act of 1974, Pub. L. 93-319, as amended; Energy Policy and
Conservation Act, Pub. L. 94-163, as amended, Pub. L. 94-385, and Pub.
L. 95-70; Department of Energy Organization Act, Pub. L. 95-91; E.O.
11790, 39 FR 23185; E.O. 12009, 42 FR 46267)
[44 FR 23201, Apr. 19, 1979]
Sec. 205.9 General filing requirements.
(a) Purpose and scope. The provisions of this section shall apply to
all documents required or permitted to be filed with the DOE or with a
State Office.
(b) Signing. All applications, petitions, requests, appeals,
comments or any other documents that are required to be signed, shall be
signed by the person filing the document or a duly authorized
representative. Any application, appeal, petition, request, complaint or
other document filed by a duly authorized representative shall contain a
statement by such person certifying that he is a duly authorized
representative, unless an DOE form other wise requires. (A false
certification is unlawful under the provisions of 18 U.S.C. 1001
(1970)).
(c) Labeling. An application, petition, or other request for action
by the DOE or a State Office should be clearly labeled according to the
nature of the action involved (e.g., ``Application for Assignment'')
both on the document and on the outside of the envelope in which the
document is transmitted.
(d) Obligation to supply information. A person who files an
application, petition, complaint, appeal or other request for action is
under a continuing obligation during the proceeding to provide the DOE
or a State Office with any new or newly discovered information that is
relevant to that proceeding. Such information includes, but is not
limited to, information regarding any other application, petition,
complaint, appeal or request for action that is subsequently filed by
that person with any DOE office or State Office.
(e) The same or related matters. A person who files an application,
petition, complaint, appeal or other request for action by the DOE or a
State Office shall state whether, to the best knowledge of that person,
the same or related issue, act or transaction has been or presently is
being considered or investigated by any DOE office, other Federal
agency, department or instrumentality; or by a State Office, a state or
municipal agency or court; or by any law enforcement agency; including,
but not limited to, a consideration or investigation in connection with
any proceeding described in this part. In addition, the person shall
state whether contact has been made by the person or one acting on his
behalf with any person who is employed by the DOE or any State Office
with regard to the same issue, act or transaction or a related issue,
act or transaction arising out of the same factual situation; the name
of the person contacted; whether the contact was verbal or in writing;
the nature and substance of the contact; and the date or dates of the
contact.
(f) Request for confidential treatment. (1) If any person filing a
document with the DOE or a State Office claims that some or all the
information contained in the document is exempt from the mandatory
public disclosure requirements of the Freedom of Information Act (5
U.S.C. 552 (1970)), is information referred to in 18 U.S.C. 1905 (1970),
or is otherwise exempt by law from public disclosure, and if such person
requests the DOE or a State Office not to disclose such information,
such person shall file together with the document a second copy of the
document from which has been deleted the information for which such
person wishes to claim confidential treatment. The person shall indicate
in the original document that it is confidential or contains
confidential information and may file a statement specifying the
justification for non-disclosure of the information for which
confidential treatment is claimed. If the person states that the
[[Page 14]]
information comes within the exception in 5 U.S.C. 552(b)(4) for trade
secrets and commercial or financial information, such person shall
include a statement specifying why such information is privileged or
confidential. If the person filing a document does not submit a second
copy of the document with the confidential information deleted, the DOE
or a State Office may assume that there is no objection to public
disclosure of the document in its entirety.
(2) The DOE or a State Office retains the right to make its own
determination with regard to any claim of confidentiality. Notice of the
decision by the DOE or a State Office to deny such claim, in whole or in
part, and an opportunity to respond shall be given to a person claiming
confidentiality of information no less than five days prior to its
public disclosure.
(g) Separate applications, petitions or requests. Each application,
petition or request for DOE action shall be submitted as a separate
document, even if the applications, petitions, or requests deal with the
same or a related issue, act or transaction, or are submitted in
connection with the same proceeding.
Sec. 205.10 Effective date of orders.
Any order issued by the DOE or a State Office under this chapter is
effective as against all persons having actual notice thereof upon
issuance, in accordance with its terms, unless and until it is stayed,
modified, suspended, or rescinded. An order is deemed to be issued on
the date, as specified in the order, on which it is signed by an
authorized representative of the DOE or a State Office, unless the order
provides otherwise.
Sec. 205.11 Order of precedence.
(a) If there is any conflict or inconsistency between the provisions
of this part and any other provision of this chapter, the provisions of
this part shall control with respect to procedure.
(b) Notwithstanding paragraph (a) of this section, subpart I of part
212 of this chapter shall control with respect to prenotification and
reporting and subpart J of part 212 of this chapter shall control with
respect to accounting and financial reporting requirements.
Sec. 205.12 Addresses for filing documents with the DOE.
(a) All applications, requests, petitions, appeals, reports, DOE or
FEO forms, written communications and other documents to be submitted to
or filed with the DOE National Office in accordance with this chapter
shall be addressed as provided in this section. The DOE National Office
has facilities for the receipt of transmissions via TWX and FAX. The FAX
is a 3M full duplex 4 or 6 minute (automatic) machine.
------------------------------------------------------------------------
FAX Numbers TWX Numbers
------------------------------------------------------------------------
(202) 254-6175............................ (701) 822-9454
(202) 254-6461............................ (701) 822-9459
------------------------------------------------------------------------
(1) Documents for which a specific address and/or code number is not
provided in accordance with paragraphs (a)(2) through (7) of this
section, shall be addressed as follows: Department of Energy, Attn:
(name of person to receive document, if known, or subject), Washington,
DC 20461.
(2) Documents to be filed with the Office of Exceptions and Appeals,
as provided in this part or otherwise, shall be addressed as follows.
Office of Exceptions and Appeals, Department of Energy, Attn: (name of
person to receive document, if known, and/or labeling as specified in
Sec. 205.9(c)), Washington, DC 20461.
(3) Documents to be filed with the Office of General Counsel, as
provided in this part or otherwise, shall be addressed as follows:
Office of the General Counsel, U.S. Department of Energy, Attn: (name of
person to receive document, if known, and labeling as specified in Sec.
205.9(c)), 1000 Independence Avenue, Washington, DC 20585.
(4) Documents to be filed with the Office of Private Grievances and
Redress, as provided in this part or otherwise, shall be addressed as
follows: Office of Private Grievances and Redress, Department of Energy,
Attn: (name of person to receive document, if known and/or labeling as
specified in Sec. 205.9(c)), Washington, DC 20461.
(5) All other documents filed, except those concerning price (see
paragraph
[[Page 15]]
(a)(6) of this section), those designated as DOE or FEO forms (see
paragraph (a)(7) of this section), and ``Surplus Product Reports'' (see
paragraph (a)(8) of this section), but including those pertaining to
compliance and allocation (adjustment and assignment) of allocated
products, are to be identified by one of the code numbers stated below
and addressed as follows: Department of Energy, Code__, labeling as
specified in Sec. 205.9(c), Washington, DC 20461.
Code Numbers
------------------------------------------------------------------------
Code
------------------------------------------------------------------------
Product:
Crude oil................................................. 10
Naphtha and gas oil....................................... 15
Propane, butane and natural gasoline...................... 25
Other products............................................ 30
Bunker fuel............................................... 40
Residual fuel (nonutility)................................ 50
Motor gasoline............................................ 60
Middle distillates........................................ 70
Aviation fuels............................................ 80
Submissions by specific entities:
Electric utilities........................................ 45
Department of Defense..................................... 55
------------------------------------------------------------------------
(6) Documents pertaining to the price of covered products, except
those to be submitted to other offices as provided in this part, shall
be addressed to the Department of Energy, Code 1000, Attn: (name of
person to receive document, if known, and/or labeling as specified in
Sec. 205.9(c)), Washington, DC 20461.
(7) Documents designated as DOE or FEO forms shall be submitted in
accordance with the instructions stated in the form.
(8) ``Surplus Product Reports'' shall be submitted to the Department
of Energy, Post Office Box 19407, Washington, DC 20036.
(9) Documents to be filed with the Director of Oil Imports, as
provided in this part or otherwise, shall be addressed as follows:
Director of Oil Imports, Department of Energy, P.O. Box 7414,
Washington, DC 20044.
(10) Petitions for rulemaking to be filed with the Economic
Regulatory Administration National Office shall be addressed as follows:
Economic Regulatory Administration, Attn: Assistant Administrator for
Regulations and Emergency Planning (labeled as ``Petition for
Rulemaking,'') 2000 M Street, N.W., Washington, DC 20461.
(b) All reports, applications, requests, notices, complaints,
written communications and other documents to be submitted to or filed
with an DOE Regional Office in accordance with this chapter shall be
directed to one of the following addresses, as appropriate:
Region 1
Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont;
Regional Office, Department of Energy, 150 Causeway Street, Boston,
Massachusetts 02114.
Region 2
New Jersey, New York, Puerto Rico, Virgin Islands; Regional Office,
Department of Energy, 26 Federal Plaza, New York, New York 10007.
Region 3
Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West
Virginia; Regional Office, Department of Energy, Federal Office
Building, 1421 Cherry Street, Philadelphia, Pennsylvania 19102.
Region 4
Alabama, Canal Zone, Florida, Georgia, Kentucky, Mississippi, North
Carolina, South Carolina; Regional Office, Department of Energy, 1655
Peachtree Street NW., Atlanta, Georgia 30309.
Region 5
Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin; Regional
Office, Department of Energy, 175 West Jackson Street, Chicago, Illinois
60604.
Region 6
Arkansas, Louisiana, New Mexico, Oklahoma, Texas; Regional Office,
Department of Energy, 212 North Saint Paul Street, Dallas, Texas 75201.
Region 7
Iowa, Kansas, Missouri, Nebraska; Regional Office, Department of Energy,
Federal Office Building, P.O. Box 15000, 112 East 12th Street, Kansas
City, Missouri 64106.
Region 8
Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming; Regional
Office, Department of Energy, Post Office Box 26247, Belmar Branch,
Denver, Colorado 80226.
Region 9
American Samoa, Arizona, California, Guam, Hawaii, Nevada, Trust
Territory of the Pacific Islands; Regional Office, Department
[[Page 16]]
of Energy, 111 Pine Street, San Francisco, California 94111.
Region 10
Alaska, Idaho, Oregon, Washington; Regional Office, Department of
Energy, Federal Office Building, 909 First Avenue, Room 3098, Seattle,
Washington 98104.
(Emergency Petroleum Allocation Act of 1973, 15 U.S.C. 751 et seq., Pub.
L. 93-159, as amended, Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133,
Pub. L. 94-163, and Pub. L. 94-385; Federal Energy Administration Act of
1974, 15 U.S.C. 787 et seq., Pub. L. 93-275, as amended, Pub. L. 94-332,
Pub. L. 94-385, Pub. L. 95-70, and Pub. L. 95-91; Energy Policy and
Conservation Act, 42 U.S.C. 6201 et seq., Pub. L. 94-163, as amended,
Pub. L. 94-385, and Pub. L. 95-70; Department of Energy Organization
Act, 42 U.S.C. 7101 et seq., Pub. L. 95-91; E.O. 11790, 39 FR 23185;
E.O. 12009, 42 FR 46267)
[39 FR 35489, Oct. 1, 1974, as amended at 40 FR 36555, Aug. 21, 1975; 45
FR 37684, June 4, 1980]
Sec. 205.13 Where to file.
(a) Except as otherwise specifically provided in other subparts of
this part, all documents to be filed with the ERA pursuant to this part
shall be filed with the appropriate ERA Regional Office (unless
otherwise specified in part 211 of this chapter), except that all
documents shall be filed with the ERA National Office that relate to:
(1) The allocation and pricing of crude oil pursuant to subpart C of
part 211 and part 212 of this chapter;
(2) Refinery yield controls pursuant to subpart C of part 211 of
this chapter;
(3) The pricing of propane, butane and natural gasoline pursuant to
part 212 of this chapter and the allocation of butane and natural
gasoline pursuant to part 211 of this chapter;
(4) The allocation and pricing of middle distillate fuels pursuant
to subpart G of part 211 and part 212 of this chapter, filed by electric
utilities;
(5) The allocation and pricing of aviation fuel pursuant to subpart
H of part 211 and part 212 of this chapter, filed by civil air carriers
(except air taxi/commercial operators);
(6) The allocation and pricing of residual fuel oil pursuant to
subpart I of part 211 and part 212 of this chapter, filed by electric
utilities;
(7) The allocation and pricing of naphtha and gas oil pursuant to
subpart J of part 211 and part 212 of this chapter;
(8) The allocation and pricing of other products pursuant to subpart
K of part 211 and part 212 of this chapter;
(9) An application for an exemption under subpart E of this part;
requests for a rulemaking proceeding under subpart L of this part or for
the issuance of a ruling under subpart K of this part; and petitions to
the Office of Private Grievances and Redress under subpart R of this
part;
(10) The pricing of products pursuant to part 212 of this chapter,
filed by a refiner; and
(11) The allocation of crude oil and other allocated products to
meet Department of Defense needs pursuant to part 211 of this chapter.
(12) The allocation of crude oil and other allocated products to be
utilized as feedstock in a synthetic natural gas plant, pursuant to
Sec. 211.29.
(13) Allocations, fee-paid and fee-exempt licenses issued pursuant
to part 213 of this chapter.
(b) Applications by end-users and wholesale purchasers for an
allocation under the state set-aside system in accordance with Sec.
211.17 shall be filed with the appropriate State Office.
(c) Applications to a State Office or a DOE Regional Office shall be
directed to the office located in the state or region in which the
allocated product will be physically delivered. An applicant doing
business in more than one state or region must apply separately to each
State or region in which a product will be physically delivered, unless
the State Offices or Regional Offices involved agree otherwise.
[39 FR 35489, Oct. 1, 1974, as amended at 39 FR 36571, Oct. 11, 1974; 39
FR 39022, Nov. 5, 1974; 40 FR 28446, July 7, 1975; 40 FR 36555, Aug. 21,
1975; 44 FR 60648, Oct. 19, 1979]
Sec. 205.14 Ratification of prior directives, orders, and actions.
All interpretations, orders, notices of probable violation or other
directives issued, all proceedings initiated, and all other actions
taken in accordance with part 205 as it existed prior to the effective
date of this amendment, are hereby confirmed and ratified, and shall
remain in full force and effect as if issued under this amended part
205, unless or until they are altered,
[[Page 17]]
amended, modified or rescinded in accordance with the provisions of this
part.
Sec. 205.15 Public docket room.
There shall be established at the DOE National Office, 12th and
Pennsylvania Avenue, NW., Washington, DC, a public docket room in which
shall be made available for public inspection and copying:
(a) A list of all persons who have applied for an exception, an
exemption, or an appeal, and a digest of each application;
(b) Each decision and statement setting forth the relevant facts and
legal basis of an order, with confidential information deleted, issued
in response to an application for an exception or exemption or at the
conclusion of an appeal;
(c) The comments received during each rulemaking proceeding, with a
verbatim transcript of the public hearing if such a public hearing was
held; and
(d) Any other information required by statute to be made available
for public inspection and copying, and any information that the DOE
determines should be made available to the public.
Subparts B-E [Reserved]
Subpart F_Interpretation
Sec. 205.80 Purpose and scope.
(a) This subpart establishes the procedures for the filing of a
formal request for an interpretation and for the consideration of such
request. Responses, which may include verbal or written responses to
general inquiries or to other than formal written requests for
interpretation filed with the General Counsel or his delegate or a
Regional Counsel, are not interpretations and merely provide general
information.
(b) A request for interpretation that includes, or could be
construed to include an application for an exception or an exemption may
be treated solely as a request for interpretation and processed as such.
(Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended,
Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133, Pub. L. 94-163, and Pub.
L. 94-385, Federal Energy Administration Act of 1974, Pub. L. 93-275, as
amended, Pub. L. 94-385, Energy Policy and Conservation Act, Pub. L. 94-
163, as amended, Pub. L. 94-385; E.O. 11790, 39 FR 23185; Department of
Energy Organization Act, Pub. L. 95-91; E.O. 12009, 42 FR 46267)
[39 FR 35489, Oct. 1, 1974, as amended at 43 FR 14437, Apr. 6, 1978]
Sec. 205.81 What to file.
(a) A person filing under this subpart shall file a ``Request for
Interpretation,'' which should be clearly labeled as such both on the
request and on the outside of the envelope in which the request is
transmitted, and shall be in writing and signed by the person filing the
request. The person filing the request shall comply with the general
filing requirements stated in Sec. 205.9 in addition to the
requirements stated in this subpart.
(b) If the person filing the request wishes to claim confidential
treatment for any information contained in the request or other
documents submitted under this subpart, the procedures set out in Sec.
205.9(f) shall apply.
Sec. 205.82 Where to file.
A request for interpretation shall be filed with the General Counsel
or his delegate or with the appropriate Regional Counsel at the address
provided in Sec. 205.12.
(Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended,
Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133, Pub. L. 94-163, and Pub.
L. 94-385; Federal Energy Administration Act of 1974, Pub. L. 93-275, as
amended, Pub. L. 94-385; Energy Policy and Conservation Act, Pub. L. 94-
163, as amended, Pub. L. 94-385; E.O. 11790, 39 FR 23185; Department of
Energy Organization Act, Pub. L. 95-91; E.O. 12009, 42 FR 46267)
[39 FR 35489, Oct. 1, 1974, as amended at 43 FR 14437, Apr. 6, 1978; 43
FR 17803, Apr. 26, 1978]
Sec. 205.83 Contents.
(a) The request shall contain a full and complete statement of all
relevant facts pertaining to the circumstances, act or transaction that
is the subject of the request and to the DOE action
[[Page 18]]
sought. Such facts shall include the names and addresses of all affected
persons (if reasonably ascertainable) and a full discussion of the
pertinent provisions and relevant facts contained in the documents
submitted with the request. Copies of all relevant contracts,
agreements, leases, instruments, and other documents shall be submitted
with the request. When the request pertains to only one step of a larger
integrated transaction, the facts, circumstances, and other relevant
information pertaining to the entire transaction must be submitted.
(b) The request for interpretation shall include a discussion of all
relevant authorities, including, but not limited to, DOE rulings,
regulations, interpretations and decisions on appeals and exceptions
relied upon to support the particular interpretation sought therein.
Sec. 205.84 DOE evaluation.
(a) Processing. (1) The DOE may initiate an investigation of any
statement in a request and utilize in its evaluation any relevant facts
obtained by such investigation. The DOE may accept submissions from
third persons relevant to any request for interpretation provided that
the person making the request is afforded an opportunity to respond to
all third person submissions. In evaluating a request for
interpretation, the DOE may consider any other source of information.
The DOE on its own initiative may convene a conference, if, in its
discretion, it considers that such conference will advance its
evaluation of the request.
(2) The DOE shall issue its interpretation on the basis of the
information provided in the request, unless that information is
supplemented by other information brought to the attention of the
General Counsel or a Regional Counsel during the proceeding. The
interpretation shall, therefore, depend for its authority on the
accuracy of the factual statement and may be relied upon only to the
extent that the facts of the actual situation correspond to those upon
which the interpretation was based.
(3) If the DOE determines that there is insufficient information
upon which to base a decision and if upon request additional information
is not submitted by the person requesting the interpretation, the DOE
may refuse to issue an interpretation.
(b) Criteria. (1) The DOE shall base an interpretation on the FEA
and EPAA and the regulations and published rulings of the DOE as applied
to the specific factual situation.
(2) The DOE shall take into consideration previously issued
interpretations dealing with the same or a related issue.
Sec. 205.85 Decision and effect.
(a) An interpretation may be issued after consideration of the
request for interpretation and other relevant information received or
obtained during the proceeding.
(b) The interpretation shall contain a statement of the information
upon which it is based and a legal analysis of and conclusions regarding
the application of rulings, regulations and other precedent to the
situation presented in the request.
(c) Only those persons to whom an interpretation is specifically
addressed and other persons upon whom the DOE serves the interpretation
and who are directly involved in the same transaction or act may rely
upon it. No person entitled to rely upon an interpretation shall be
subject to civil or criminal penalties stated in subpart P of this part
for any act taken in reliance upon the interpretation, notwithstanding
that the interpretation shall thereafter be declared by judicial or
other competent authority to be invalid.
(d) An interpretation may be rescinded or modified at any time.
Rescission or modification may be effected by notifying persons entitled
to rely on the interpretation that it is rescinded or modified. This
notification shall include a statement of the reasons for the recision
or modification and, in the case of a modification, a restatement of the
interpretation as modified.
(e) An interpretation is modified by a subsequent amendment to the
regulations or ruling to the extent that it is inconsistent with the
amended regulation or ruling.
[[Page 19]]
(f)(1) Any person aggrieved by an interpretation may submit a
petition for reconsideration to the General Counsel within 30 days of
service of the interpretation from which the reconsideration is sought.
There has not been an exhaustion of administrative remedies until a
period of 30 days from the date of service of the interpretation has
elapsed without receipt by the General Counsel of a petition for
reconsideration or, if a petition for reconsideration of the
interpretation has been filed in a timely manner, until that petition
has been acted on by the General Counsel. However, a petition to which
the General Counsel does not respond within 60 days of the date of
receipt thereof, or within such extended time as the General Counsel may
prescribe by written notice to the petitioner concerned within that 60
day period, shall be considered denied.
(2) A petition for reconsideration may be summarily denied if--
(i) It is not filed in a timely manner, unless good cause is shown;
or
(ii) It is defective on its face for failure to state, and to
present facts and legal argument in support thereof, that the
interpretation was erroneous in fact or in law, or that it was arbitrary
or capricious.
(3) The General Counsel may deny any petition for reconsideration if
the petitioner does not establish that--
(i) The petition was filed by a person aggrieved by an
interpretation;
(ii) The interpretation was erroneous in fact or in law; or
(iii) The interpretation was arbitrary or capricious. The denial of
a petition shall be a final order of which the petitioner may seek
judicial review.
(Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended,
Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133, Pub. L. 94-163, and Pub.
L. 94-385, Federal Energy Administration Act of 1974, Pub. L. 93-275, as
amended, Pub. L. 94-385, Energy Policy and Conservation Act, Pub. L. 94-
163, as amended, Pub. L. 94-385; E.O. 11790, 39 FR 23185; Department of
Energy Organization Act, Pub. L. 95-91; E.O. 12009, 42 FR 46267)
[39 FR 35489, Oct. 1, 1974, as amended at 43 FR 14437, Apr. 6, 1978]
Sec. 205.86 Appeal.
There is no administrative appeal of an interpretation.
(Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended,
Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133, Pub. L. 94-163, and Pub.
L. 94-385, Federal Energy Administration Act of 1974, Pub. L. 93-275, as
amended, Pub. L. 94-385, Energy Policy and Conservation Act, Pub. L. 94-
163, as amended, Pub. L. 94-385; E.O. 11790, 39 FR 23185; Department of
Energy Organization Act, Pub. L. 95-91; E.O. 12009, 42 FR 46267)
[43 FR 14437, Apr. 6, 1978]
Subparts G-J [Reserved]
Subpart K_Rulings
Sec. 205.150 Purpose and scope.
This subpart establishes the criteria for the issuance of
interpretative rulings by the General Counsel. All rulings shall be
published in the Federal Register. Any person is entitled to rely upon
such ruling, to the extent provided in this subpart.
Sec. 205.151 Criteria for issuance.
(a) A ruling may be issued, in the discretion of the General
Counsel, whenever there have been a substantial number of inquiries with
regard to similar factual situations or a particular section of the
regulations.
(b) The General Counsel may issue a ruling whenever it is determined
that it will be of assistance to the public in applying the regulations
to a specific situation.
Sec. 205.152 Modification or rescission.
(a) A ruling may be modified or rescinded by:
(1) Publication of the modification or rescission in the Federal
Register; or
(2) A rulemaking proceeding in accordance with subpart L of this
part.
(b) Unless and until a ruling is modified or rescinded as provided
in paragraph (a) of this section, no person shall be subject to the
sanctions or penalties stated in subpart P of this part for actions
taken in reliance upon the ruling, notwithstanding that the ruling shall
thereafter be declared by judicial or other competent authority to be
invalid. Upon such declaration,
[[Page 20]]
no person shall be entitled to rely upon the ruling.
Sec. 205.153 Comments.
A written comment on or objection to a published ruling may be filed
at any time with the General Counsel at the address specified in Sec.
205.12.
Sec. 205.154 Appeal.
There is no administrative appeal of a ruling.
Subpart L [Reserved]
Subpart M_Conferences, Hearings, and Public Hearings
Sec. 205.170 Purpose and scope.
This subpart establishes the procedures for requesting and
conducting a DOE conference, hearing, or public hearing. Such
proceedings shall be convened in the discretion of the DOE, consistent
with the requirements of the FEAA.
Sec. 205.171 Conferences.
(a) The DOE in its discretion may direct that a conference be
convened, on its own initiative or upon request by a person, when it
appears that such conference will materially advance the proceeding. The
determination as to who may attend a conference convened under this
subpart shall be in the discretion of the DOE, but a conference will
usually not be open to the public.
(b) A conference may be requested in connection with any proceeding
of the DOE by any person who might be aggrieved by that proceeding. The
request may be made in writing or verbally, but must include a specific
showing as to why such conference will materially advance the
proceeding. The request shall be addressed to the DOE office that is
conducting the proceeding.
(c) A conference may only be convened after actual notice of the
time, place, and nature of the conference is provided to the person who
requested the conference.
(d) When a conference is convened in accordance with this section,
each person may present views as to the issue or issues involved.
Documentary evidence may be presented at the conference, but will be
treated as if submitted in the regular course of the proceedings. A
transcript of the conference will not usually be prepared. However, the
DOE in its discretion may have a verbatim transcript prepared.
(e) Because a conference is solely for the exchange of views
incident to a proceeding, there will be no formal reports or findings
unless the DOE in its discretion determines that such would be
advisable.
Sec. 205.172 Hearings.
(a) The DOE in its discretion may direct that a hearing be convened
on its own initiative or upon request by a person, when it appears that
such hearing will materially advance the proceedings. The determination
as to who may attend a hearing convened under this subpart shall be in
the discretion of DOE, but a hearing will usually not be open to the
public. Where the hearing involves a matter arising under part 213, the
Director of Oil Imports shall be notified as to its time and place, in
order that he or his representative may present views as to the issue or
issues involved.
(b) A hearing may only be requested in connection with an
application for an exception or an appeal. Such request may be by the
applicant, appellant, or any other person who might be aggrieved by the
DOE action sought. The request shall be in writing and shall include a
specific showing as to why such hearing will materially advance the
proceeding. The request shall be addressed to the DOE office that is
considering the application for an exception or the appeal.
(c) The DOE will designate an agency official to conduct the
hearing, and will specify the time and place for the hearing.
(d) A hearing may only be convened after actual notice of the time,
place, and nature of the hearing is provided both to the applicant or
appellant and to any other person readily identifiable by the DOE as one
who will be aggrieved by the DOE action involved. The notice shall
include, as appropriate:
[[Page 21]]
(1) A statement that such person may participate in the hearing; or
(2) A statement that such person may request a separate conference
or hearing regarding the application or appeal.
(e) When a hearing is convened in accordance with this section, each
person may present views as to the issue or issues involved. Documentary
evidence may be presented at the hearing, but will be treated as if
submitted in the regular course of the proceedings. A transcript of the
hearing will not usually be prepared. However, the DOE in its discretion
may have a verbatim transcript prepared.
(f) The official conducting the hearing may administer oaths and
affirmations, rule on the presentation of information, receive relevant
information, dispose of procedural requests, determine the format of the
hearing, and otherwise regulate the course of the hearing.
(g) Because a hearing is solely for the exchange of views incident
to a proceeding, there will be no formal reports or findings unless the
DOE in its discretion determines that such would be advisable.
[39 FR 35489, Oct. 1, 1974, as amended at 40 FR 36557, Aug. 21, 1975]
Sec. 205.173 Public hearings.
(a) A public hearing shall be convened incident to a rulemaking:
(1) When the proposed rule or regulation is likely to have a
substantial impact on the Nation's economy or large numbers of
individuals or businesses; or
(2) When the DOE determines that a public hearing would materially
advance the consideration of the issue. A public hearing may be
requested by any interested person in connection with a rulemaking
proceeding, but shall only be convened on the initiative of the DOE
unless otherwise required by statute.
(b) A public hearing may be convened incident to any proceeding when
the DOE in its discretion determines that such public hearing would
materially advance the consideration of the issue.
(c) A public hearing may only be convened after publication of a
notice in the Federal Register, which shall include a statement of the
time, place, and nature of the public hearing.
(d) Interested persons may file a request to participate in the
public hearing in accordance with the instructions in the notice
published in the Federal Register. The request shall be in writing and
signed by the person making the request. It shall include a description
of the person's interest in the issue or issues involved and of the
anticipated content of the presentation. It shall also contain a
statement explaining why the person would be an appropriate spokesperson
for the particular view expressed.
(e) The DOE shall appoint a presiding officer to conduct the public
hearing. An agenda shall be prepared that shall provide, to the extent
practicable, for the presentation of all relevant views by competent
spokespersons.
(f) A verbatim transcript shall be made of the hearing. The
transcript, together with any written comments submitted in the course
of the proceeding, shall be made available for public inspection and
copying in the public docket room, as provided in Sec. 205.15.
(g) The information presented at the public hearing, together with
the written comments submitted and other relevant information developed
during the course of the proceeding, shall provide the basis for the DOE
decision.
Subpart N [Reserved]
Subpart O_Notice of Probable Violation, Remedial Order, Notice of
Proposed Disallowance, and Order of Disallowance
Authority: Emergency Petroleum Allocation Act of 1973, Pub. L. 93-
159, as amended, Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133, Pub. L.
94-163, and Pub. L. 94-385, Federal Energy Administration Act of 1974,
Pub. L. 93-275, as amended, Pub. L. 94-332, Pub. L. 94-385, Pub. L. 95-
70, Pub. L. 95-91; Energy Policy and Conservation Act, Pub. L. 94-163,
as amended, Pub. L. 94-385, Pub. L. 95-70, Department of Energy
Organization Act, Pub. L. 95-91, as amended, Pub. L. 95-620; E.O. 11790,
39 FR 23185; E.O. 12009, 42 FR 46267.
Source: 44 FR 7924, Feb. 7, 1979, unless otherwise noted.
[[Page 22]]
Sec. 205.190 Purpose and scope.
(a) This subpart establishes the procedures for determining the
nature and extent of violations of the DOE regulations in parts 210,
211, and 212 and the procedures for issuance of a Notice of Probable
Violation, a Proposed Remedial Order, a Remedial Order, an Interim
Remedial Order for Immediate Compliance, a Remedial Order for Immediate
Compliance, a Notice of Probable Disallowance, a Proposed Order of
Disallowance, an Order of Disallowance, or a Consent Order. Nothing in
these regulations shall affect the authority of DOE enforcement
officials in coordination with the Department of Justice to initiate
appropriate civil or criminal enforcement actions in court at any time.
(b) When any report required by the ERA or any audit or
investigation discloses, or the ERA otherwise discovers, that there is
reason to believe a violation of any provision of this chapter, or any
order issued thereunder, has occurred, is continuing or is about to
occur, the ERA may conduct an inquiry to determine the nature and extent
of the violation. A Remedial Order or Order of Disallowance may be
issued thereafter by the Office of Hearings and Appeals. The ERA may
commence enforcement proceedings by serving a Notice of Probable
Violation, a Notice of Probable Disallowance, a Proposed Remedial Order,
a Proposed Order of Disallowance, or an Interim Remedial Order for
Immediate Compliance.
Sec. 205.191 [Reserved]
Sec. 205.192 Proposed remedial order.
(a) If the ERA finds, after the 30-day or other period authorized
for reply to the Notice of Probable Violation, that a violation has
occurred, is continuing, or is about to occur, it may issue a Proposed
Remedial Order, which shall set forth the relevant facts and law.
(b) The ERA may issue a Proposed Remedial Order at any time it finds
that a violation has occurred, is continuing, or is about to occur even
if it has not previously issued a Notice of Probable Violation.
(c) The ERA shall serve a copy of the Proposed Remedial Order upon
the person to whom it is directed. The ERA shall promptly publish a
notice in the Federal Register which states the person to whom the
Proposed Remedial Order is directed, his address, and the products,
dollar amounts, time period, and geographical area specified in the
Proposed Remedial Order. The notice shall indicate that a copy of the
Proposed Remedial Order with confidential information, if any, deleted
may be obtained from the ERA and that within 15 days after the date of
publication any aggrieved person may file a Notice of Objection with the
Office of Hearings and Appeals of accordance with Sec. 205.193. The ERA
shall mail copies of the Federal Register notice to all readily
identifiable persons who are likely to be aggrieved by issuance of the
Proposed Remedial Order as a final order.
(d) The Proposed Remedial Order shall set forth the proposed
findings of fact and conclusions of law upon which it is based. It shall
also include a discussion of the relevant authorities which support the
position asserted, including rules, regulations, rulings,
interpretations and previous decisions issued by DOE or its predecessor
agencies. The Proposed Remedial Order shall be accompanied by a
declaration executed by the DOE employee primarily knowledgeable about
the facts of the case stating that, to the best of declarant's knowledge
and belief, the findings of fact are correct.
(e) The ERA may amend or withdraw a Proposed Remedial Order at its
discretion prior to the date of service of a Statement of Objections in
that proceeding. The date of service of the amended documents shall be
considered the date of service of the Proposed Remedial Order in
calculating the time periods specified in this part 205.
Sec. 205.192A Burden of proof.
(a) In a Proposed Remedial Order proceeding the ERA has the burden
of establishing a prima facie case as to the validity of the findings of
fact and conclusions of law asserted therein. The ERA shall be deemed to
meet this burden by the service of a Proposed Remedial Order that meets
the requirements of Sec. 205.192(d) and any supplemental information
that may be made available under Sec. 205.193A.
[[Page 23]]
(b) Once a prima facie case has been established, a person who
objects to a finding of fact or conclusion of law in the Proposed
Remedial Order has the burden of going forward with the evidence.
Furthermore, the proponent of additional factual representations has the
burden of going forward with the evidence.
(c) Unless otherwise specified by the Director of the Office of
Hearings and Appeals or his designee, the proponent of an order or a
motion or additional factual representations has the ultimate burden of
persuasion.
Sec. 205.193 Notice of Objection.
(a) Within 15 days after publication of the notice of a Proposed
Remedial Order in the Federal Register any aggrieved person may file a
Notice of Objection to the Proposed Remedial Order with the Office of
Hearings and Appeals. The Notice shall be filed in duplicate, shall
briefly describe how the person would be aggrieved by issuance of the
Proposed Remedial Order as a final order and shall state the person's
intention to file a Statement of Objections. No confidential information
shall be included in a Notice of Objection. The DOE shall place one copy
of the Notice in the Office of Hearings and Appeals Public Docket Room.
(b) A person who fails to file a timely Notice of Objection shall be
deemed to have admitted the findings of fact and conclusions of law as
stated in the Proposed Remedial Order. If a Notice of Objection is not
filed as provided by paragraph (a) of this section, the Proposed
Remedial Order may be issued as a final order.
(c) A person who files a Notice of Objection shall on the same day
serve a copy of the Notice upon the person to whom the Proposed Remedial
Order is directed, the DOE Office that issued the Proposed Remedial
Order, and the DOE Assistant General Counsel for Administrative
Litigation.
(d) The Notice shall include a certification of compliance with the
provisions of this section, the names and addresses of each person
served with a copy of the Notice, and the date and manner of service.
(e) If no person files a timely Notice of Objection, ERA may request
the Office of Hearings and Appeals to issue the Proposed Remedial Order
as a final Remedial Order.
(f) In order to exhaust administrative remedies with respect to a
Remedial Order proceeding, a person must file a timely Notice of
Objection and Statement of Objections with the Office of Hearings and
Appeals.
Sec. 205.193A Submission of ERA supplemental information.
Within 20 days after service of a Notice of Objection to a Proposed
Remedial Order the ERA may serve, upon the person to whom the Proposed
Remedial Order was directed, supplemental information relating to the
calculations and determinations which support the findings of fact set
forth in the Proposed Remedial Order.
Sec. 205.194 Participants; official service list.
(a) Upon receipt of a Notice of Objection, the Office of Hearings
and Appeals shall publish a notice in the Federal Register which states
the person to whom the Proposed Remedial Order is directed, his address
and the products, dollar amounts, time period, and geographical area
specified in the Proposed Remedial Order. The notice shall state that
any person who wishes to participate in the proceeding must file an
appropriate request with the Office of Hearings and Appeals.
(b) The Office that issued the Proposed Remedial Order and the
person to whom the Order is directed shall be considered participants
before the Office of Hearings and Appeals at all stages of an
enforcement proceeding. Any other person whose interest may be affected
by the proceeding may file a request to participate in the proceeding
with the Office of Hearings and Appeals within 20 days after publication
of the notice referred to in paragraph (a) of this section. The request
shall contain
(1) The person's name, address, and telephone number and similar
information concerning his duly authorized representative, if any;
(2) A detailed description of the person's interest in the
proceeding;
[[Page 24]]
(3) The specific reasons why the person's active involvement in the
proceeding will substantially contribute to a complete resolution of the
issues to be considered in the proceeding;
(4) A statement of the position which the person intends to adopt in
the proceeding; and
(5) A statement of the particular aspects of the proceeding, e.g.
oral argument, submission of briefs, or discovery, in which the person
wishes to actively participate.
(c) After considering the requests submitted pursuant to paragraph
(b) of this section, the Office of Hearings and Appeals shall determine
those persons who may participate on an active basis in the proceeding
and the nature of their participation. Participants with similar
interests may be required to consolidate their submissions and to appear
in the proceeding through a common representative.
(d) Within 30 days after publication of the notice referred to in
paragraph (a) of this section, the Office of Hearings and Appeals shall
prepare an official service list for the proceeding. Within the same 30
day period the Office of Hearings and Appeals shall mail the official
service list to all persons who filed requests to participate. For good
cause shown a person may be placed on the official service list as a
non-participant, for the receipt of documents only. An opportunity shall
be afforded to participants to oppose the placement of a non-participant
on the official service list.
(e) A person requesting to participate after the period for
submitting requests has expired must show good cause for failure to file
a request within the prescribed time period.
(f) The Office of Hearings and Appeals may limit the nature of a
person's participation in the proceeding, if it finds that the facts
upon which the person's request was based have changed or were incorrect
when stated or that the person has not been actively participating or
has engaged in disruptive or dilatory conduct. The action referred to in
this provision shall be taken only after notice and an opportunity to be
heard are afforded.
Sec. 205.195 Filing and service of all submissions.
(a)(1) Statements of Objections, Responses to such Statements, and
any motions or other documents filed in connection with a proceeding
shall meet the requirements of Sec. 205.9 and shall be filed with the
Office of Hearings and Appeals in accordance with Sec. 205.4. Unless
otherwise specified, any participant may file a response to a motion
within five days of service.
(2) All documents shall be filed in duplicate, unless they contain
confidential information, in which case they must be filed in
triplicate.
(3) If a person claims that any portion of a document which he is
filing contains confidential information, such information should be
deleted from two of the three copies which are filed. One copy from
which confidential information has been deleted will be placed in the
Office of Hearings and Appeals Public Docket Room.
(b)(1) Persons other than DOE offices shall on the date a submission
is filed serve each person on the official service list. Service shall
be made in accordance with Sec. 205.7 and may also be made by deposit
in the regular United States mail, properly stamped and addressed, when
accompanied by proof of service consisting of a certificate of counsel
or an affidavit of the person making the service. If any filing arguably
contains confidential information, a person may serve copies with the
confidential information deleted upon all persons on the official
service list except DOE offices, which shall be served both an original
filing and one with deletions.
(2) A DOE office shall on the date it files a submission serve all
persons on the official service list, unless the filing arguably
contains confidential information. In that case the DOE office shall
notify the person to whom the information relates of the opportunity to
identify and delete the confidential information. The DOE Office may
delay the service of a submission containing arguably confidential
information upon all persons other than the possessor of the
confidential information and other DOE offices up to 14 days. The
possessor of the confidential information shall serve the filing with
any
[[Page 25]]
deletions upon all persons on the official service list within such time
period.
(c) Any filing made under this section shall include a certification
of compliance by the filer with the provisions of this subpart. The
person serving a document shall file a certificate of service, which
includes the date and manner of service for each person on the official
service list.
Sec. 205.196 Statement of objections.
(a) A person who has filed a Notice of Objection shall file a
Statement of Objections to a Proposed Remedial Order within 40 days
after service of the Notice of Objection. A request for an extension of
time for filing must be submitted in writing and may be granted for good
cause shown.
(b) The Statement of Objections shall set forth the bases for the
objections to the issuance of the Proposed Remedial Order as a final
order, including a specification of the issues of fact or law which the
person intends to contest in any further proceeding involving the
compliance matter which is the subject of the Proposed Remedial Order.
The Statement shall set forth the findings of fact contained in the
Proposed Remedial Order which are alleged to be erroneous, the factual
basis for such allegations, and any alternative findings which are
sought. The Statement shall include a discussion of all relevant
authorities which support the position asserted. The Statement may
include additional factual representations which are not referred to in
the Proposed Remedial Order and which the person contends are material
and relevant to the compliance proceeding. For each additional factual
representation which the person asserts should be made, the Statement
shall include reasons why the factual representation is relevant and
material, and the manner in which its validity is or will be
established. The person shall also specify the manner in which each
additional issue of fact was raised in any prior administrative
proceeding which led to issuance of the Proposed Remedial Order, or the
reasons why it was not raised.
(c) A Statement of Objections that is filed by the person to whom a
Proposed Remedial Order is directed shall include a copy of any relevant
Notice of Probable Violation, each Response thereto, the Proposed
Remedial Order, and any relevant work papers or supplemental information
previously provided by ERA. Copies of this material must also be
included with the copy of the Statement of Objections served upon the
DOE Assistant General Counsel for Administrative Litigation. All other
persons on the official service list must be notified that such
materials are available from the notifier upon written request.
Sec. 205.197 Response to statement of objections; reply.
(a) Within 30 days after service of a Statement of Objections each
participant may file a Response. If any motions are served with the
Statement of Objections, a participant shall have 30 days from the date
of service to respond to such submissions, notwithstanding any shorter
time periods otherwise required in this subpart. The Response shall
contain a full discussion of the position asserted and a discussion of
the legal and factual bases which support that position. The Response
may also contain a request that any issue of fact or law advanced in a
Statement of Objections be dismissed. Any such request shall be
accompanied by a full discussion of the reasons supporting the
dismissal.
(b) A participant may submit a Reply to any Response within 10 days
after the date of service of the Response.
Sec. 205.198 Discovery.
(a) If a person intends to file a Motion for Discovery, he must file
it at the same time that he files his Statement of Objections or at the
same time he files his Response to a Statement of Objections, whichever
is earlier. All Motions for Discovery and related filings must be served
upon the person to whom the discovery is directed. If the person to whom
the discovery is directed is not on the official service list, the
documents served upon him shall include a copy of this section, the
address of the Office of Hearings and Appeals and a statement that
objections to the Motion may be filed with the Office of Hearings and
Appeals.
[[Page 26]]
(b) A Motion for Discovery may request that:
(1) A person produce for inspection and photocopying non-privileged
written material in his possession;
(2) A person respond to written interrogatories;
(3) A person admit to the genuineness of any relevant document or
the truth of any relevant fact; or
(4) The deposition of a material witness be taken.
(c) A Motion for Discovery shall set forth the reasons why the
particular discovery is necessary in order to obtain relevant and
material evidence and shall explain why such discovery would not unduly
delay the proceeding.
(d) Within 20 days after a Motion for Discovery is served, a
participant or a person to whom the discovery is directed may file a
request that the Motion be denied in whole or in part, stating the
reasons which support the request.
(e) Discovery may be conducted only pursuant to an Order issued by
the Office of Hearings and Appeals. A Motion for Discovery will be
granted if it is concluded that discovery is necessary for the party to
obtain relevant and material evidence and that discovery will not unduly
delay the proceeding. Depositions will be permitted if a convincing
showing is made that the participant cannot obtain the material sought
through one of the other discovery means specified in paragraph (b) of
this section.
(f) The Director of the Office of Hearings and Appeals or his
designee may issue subpoenas in accordance with Sec. 205.8 in support
of Discovery Orders, except that Sec. 205.8 (h)(2), (3), and (4) shall
not apply to such subpoenas.
(g) The Office of Hearings and Appeals may order that any direct
expenses incurred by a person to produce evidence pursuant to a Motion
for Discovery be charged to the person who filed the Motion.
(h)(1) If a person fails to comply with an order relating to
discovery, the Office of Hearings and Appeals may order appropriate
sanctions.
(2) It shall be the duty of aggrieved participants to request that
appropriate relief be fashioned in such situations.
(i) Any order issued by the Office of Hearings and Appeals with
respect to discovery shall be subject to further administrative review
or appeal only upon issuance of the determination referred to in Sec.
205.199B.
Sec. 205.198A Protective order.
A participant who has unsuccessfully attempted in writing to obtain
information that another participant claims is confidential may file a
Motion for Discovery and Protective Order. This motion shall meet the
requirements of Sec. 205.198 and shall specify the particular
confidential information that the movant seeks and the reasons why the
information is necessary to adequately present the movant's position in
the proceeding. A copy of the written request for information, a
certification concerning when and to whom it was served and a copy of
the response, if any, shall be appended to the motion. The motion must
give the possessor of the information notice that a Response to the
Motion must be filed within ten days. The Response shall specify the
safeguards, if any, that should be imposed if the information is ordered
to be released. The Office of Hearings and Appeals may issue a
Protective Order upon consideration of the Motion and the Response.
Sec. 205.199 Evidentiary hearing.
(a) Filing Requirements. At the time a person files a Statement of
Objections he may also file a motion requesting an evidentiary hearing
be convened. A motion requesting an evidentiary hearing may be filed by
any other participant within 30 days after that participant is served
with a Statement of Objections.
(b) Contents of Motion for Evidentiary Hearing. A Motion for
Evidentiary Hearing shall specify each disputed issue of fact and the
bases for the alternative findings the movant asserts. The movant shall
also describe the manner in which each disputed issue of fact was raised
in any prior administrative proceeding which led to issuance of the
Proposed Remedial Order, or why it was not raised. The movant shall with
respect to each disputed or alternative finding of fact:
[[Page 27]]
(1) As specifically as possible, identify the witnesses whose
testimony is required;
(2) State the reasons why the testimony of the witnesses is
necessary; and
(3) State the reasons why the asserted position can be effectively
established only through the direct questioning of witnesses at an
evidentiary hearing.
(c) Response to Motion for Evidentiary Hearing. Within 20 days after
service of any Motion for Evidentiary Hearing, the Office that issued
the Proposed Remedial Order shall, and any other participant may file a
Response with the Office of Hearings and Appeals. The Response shall
specify:
(1) Each particular factual representation which is accepted as
correct for purposes of the proceeding;
(2) Each particular factual representation which is denied;
(3) Each particular factual representation which the participant is
not in a position to accept or deny;
(4) Each particular factual representation which is not accepted and
the participant wishes proven by the submission of evidence;
(5) Each particular factual representation which the participant is
prepared to dispute through the testimony of witnesses or the submission
of verified documents; and
(6) Each particular factual representation which the participant
asserts should be dismissed as immaterial or irrelevant.
(d) Prehearing Conferences. After all submissions with respect to a
Motion for Evidentiary Hearing are filed, the Office of Hearings and
Appeals may conduct conferences or hearings to resolve differences of
view among the participants.
(e) Decision on Motion for Evidentiary Hearing. After considering
all relevant information received in connection with the Motion, the
Office of Hearings and Appeals shall enter an Order. In the Order the
Office of Hearings and Appeals shall direct that an evidentiary hearing
be convened if it concludes that a genuine dispute exists as to relevant
and material issues of fact and an evidentiary hearing would
substantially assist it in making findings of fact in an effective
manner. If the Motion for Evidentiary Hearing is granted in whole or in
part, the Order shall specify the parties to the hearing, any
limitations on the participation of a party, and the issues of fact set
forth for the evidentiary hearing. The Order may also require parties
that have adopted similar positions to consolidate their presentations
and to appear at the evidentiary hearing through a common
representative. If the Motion is denied, the Order may allow the movant
to file affidavits and other documents in support of his asserted
findings of fact.
(f) Review of Decision. The Order of the Office of Hearings and
Appeals with respect to a Motion for Evidentiary Hearing shall be
subject to further administrative review or appeal only upon issuance of
the determination referred to in Sec. 205.199B.
(g) Conduct of Evidentiary Hearing. All evidentiary hearings
convened pursuant to this section shall be conducted by the Director of
the Office of Hearings and Appeals or his designee. At any evidentiary
hearing the parties shall have the opportunity to present material
evidence which directly relates to a particular issue of fact set forth
for hearing. The presiding officer shall afford the parties an
opportunity to cross examine all witnesses. The presiding officer may
administer oaths and affirmations, rule on objections to the
presentation of evidence, receive relevant material, rule on any motion
to conform the Proposed Remedial Order to the evidence presented, rule
on motions for continuance, dispose of procedural requests, determine
the format of the hearing, modify any order granting a Motion for
Evidentiary Hearing, direct that written motions or briefs be provided
with respect to issues raised during the course of the hearing, issue
subpoenas, and otherwise regulate the conduct of the hearing. The
presiding officer may take reasonable measures to exclude duplicative
material from the hearing, and may place appropriate limitations on the
number of witnesses that may be called by a party. The presiding officer
may also require that evidence be submitted through affidavits or other
documents if the direct testimony of witnesses will unduly delay the
orderly
[[Page 28]]
progress of the hearing and would not contribute to resolving the issues
involved in the hearing. The provisions of Sec. 205.8 which relate to
subpoenas and witness fees shall apply to any evidentiary hearing,
except that subsection Sec. 205.8(h) (2), (3), and (4) shall not apply.
Sec. 205.199A Hearing for the purpose of oral argument only.
(a) A participant is entitled upon timely request to a hearing to
present oral argument with respect to the Proposed Remedial Order,
whether or not an evidentiary hearing is requested or convened. A
participant's request shall normally be considered untimely, if made
more than 10 days after service of a determination regarding any motion
filed by the requestor or, if no motions were filed by him, if made
after the date for filing his Reply or his Response to a Statement of
Objections.
(b) If an evidentiary hearing is convened, and a hearing for oral
argument is requested, the Office of Hearings and Appeals shall
determine whether the hearing for oral argument shall be held in
conjunction with the evidentiary hearing or at a separate time.
(c) A hearing for the purpose of receiving oral argument will
generally be conducted only after the issues involved in the proceeding
have been delineated, and any written material which the Office of
Hearings and Appeals has requested to supplement a Statement of
Objections or Responses has been submitted. The presiding officer may
require further written submissions in support of any position advanced
or issued at the hearing, and shall allow responses any such
submissions.
Sec. 205.199B Remedial order.
(a) After considering all information received during the
proceeding, the Director of the Office of Hearings and Appeals or his
designee may issue a final Remedial Order. The Remedial Order may adopt
the findings and conclusions contained in the Proposed Remedial Order or
may modify or rescind any such finding or conclusion to conform the
Order to the evidence or on the basis of a determination that the
finding or conclusion is erroneous in fact or law or is arbitrary or
capricious. In the alternative, the Office of Hearings and Appeals may
determine that no Remedial Order should be issued or may remand all or a
portion of the Proposed Remedial Order to the issuing DOE office for
further consideration or modification. Every determination made pursuant
to this section shall state the relevant facts and legal bases
supporting the determination.
(b) The DOE shall serve a copy of any determination issued pursuant
to paragraph (a) of this section upon the person to whom it is directed,
any person who was served with a copy of the Proposed Remedial Order,
the DOE office that issued the Proposed Remedial Order, the DOE
Assistant General Counsel for Administrative Litigation and any other
person on the official service list. Appropriate deletions may be made
in the determinations to ensure that confidentiality of information
protected from disclosure under 18 U.S.C. 1905 and 5 U.S.C. 552. A copy
of the determination with appropriate deletions to protect confidential
and proprietary data shall be placed in the Office of Hearings and
Appeals Public Docket Room.
Sec. 205.199C Appeals of remedial order to FERC.
(a) The person to whom a Remedial Order is issued by the Office of
Hearings and Appeals may file an administrative appeal if the Remedial
Order proceeding was initiated by a Notice of Probable Violation issued
after October 1, 1977, or, in those situations in which no Notice of
Probable Violation was issued, if the proceeding was initiated by a
Proposed Remedial Order issued after October 1, 1977.
(b) Any such appeal must be initiated within 30 days after service
of the Order by giving written notice to the Office of Hearings and
Appeals that the person to whom a Remedial Order is issued wishes to
contest the Order.
(c) The Office of Hearings and Appeals shall promptly advise the
Federal Energy Regulatory Commission of its receipt of a notice
described in paragraph (b) of this section.
(d) The Office of Hearings and Appeals may, on a case by case basis,
set reasonable time limits for the Federal
[[Page 29]]
Energy Regulatory Commission to complete its action on such an appeal
proceeding.
(e) In order to exhaust administrative remedies, a person who is
entitled to appeal a Remedial Order issued by the Office of Hearings and
Appeals must file a timely appeal and await a decision on the merits.
Any Remedial Order that is not appealed within the 30-day period shall
become effective as a final Order of the DOE and is not subject to
review by any court.
Sec. Sec. 205.199D-205.199E [Reserved]
Sec. 205.199F Ex parte communications.
(a) No person who is not employed or otherwise supervised by the
Office of Hearings and Appeals shall submit ex parte communications to
the Director or any person employed or otherwise supervised by the
Office with respect to any matter involved in Remedial Order or Order of
Disallowance proceedings.
(1) Ex parte communications include any ex parte oral or written
communications relative to the merits of a Proposed Remedial Order,
Interim Remedial Order for Immediate Compliance, or Proposed Order of
Disallowance proceeding pending before the Office of Hearings and
Appeals. The term shall not, however, include requests for status
reports, inquiries as to procedures, or the submission of proprietary or
confidential information. Notice that proprietary or confidential
submissions have been made shall be given to all persons on the official
service list.
(b) If any communication occurs that violates the provisions of this
section, the Office of Hearings and Appeals shall promptly make the
substance of the communication available to the public and serve a copy
of a written communication or a memorandum summarizing an oral
communication to all participants in the affected proceeding. The Office
of Hearings and Appeals may also take any other appropriate action to
mitigate the adverse impact to any person whose interest may be affected
by the ex parte contact.
Sec. 205.199G Extension of time; Interim and Ancillary Orders.
The Director of the Office of Hearings and Appeals or his designee
may permit upon motion any document or submission referred to in this
subpart other than appeals to FERC to be amended or withdrawn after it
has been filed or to be filed within a time period different from that
specified in this subpart. The Director or his designee may upon motion
or on his own initiative issue any interim or ancillary Orders,
reconsider any determinations, or make any rulings or determinations
that are deemed necessary to ensure that the proceedings specified in
this subpart are conducted in an appropriate manner and are not unduly
delayed.
Sec. 205.199H Actions not subject to administrative appeal.
A Notice of Probable Violation, Notice of Proposed Disallowance,
Proposed Remedial Order or Interim Remedial Order for Immediate
Compliance issued pursuant to this subpart shall not be an action from
which there may be an administrative appeal pursuant to subpart H. In
addition, a determination by the Office of Hearings and Appeals that a
Remedial Order, an Order of Disallowance, or a Remedial Order for
Immediate Compliance should not be issued shall not be appealable
pursuant to subpart H.
Sec. 205.199I Remedies.
(a) A Remedial Order, a Remedial Order for Immediate Compliance, an
Order of Disallowance, or a Consent Order may require the person to whom
it is directed to roll back prices, to make refunds equal to the amount
(plus interest) charged in excess of those amounts permitted under DOE
Regulations, to make appropriate compensation to third persons for
administrative expenses of effectuating appropriate remedies, and to
take such other action as the DOE determines is necessary to eliminate
or to compensate for the effects of a violation or any cost disallowance
pursuant to Sec. 212.83 or Sec. 212.84. Such action may include a
direction to the person to whom the Order is issued to establish an
escrow account or take other measures to
[[Page 30]]
make refunds directly to purchasers of the products involved,
notwithstanding the fact that those purchasers obtained such products
from an intermediate distributor of such person's products, and may
require as part of the remedy that the person to whom the Order is
issued maintain his prices at certain designated levels, notwithstanding
the presence or absence of other regulatory controls on such person's
prices. In cases where purchasers cannot be reasonably identified or
paid or where the amount of each purchaser's overcharge is incapable of
reasonable determination, the DOE may refund the amounts received in
such cases directly to the Treasury of the United States on behalf of
such purchasers.
(b) The DOE may, when appropriate, issue final Orders ancillary to a
Remedial Order, Remedial Order for Immediate Compliance, Order of
Disallowance, or Consent Order requiring that a direct or indirect
recipient of a refund pass through, by such means as the DOE deems
appropriate, including those described in paragraph (a) of this section,
all or a portion of the refund, on a pro rata basis, to those customers
of the recipient who were adversely affected by the initial overcharge.
Ancillary Orders may be appealed to the Office of Hearings and Appeals
only pursuant to subpart H.
Sec. 205.199J Consent order.
(a) Notwithstanding any other provision of this subpart, the DOE may
at any time resolve an outstanding compliance investigation or
proceeding, or a proceeding involving the disallowance of costs pursuant
to Sec. 205.199E with a Consent Order. A Consent Order must be signed
by the person to whom it is issued, or a duly authorized representative,
and must indicate agreement to the terms contained therein. A Consent
Order need not constitute an admission by any person that DOE
regulations have been violated, nor need it constitute a finding by the
DOE that such person has violated DOE regulations. A Consent Order
shall, however, set forth the relevant facts which form the basis for
the Order.
(b) A Consent Order is a final Order of the DOE having the same
force and effect as a Remedial Order issued pursuant to Sec. 205.199B
or an Order of Disallowance issued pursuant to Sec. 205.199E, and may
require one or more of the remedies authorized by Sec. 205.199I and
Sec. 212.84(d)(3). A Consent Order becomes effective no sooner than 30
days after publication under paragraph (c) of this section, unless (1)
the DOE makes a Consent Order effective immediately, because it
expressly deems it necessary in the public interest, or (2) the Consent
Order involves a sum of less than $500,000 in the aggregate, excluding
penalties and interest, in which case it will be effective when signed
both by the person to whom it is issued and the DOE, and will not be
subject to the provisions of paragraph (c) of this section unless the
DOE determines otherwise. A Consent Order shall not be appealable
pursuant to the provisions of Sec. 205.199C or Sec. 205.199D and
subpart H, and shall contain an express waiver of such appeal or
judicial review rights as might otherwise attach to a final Order of the
DOE.
(c) When a Consent Order has been signed, both by the person to whom
it is issued and the DOE, the DOE will publish notice of such Consent
Order in the Federal Register and in a press release to be issued
simultaneously therewith. The Federal Register notice and the press
release will state at a minimum the name of the company concerned, a
brief summary of the Consent Order and other facts or allegations
relevant thereto, the address and telephone number of the DOE office at
which copies of the Consent Order will be available free of charge, the
address to which comments on the Consent Order will be received by the
DOE, and the date by which such comments should be submitted, which date
will not be less than 30 days after publication of the Federal Register
notice. After the expiration of the comment period the DOE may withdraw
its agreement to the Consent Order, attempt to negotiate a modification
of the Consent Order, or issue the Consent Order as signed. The DOE will
publish in the Federal Register, and by press release, notice of any
action taken on a Consent Order and such explanation of
[[Page 31]]
the action taken as deemed appropriate. The provisions of this paragraph
shall be applicable notwithstanding the fact that a Consent Order may
have been made immediately effective pursuant to paragraph (b) of this
section (except in cases where the Consent Order involves sums of less
than $500,000 in the aggregate, excluding penalties and interest).
(d) At any time and in accordance with the procedures of subpart J,
a Consent Order may be modified or rescinded, upon petition by the
person to whom the Consent Order was issued, and may be rescinded by the
DOE upon discovery of new evidence which is materially inconsistent with
evidence upon which the DOE's acceptance of the Consent Order was based.
Modifications of a Consent Order which is subject to public comment
under the provisions of paragraph (c) of this section, which in the
opinion of the DOE significantly change the terms or the impact of the
original Order, shall be republished under the provisions of that
paragraph.
(e) Notwithstanding the issuance of a Consent Order, the DOE may
seek civil or criminal penalties or compromise civil penalties pursuant
to subpart P concerning matters encompassed by the Consent Order, unless
the Consent Order by its terms expressly precludes the DOE from so
doing.
(f) If at any time after a Consent Order becomes effective it
appears to the DOE that the terms of the Consent Order have been
violated, the DOE may refer such violations to the Department of Justice
for appropriate action in accordance with subpart P.
Subparts P-T [Reserved]
Subpart U_Procedures for Electricity Export Cases
Authority: Federal Power Act, 41 Stat. 1063, as amended; Executive
Order 10485, as amended by Executive Order 12038; Federal Energy
Administration Act of 1974, Pub. L. 93-275, as amended; Pub. L. 94-332,
Pub. L. 94-385, Pub. L. 95-70, and Pub. L. 95-91; Energy Policy and
Conservation Act, Pub. L. 95-70; Department of Energy Organization Act,
Pub. L. 95-91; E.O. 11790, 39 FR 23185; E.O. 12009, 42 FR 46267.
Source: 49 FR 35315, Sept. 6, 1984, unless otherwise noted.
Sec. 205.260 Purpose and scope.
(a) The purpose of this section is to state the procedures that will
be followed by the Economic Regulatory Administration of the Department
of Energy in electricity export adjudications.
(b) Definitions. As used in this subpart--
Administrator means the Administrator of the Economic Regulatory
Administration.
Decisional employees means the Administrator, presiding officers at
adjudicatory hearings, and other employees of the Department, including
consultants and contractors, who are, or may reasonably be expected to
be, involved in the decision-making process, which includes advising the
Administrator in resolving the issues in an adjudication. The term does
not include those employees of the Department performing investigative
or trial functions in an adjudication, unless they are specifically
requested by the Administrator or his delegate to participate in the
decision-making process.
Department means the Department of Energy.
Off-the-record communication means an ex parte communication, which
is an oral or written communication relevant to the merits of an
adjudication and not on the record and with respect to which reasonable
prior notice to all participants and opportunity to be present at, or
respond to, the communication is not given, but does not include a
communication relating solely to procedures which are not relevant to
the merits of the adjudication.
Interested person means a person outside the Department whose
interest in the adjudication goes beyond the general interest of the
public as a whole and includes applicants, intervenors, competitors of
applicants, non-profit and public interest organizations, and other
individuals and organizations, including state, local and other public
officials, with a proprietary, financial or other special interest in
the outcome of the adjudication. The term does not include other federal
agencies, unless an
[[Page 32]]
agency is a participant in the adjudication.
Participant means any applicant or intervenor participating in the
adjudication.
Adjudication means a formal proceeding employing procedures
identical or similar to those required by the Administrative Procedure
Act, as codified in 5 U.S.C. 551, 556, and 557, to consider an
application to export electricity.
Reasonable prior notice means 7 days' written notice stating the
nature and purpose of the communication.
Relevant to the merits means a communication directly related to the
merits of a specific adjudication but does not include general
background discussions about an entire industry or communications of a
general nature made in the course of developing agency policy for future
general application.
Sec. Sec. 205.261-205.269 [Reserved]
Sec. 205.270 Off-the-record communications.
(a) In any proceeding which is subject to this subpart--
(1) No interested person shall make an off-the-record communication
or knowingly cause an off-the-record communication to be made to any
decisional employee.
(2) No decisional employee shall make an off-the-record
communication or knowingly cause an off-the-record communication to be
made to any interested person.
(3) A decisional employee who receives, makes, or knowingly causes
to be made an oral communication prohibited by this section shall
prepare a memorandum stating the substance of the communication and any
responses made to it.
(4) With 48 hours of receiving, making or knowingly causing to be
made a communication prohibited by this section, a decisional employee
shall deliver all written off-the-record communications and all
memoranda prepared in compliance with paragraph (a)(3) of this section
to the Director of the Coal and Electricity Division, ERA, who will
immediately place the materials described above in the public record
associated with the adjudication, available for public inspection.
(5) Upon receipt of a communication knowingly made or knowingly
caused to be made by a participant in violation of this section, the
Administrator or presiding officer may, to the extent consistent with
the interests of justice and the applicable statutory policy, require
the participant to show cause why his or her claim or interest in the
adjudication should not be dismissed, denied, disregarded, or otherwise
adversely affected on account of the violation.
(6) The prohibitions of this section shall apply beginning at the
time an adjudication is noticed for hearing (or the person responsible
for the communication acquires knowledge that it will be noticed), a
protest is filed, or a petition or notice to intervene in opposition to
the requested Department action is filed, whichever occurs first.
(b) The prohibition, cited at 18 CFR 1.30(f), against participation
in the decision-making process by Department employees who perform
investigative or trial functions in an adjudication, shall no longer be
applicable to ERA.
Subpart V_Special Procedures for Distribution of Refunds
Authority: Economic Stabilization Act of 1970, Pub. L. 92-210;
Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended,
Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133, Pub. L. 94-163, and Pub.
L. 94-385, Federal Energy Administration Act of 1974, Pub. L. 93-275, as
amended, Pub. L. 94-332, Pub. L. 94-332, Pub. L. 94-385, Pub. L. 95-70,
Pub. L. 95-91, Energy Policy and Conservation Act, Pub. L. 94-163, as
amended, Pub. L. 94-385, Pub. L. 95-70; Department of Energy
Organization Act, Pub. L. 95-91; E.O. 11790, 39 FR 23185; E.O. 12009, 42
FR 46267.
Source: 44 FR 8566, Feb. 9, 1979, unless otherwise noted.
Sec. 205.280 Purpose and scope.
This subpart establishes special procedures pursuant to which
refunds may be made to injured persons in order to remedy the effects of
a violation of the regulations of the Department of Energy. This subpart
shall be applicable to those situations in which the Department of
Energy is unable to readily identify persons who are entitled to
[[Page 33]]
refunds specified in a Remedial Order, a Remedial Order for Immediate
Compliance, an Order of Disallowance or a Consent Order, or to readily
ascertain the amounts that such persons are entitled to receive.
Sec. 205.281 Petition for implementation of special refund procedures.
(a) At any time after the issuance of a Remedial Order (including
for purposes of this subpart a Remedial Order for Immediate Compliance
and an Order of Disallowance), or a Consent Order, the Special Counsel
of the Department of Energy, the ERA Office of Enforcement, or any other
enforcement official of the Department of Energy may file with the
Office of Hearings and Appeals a Petition for the Implementation of
Special Refund Procedures.
(b) The Petition shall state that the person filing it has been
unable readily either to identify the persons who are entitled to
refunds to be remitted pursuant to a Remedial Order or a Consent Order
or to ascertain the amounts of refunds that such persons are entitled to
receive. The Petition shall request that the Office of Hearings and
Appeals institute appropriate proceedings under this subpart to
distribute the funds referred to in the enforcement documents.
(c) The Petition shall contain a copy of each relevant enforcement
document, shall be filed in duplicate, and shall meet the requirements
of Sec. 205.9 of this part.
Sec. 205.282 Evaluation of petition by the Office of Hearings and Appeals.
(a) After considering the Petition, the Director of the Office of
Hearings and Appeals or his designee shall issue a Proposed Decision and
Order. The Proposed Decision and Order shall generally describe the
nature of the particular refund proceeding and shall set forth the
standards and procedures that the Office of Hearings and Appeals intends
to apply in evaluating refund claims.
(b) The Proposed Decision and Order shall be published in the
Federal Register together with a statement that any member of the public
may submit written comments to the Office of Hearings and Appeals with
respect to the matter. At least 30 days following publication in the
Federal Register shall be provided for the submission of comments.
(c) After considering the comments submitted, the Director of the
Office of Hearings and Appeals or his designee shall issue a final
Decision and Order which shall govern the disposition of the refunds.
The final Decision and Order shall also be published in the Federal
Register.
(d) The final Decision and Order shall set forth the standards and
procedures that will be used in evaluating individual Applications for
Refunds and distributing the refund amount. Those standards and
procedures shall be consistent with the provisions of this subpart.
(e) In establishing standards and procedures for implementing refund
distributions, the Office of Hearings and Appeals shall take into
account the desirability of distributing the refunds in an efficient,
effective and equitable manner and resolving to the maximum extent
practicable all outstanding claims. In order to do so, the standards for
evaluation of individual claims may be based upon appropriate
presumptions.
Sec. 205.283 Applications for refund.
(a) Any person entitled to a refund pursuant to a final Decision and
Order issued pursuant to Sec. 205.282 may file an Application for
Refund. All Applications must be signed by the applicant and specify the
DOE order to which they pertain. Any Application for a refund in excess
of $100 must be file in duplicate, and a copy of that Application will
be available for public inspection in the DOE Public Docket Room at 2000
M Street, NW., Washington, DC. Any applicant who believes that his
Application contains confidential information must so indicate on the
first page of his Application and submit two additional copies of his
Application from which the information that the applicant claims is
confidential has been deleted, together with a statement specifying why
any such information is privileged or confidential.
(b) The contents of an Application for Refund shall be specified in
the final
[[Page 34]]
Decision and Order referred to in Sec. 205.282(c). A filing deadline
for Applications shall also be specified in the final Decision and
Order, and shall be no less than 90 days after the publication of the
Order in the Federal Register.
(c) Each Application shall be in writing and signed by the
applicant, and shall indicate whether the applicant or any person acting
on his instructions has filed or intends to file any other Application
or claim of whatever nature regarding the matters at issue in the
underlying enforcement proceeding. Each Application shall also include a
sworn statement by the applicant that all information in his Application
is true and correct to the best of his knowledge and belief.
Sec. 205.284 Processing of applications.
(a) The Director of the Office of Hearings and Appeals may appoint
an administrator to evaluate Applications under guidelines established
by the Office of Hearings and Appeals. The administrator, if he is not a
Federal Government employee, may be compensated from the funds referred
to in the Remedial Order or Consent Order. The administrator may design
and distribute an optional application form for the convenience of the
applicants.
(b) The Office of Hearings and Appeals or its designee may initiate
an investigation of any statement made in an Application and may require
verification of any document submitted in support of a claim. In
evaluating an Application, the Office of Hearings and Appeals or its
designee may solicit and consider information obtained from any source
and may on its own initiative convene a hearing or conference, if it
determines that a hearing or conference will advance its evaluation of
an Application.
(c) The Director of the Office of Hearings and Appeals or his
designee shall conduct any hearing or conference convened with respect
to an Application for Refund and shall specify the time and place for
the hearing or conference and notify the applicant. The official
conducting the hearing may administer oaths and affirmations, rule on
the presentation of information, receive relevant information, dispose
of procedural requests, determine the format of the hearing and
otherwise regulate the course of the hearing. The provisions of Sec.
205.8 of this part which relate to subpoenas and witness fees shall
apply to any hearing convened with respect to an application for refund,
except that Sec. 205.8(h) (2), (3) and (4) shall not apply.
(d) Upon consideration of an Application and other relevant
information received during the course of a refund proceeding, the
Director of the Office of Hearings and Appeals or his designee shall
issue an order granting or denying the Application. The order shall
contain a concise statement of the relevant facts and the legal basis
for the order. A copy of the order, with such modification as is
necessary to ensure the confidentiality of information protected from
public disclosure by 18 U.S.C. 1905, may be obtained upon request by an
applicant or any other person who participated in the proceeding.
Sec. 205.285 Effect of failure to file a timely application.
An Application for Refund must be filed no later than the date that
the Office of Hearings and Appeals establishes pursuant to Sec.
205.283(b). Any Application that is not filed on a timely basis may be
summarily dismissed. The Office of Hearings and Appeals or its designee
may, however, grant extensions of time for good cause shown. Any request
for an extension of time must generally be submitted in writing prior to
the deadline.
Sec. 205.286 Limitations on amount of refunds.
(a) The aggregate amount of all refunds approved by the Office of
Hearings and Appeals or its designee in a given case shall not exceed
the amount to be remitted pursuant to the relevant DOE enforcement
order, plus any accumulated interest, reduced by the amount of any
administrative costs approved by the Office of Hearings and Appeals. In
the event that the aggregate amount of approved claims exceeds the
aggregate amount of funds specified above, the Office of Hearings and
Appeals may make refunds on a pro rata basis. The Office of Hearings and
Appeals may delay payment of any
[[Page 35]]
refunds until all Applications have been processed.
(b) The Office of Hearings and Appeals may decline to consider
Applications for refund amounts that, in view of the direct
administrative costs involved, are too small to warrant individual
consideration.
Sec. 205.287 Escrow accounts, segregated funds and other guarantees.
(a) In implementing the refund procedures specified in this subpart,
the Director of the Office of Hearings and Appeals or his designee shall
issue an order providing for the custody of the funds to be tendered
pursuant to the Remedial Order or Consent Order. This Order may require
placement of the funds in an appropriate interest-bearing escrow
account, retention of the funds by the firm in a segregated account
under such terms and conditions as are specified by the DOE, or the
posting of a sufficient bond or other guarantee to ensure payment.
(b) All costs and charges approved by the Office of Hearings and
Appeals and incurred in connection with the processing of Applications
for Refund or incurred by an escrow agent shall be paid from the amount
of funds, including any accumulated interest, to be remitted pursuant to
the Remedial Order or Consent Order.
(c) After the expenses referred to in paragraph (b) of this section
have been satisfied and refunds distributed to successful applicants,
any remaining funds remitted pursuant to the Remedial Order or Consent
Order shall be deposited in the United States Treasury or distributed in
any other manner specified in the Decision and Order referred to in
Sec. 205.282(c).
(d) Funds contained in an escrow account, segregated fund, or
guaranteed by other approved means shall be disbursed only upon written
order of the Office of Hearings and Appeals.
Sec. 205.288 Interim and ancillary orders.
The Director of the Office of Hearings and Appeals or his designee
may issue any interim or ancillary orders, or make any rulings or
determinations to ensure that refund proceedings, including the actions
of the administrator and the custodian of the funds involved in a refund
proceeding, are conducted in an appropriate manner and are not unduly
delayed.
Subpart W_Electric Power System Permits and Reports; Applications;
Administrative Procedures and Sanctions; Grid Security Emergency Orders
(Approved by the Office of Management and Budget under Control No. 1901-
0245)
Authority: Pub. L. 95-91, 91 Stat. 565 (42 U.S.C. 7101); Pub. L. 66-
280, 41 Stat. 1063 (16 U.S.C. Section 792 et seq.); E.O. 10485, 18 FR
5397, 3 CFR, 1949-1953, Comp., p. 970 as amended by E.O. 12038, 43 FR
4957, 3 CFR 1978 Comp., p. 136; Department of Energy Delegation Order
No. 00-002.00Q (Nov. 1, 2018).
Source: 45 FR 71560, Oct. 28, 1980; 46 FR 63209, Dec. 31, 1981,
unless otherwise noted.
Application for Authorization to Transmit Electric Energy to a Foreign
Country
Sec. 205.300 Who shall apply.
(a) An electric utility or other entity subject to DOE jurisdiction
under part II of the Federal Power Act who proposes to transmit any
electricity from the United States to a foreign country must submit an
application or be a party to an application submitted by another entity.
The application shall be submitted to the Office of Utility Systems of
the Economic Regulatory Administration (EPA).
(b) In connection with an application under Sec. Sec. 205.300
through 205.309, attention is directed to the provisions of Sec. Sec.
205.320 through 205.327, below, concerning applications for Presidential
Permits for the construction, connection, operation, or maintenance, at
the borders of the United States, of facilities for the transmission of
electric energy between the United States and a foreign country in
compliance with Executive Order 10485, as amended by Executive Order
12038.
Sec. 205.301 Time of filing.
Each application should be made at least six months in advance of
the initiation of the proposed electricity export, except when otherwise
permitted by the ERA to resolve an emergency situation.
[[Page 36]]
Sec. 205.302 Contents of application.
Every application shall contain the following information set forth
in the order indicated below:
(a) The exact legal name of the applicant.
(b) The exact legal name of all partners.
(c) The name, title, post office address, and telephone number of
the person to whom correspondence in regard to the application shall be
addressed.
(d) The state or territory under the laws of which the applicant is
organized or incorporated, or authorized to operate. If the applicant is
authorized to operate in more than one state, all pertinent facts shall
be included.
(e) The name and address of any known Federal, State or local
government agency which may have any jurisdiction over the action to be
taken in this application and a brief description of that authority.
(f) A description of the transmission facilities through which the
electric energy will be delivered to the foreign country, including the
name of the owners and the location of any remote facilities.
(g) A technical discussion of the proposed electricity export's
reliability, fuel use and system stability impact on the applicant's
present and prospective electric power supply system. Applicant must
explain why the proposed electricity export will not impair the
sufficiency of electric supply on its system and why the export will not
impede or tend to impede the regional coordination of electric utility
planning or operation.
(h) The original application shall be signed and verified under oath
by an officer of the applicant having knowledge of the matters set forth
therein.
Sec. 205.303 Required exhibits.
There shall be filed with the application and as a part thereof the
following exhibits:
(a) Exhibit A. A copy of the agreement or proposed agreement under
which the electricity is to be transmitted including a listing of the
terms and conditions. If this agreement contains proprietary information
that should not be released to the general public, the applicant must
identify such data and include a statement explaining why proprietary
treatment is appropriate.
(b) Exhibit B. A showing, including a signed opinion of counsel,
that the proposed export of electricity is within the corporate power of
the applicant, and that the applicant has complied or will comply with
all pertinent Federal and State laws.
(c) Exhibit C. A general map showing the applicant's overall
electric system and a detailed map highlighting the location of the
facilities or the proposed facilities to be used for the generation and
transmission of the electric energy to be exported. The detailed map
shall identify the location of the proposed border crossing point(s) or
power transfer point(s) by Presidential Permit number whenever possible.
(d) Exhibit D. If an applicant resides or has its principal office
outside the United States, such applicant shall designate, by
irrevocable power of attorney, an agent residing within the United
States. A verified copy of such power of attorney shall be furnished
with the application.
(e) Exhibit E. A statement of any corporate relationship or existing
contract between the applicant and any other person, corporation, or
foreign government, which in any way relates to the control or fixing of
rates for the purchase, sale or transmission of electric energy.
(f) Exhibit F. An explanation of the methodology (Operating
Procedures) to inform neighboring electric utilities in the United
States of the available capacity and energy which may be in excess of
the applicant's requirements before delivery of such capacity to the
foreign purchaser. Approved firm export, diversity exchange and
emergency exports are exempted from this requirement. Those materials
required by this section which have been filed previously with the ERA
may be incorporated by reference.
Sec. 205.304 Other information.
Where the application is for authority to export less than 1,000,000
kilowatt hours annually, applicants need not furnish the information
called for in Sec. Sec. 205.302(g) and 205.303 (Exhibit C). Applicants,
regardless of the amount of
[[Page 37]]
electric energy to be exported, may be required to furnish such
supplemental information as the ERA may deem pertinent.
Sec. 205.305 Transferability.
(a) An authorization to transmit electric energy from the United
States to a foreign country granted by order of the ERA under section
202(e) of the Federal Power Act shall not be transferable or assignable.
Provided written notice is given to the ERA within 30 days, the
authorization may continue in effect temporarily in the event of the
involuntary transfer of this authority by operation of law (including
transfers to receivers, trustees, or purchasers under foreclosure or
judicial sale). This continuance is contingent on the filing of an
application for permanent authorization and may be effective until a
decision is made thereon.
(b) In the event of a proposed voluntary transfer of this authority
to export electricity, the transferee and the transferor shall file
jointly an application pursuant to this subsection, setting forth such
information as required by Sec. Sec. 205.300 through 205.304, together
with a statement of reasons for the transfer.
(c) The ERA may at any time subsequent to the original order of
authorization, after opportunity for hearing, issue such supplemental
orders as it may find necessary or appropriate.
Sec. 205.306 Authorization not exclusive.
No authorization granted pursuant to section 202(e) of the Act shall
be deemed to prevent an authorization from being granted to any other
person or entity to export electric energy or to prevent any other
person or entity from making application for an export authorization.
Sec. 205.307 Form and style; number of copies
An original and two conformed copies of an application containing
the information required under Sec. Sec. 205.300 through 205.309 must
be filed.
Sec. 205.308 Filing schedule and annual reports.
(a) Persons authorized to transmit electric energy from the United
States shall promptly file all supplements, notices of succession in
ownership or operation, notices of cancellation, and certificates of
concurrence. In general, these documents should be filed at least 30
days prior to the effective date of any change.
(b) A change in the tariff arrangement does not require an amendment
to the authorization. However, any entity with an authorization to
export electric energy shall file with the ERA, and the appropriate
state regulatory agency, a certified copy of any changed rate schedule
and terms. Such changes may take effect upon the date of filing of
informational data with the ERA.
(c) Persons receiving authorization to transmit electric energy from
the United States shall submit to the ERA, by February 15 each year, a
report covering each month of the preceding calendar year detailing the
gross amount of kilowatt-hours of energy, by authorized category,
received or delivered, and the cost and revenue associated with each
category.
(Approved by the Office of Management and Budget under Control No. 1901-
0245)
[45 FR 71560, Oct. 28, 1980, as amended at 46 FR 63209, Dec. 31, 1981]
Sec. 205.309 Filing procedures and fees.
Applications shall be addressed to the Office of Utility Systems of
the Economic Regulatory Administration. Every application shall be
accompanied by a fee of $500.00. Fee payment shall be by check, draft,
or money order payable to the Treasurer of the United States. Copies of
applications and notifications of rate changes shall be furnished to the
Federal Energy Regulatory Commission and all affected State public
utility regulatory agencies.
[[Page 38]]
Application for Presidential Permit Authorizing the Construction,
Connection, Operation, and Maintenance of Facilities for Transmission of
Electric Energy at International Boundaries
Sec. 205.320 Who shall apply.
(a) Any person, firm, co-operative, corporation or other entity who
operates an electric power transmission or distribution facility
crossing the border of the United States, for the transmission of
electric energy between the United States and a foreign country, shall
have a Presidential Permit, in compliance with Executive Order 10485, as
amended by Executive Order 12038. Such applications should be filed with
the Office of Utility Systems of the Economic Regulatory Administration.
Note: E.O. 12038, dated February 3, 1978, amended E.O. 10485, dated
September 3, 1953, to delete the words ``Federal Power Commission'' and
``Commission'' and substitute for each ``Secretary of Energy.'' E.O.
10485 revoked and superseded E.O. 8202, dated July 13, 1939.
(b) In connection with applications hereunder, attention is directed
to the provisions of Sec. Sec. 205.300 to 205.309, above, concerning
applications for authorization to transmit electric energy from the
United States to a foreign country pursuant to section 202(e) of the
Federal Power Act.
Sec. 205.321 Time of filing.
Pursuant to the DOE's responsibility under the National
Environmental Policy Act, the DOE must make an environmental
determination of the proposed action. If, as a result of this
determination, an environmental impact statement (EIS) must be prepared,
the permit processing time normally will be 18-24 months. If no
environmental impact statement is required, then a six-month processing
time normally would be sufficient.
Sec. 205.322 Contents of application.
Every application shall be accompanied by a fee prescribed in Sec.
205.326 of this subpart and shall provide, in the order indicated, the
following:
(a) Information regarding the applicant. (1) The legal name of the
applicant;
(2) The legal name of all partners;
(3) The name, title, post office address, and telephone number of
the person to whom correspondence in regard to the application shall be
addressed;
(4) Whether the applicant or its transmission lines are owned wholly
or in part by a foreign government or directly or indirectly assisted by
a foreign government or instrumentality thereof; or whether the
applicant has any agreement pertaining to such ownership by or
assistance from any foreign government or instrumentality thereof.
(5) List all existing contracts that the applicant has with any
foreign government, or any foreign private concerns, relating to any
purchase, sale or delivery of electric energy.
(6) A showing, including a signed opinion of counsel, that the
construction, connection, operation, or maintenance of the proposed
facility is within the corporate power of the applicant, and that the
applicant has complied with or will comply with all pertinent Federal
and State laws;
(b) Information regarding the transmission lines to be covered by
the Presidential Permit. (1)(i) A technical description providing the
following information: (A) Number of circuits, with identification as to
whether the circuit is overhead or underground; (B) the operating
voltage and frequency; and (C) conductor size, type and number of
conductors per phase.
(ii) If the proposed interconnection is an overhead line the
following additional information must also be provided: (A) The wind and
ice loading design parameters; (B) a full description and drawing of a
typical supporting structure including strength specifications; (C)
structure spacing with typical ruling and maximum spans; (D) conductor
(phase) spacing; and (E) the designed line to ground and conductor side
clearances.
(iii) If an underground or underwater interconnection is proposed,
the following additional information must also be provided: (A) Burial
depth; (B) type of cable and a description of any required supporting
equipment, such as insulation medium pressurizing or forced cooling; and
(C) cathodic protection scheme. Technical diagrams which
[[Page 39]]
provide clarification of any of the above items should be included.
(2) A general area map with a scale not greater than 1 inch = 40
kilometers (1 inch = 25 miles) showing the overall system, and a
detailed map at a scale of 1 inch = 8 kilometers (1 inch = 5 miles)
showing the physical location, longitude and latitude of the facility on
the international border. The map shall indicate ownership of the
facilities at or on each side of the border between the United States
and the foreign country. The maps, plans, and description of the
facilities shall distinguish the facilities or parts thereof already
constructed from those to be constructed.
(3) Applications for the bulk power supply facility which is
proposed to be operated at 138 kilovolts or higher shall contain the
following bulk power system information:
(i) Data regarding the expected power transfer capability, using
normal and short time emergency conductor ratings;
(ii) System power flow plots for the applicant's service area for
heavy summer and light spring load periods, with and without the
proposed international interconnection, for the year the line is
scheduled to be placed in service and for the fifth year thereafter. The
power flow plots submitted can be in the format customarily used by the
utility, but the ERA requires a detailed legend to be included with the
power flow plots;
(iii) Data on the line design features for minimizing television
and/or radio interference caused by operation of the subject
transmission facilities;
(iv) A description of the relay protection scheme, including
equipment and proposed functional devices;
(v) After receipt of the system power flow plots, the ERA may
require the applicant to furnish system stability analysis for the
applicant's system.
(c) Information regarding the environmental impacts shall be
provided as follows for each routing alternative:
(1) Statement of the environmental impacts of the proposed
facilities including a list of each flood plain, wetland, critical
wildlife habitat, navigable waterway crossing, Indian land, or historic
site which may be impacted by the proposed facility with a description
of proposed activities therein.
(2) A list of any known Historic Places, as specified in 36 CFR part
800, which may be eligible for the National Register of Historic Places.
(3) Details regarding the minimum right-of-way width for
construction, operation and maintenance of the transmission lines and
the rationale for selecting that right-of-way width.
(4) A list of threatened or endangered wildlife or plant life which
may be located in the proposed alternative.
(d) A brief description of all practical alternatives to the
proposed facility and a discussion of the general environmental impacts
of each alternative.
(e) The original of each application shall be signed and verified
under oath by an officer of the applicant, having knowledge of the
matters therein set forth.
Sec. 205.323 Transferability.
(a) Neither a permit issued by the ERA pursuant to Executive Order
10485, as amended, nor the facility shall be transferable or assignable.
Provided written notice is given to the ERA within 30 days, the
authorization may continue in effect temporarily in the event of the
involuntary transfer of the facility by operation of law (including
transfers to receivers, trustees, or purchases under foreclosure or
judicial sale). This continuance is contingent on the filing of an
application for a new permit and may be effective until a decision is
made thereon.
(b) In the event of a proposed voluntary transfer of the facility,
the permittee and the party to whom the transfer would be made shall
file a joint application with the ERA pursuant to this paragraph,
setting forth information as required by Sec. 205.320 et seq., together
with a statement of reasons for the transfer. The application shall be
accompanied by a filing fee pursuant to Sec. 205.326.
(c) No substantial change shall be made in any facility authorized
by permit or in the operation thereof unless or until such change has
been approved by the ERA.
(d) Permits may be modified or revoked without notice by the
President
[[Page 40]]
of the United States, or by the Administrator of the ERA after public
notice.
Sec. 205.324 Form and style; number of copies.
All applicants shall file an original and two conformed copies of
the application and all accompanying documents required under Sec. Sec.
205.320 through 205.327.
Sec. 205.325 Annual report.
Persons receiving permits to construct, connect, operate or maintain
electric transmission facilities at international boundaries shall
submit to the ERA, by February 15 each year, a report covering each
month of the preceding calendar year, detailing by category the gross
amount of kilowatt-hours of energy received or delivered and the cost
and revenue associated with each category.
Sec. 205.326 Filing procedures and fees.
Applications shall be forwarded to the Office of Utility Systems of
the Economic Regulatory Administration and shall be accompanied by a
filing fee of $150. The application fee will be charged irrespective of
the ERA's disposition of the application. Fee payment shall be by check,
draft, or money order payable to the Treasurer of the United States.
Copies of applications shall be furnished to the Federal Energy
Regulatory Commission and all affected State public utility regulatory
agencies.
Sec. 205.327 Other information.
The applicant may be required after filing the application to
furnish such supplemental information as the ERA may deem pertinent.
Such requests shall be written and a prompt response will be expected.
Protest regarding the supplying of such information should be directed
to the Administrator of the ERA.
Sec. 205.328 Environmental requirements for Presidential Permits--
Alternative 1.
(a) NEPA Compliance. Except as provided in paragraphs (c) and (e) of
this section, when an applicant seeks a Presidential Permit, such
applicant will be responsible for the costs of preparing any necessary
environmental document, including an Environmental Impact Statement
(EIS), arising from ERA's obligation to comply with the National
Environmental Policy Act of 1969 (NEPA). ERA will determine whether an
environmental assessment (EA) or EIS is required within 45 days of the
receipt of the Presidential Permit application and of environmental
information submitted pursuant to 10 CFR 205.322 (c) and (d). ERA will
use these and other sources of information as the basis for making the
environmental determination:
(1) If an EIS is determined to be necessary, the applicant shall
enter into a contract with an independent third party, which may be a
Government-owned, contractor-operated National Laboratory, or a
qualified private entity selected by ERA. The third party contractor
must be qualified to conduct an environmental review and prepare an EIS,
as appropriate, under the supervision of ERA, and may not have a
financial or other interest in the outcome of the proceedings. The NEPA
process must be completed and approved before ERA will issue a
Presidential Permit.
(2) If an EA is determined to be necessary, the applicant may be
permitted to prepare an environmental assessment pursuant to 10 CFR
1506.5(b) for review and adoption by ERA, or the applicant may enter
into a third party contract as set forth in this section.
(b) Environmental Review Procedure. Except as provided in paragraphs
(c) and (e) of this section, environmental documents, including the EIS,
where necessary, will be prepared utilizing the process set forth above.
ERA, the applicant, and the independent third party, which may be a
Government-owned, contractor-operated National Laboratory or a private
entity, shall enter into an agreement in which the applicant will engage
and pay directly for the services of the qualified third party to
prepare the necessary environmental documents. The agreement shall
outline the responsibilities of each party and its relationship to the
other two parties regarding the work to be done or supervised. ERA shall
approve the information to be developed and supervise the gathering,
analysis
[[Page 41]]
and presentation of the information. In addition, ERA will have the
authority to approve and modify any statement, analysis, and conclusion
contained in the environmental documents prepared by the third party.
Before commencing preparation of the environmental document the third
party will execute an ERA-prepared disclosure document stating that it
does not have any conflict of interest, financial or otherwise, in the
outcome of either the environmental process or the Permit application.
(c) Financial Hardship. Whenever ERA determines that a project is no
longer economically feasible, or that a substantial financial burden
would be imposed by the applicant bearing all of the costs of the NEPA
studies, ERA may waive the requirement set forth in paragraphs (a) and
(b) of this section and perform the necessary environmental review,
completely or in part, with its own resources.
(d) Discussions Prior to Filing. Prior to the preparation of any
Presidential Permit application and environmental report, a potential
applicant is encouraged to contact ERA and each affected State public
utility regulatory agency to discuss the scope of the proposed project
and the potential for joint State and Federal environmental review.
(e) Federal Exemption. Upon a showing by the applicant that it is
engaged in the transaction of official business of the Federal
Government in filing the application pursuant to 10 CFR 205.320 et seq.,
it will be exempt from the requirements of this section.
[48 FR 33819, July 25, 1983]
Sec. 205.329 Environmental requirements for Presidential Permits--
Alternative 2.
(a) NEPA Compliance. Except as provided in paragraph (b) and (e) of
this section, applicants seeking Presidential Permits will be
financially responsible for the expenses of any contractor chosen by ERA
to prepare any necessary environmental document arising from ERA's
obligation to comply with the National Environmental Policy Act of 1969
(NEPA) in issuing such Presidential Permits:
(1) ERA will determine whether an Environmental Impact Statement
(EIS) or an Environmental Assessment (EA) is required within 45 days of
receipt of the Presidential Permit application and of the environmental
information submitted pursuant to 10 CFR 205.322 (c) and (d). ERA will
use these and other sources of information as the basis for making the
environmental determination.
(2) If an EIS is determined to be necessary, ERA will notify the
applicant of the fee for completing the EIS within 90 days after the
submission of the application and environmental information. The fee
shall be based on the expenses estimated to be incurred by DOE in
contracting to prepare the EIS (i.e., the estimated fee charges to ERA
by the contractor). DOE employee salaries and other fixed costs, as set
forth in OMB Circular A-25, shall not be included in the applicant's
fee. Fee payment shall be by check, draft, or money order payable to the
Treasurer of the United States, and shall be submitted to ERA. Upon
submission of fifty percent of the environmental fee, ERA will provide
to the applicant a tentative schedule for completion of the EIS.
(3) If an EA is determined to be necessary, the applicant may be
permitted to prepare an environmental assessment pursuant to 40 CFR
1506.5(b) for review and adoption by ERA, or the applicant may choose to
have ERA prepare the EA pursuant to the fee procedures set forth above.
(4) The NEPA process must be completed and approved before ERA will
issue a Presidential Permit.
(b) Financial Hardship. Whenever ERA determines that a project is no
longer economically feasible, or that a substantial financial burden
would be imposed by the applicant bearing all of the costs of the NEPA
studies, ERA may waive the requirement set forth in paragraphs (a) and
(b) of this section and perform the necessary environmental review,
completely or in part, with its own resources.
(c) Discussions Prior to Filing. Prior to the preparation of any
Presidential Permit application and environmental
[[Page 42]]
assessment, a potential applicant is encouraged to contact ERA and each
affected State public utility regulatory agency to discuss the scope of
the proposed project and the potential for joint State and Federal
environmental review.
(d) Fee Payment. The applicant shall make fee payment for completing
the EIS to ERA in the following manner:
(1) 50 percent of the total amount due to be paid within 30 days of
receipt of the fee information from DOE;
(2) 25 percent to be paid upon publication of the draft EIS; and
(3) 25 percent to be paid upon publication of the final EIS.
If costs are less than the amount collected, ERA will refund to the
applicant the excess fee collected. If costs exceed the initial fee, ERA
will fund the balance, unless the increase in costs is caused by actions
or inactions of the applicant, such as the applicant's failure to submit
necessary environmental information in a timely fashion. If the
application is withdrawn at any stage prior to issuance of the final
EIS, the fee will be adjusted to reflect the costs actually incurred;
payment shall be made by the applicant within 30 days of above
referenced events.
(e) Federal Exemption. Upon a showing by the applicant that it is
engaged in the transaction of official business of the Federal
Government in filing an application pursuant to 10 CFR 205.320 et seq.,
it will be exempt from the requirements of this section.
[48 FR 33820, July 25, 1983]
Report of Major Electric Utility System Emergencies
Authority: Department of Energy Organization Act, Pub. L. 95-91 (42
U.S.C. 7101); Federal Power Act, Pub. L. 66-280 (16 U.S.C. 791 et seq.)
Source: Sections 205.350 through 205.353 appear at 51 FR 39745, Oct.
31, 1986, unless otherwise noted.
Sec. 205.350 General purpose.
The purpose of this rule is to establish a procedure for the Office
of International Affairs and Energy Emergencies (IE) to obtain current
information regarding emergency situations on the electric energy supply
systems in the United States so that appropriate Federal emergency
response measures can be implemented in a timely and effective manner.
The data also may be utilized in developing legislative recommendations
and reports to the Congress.
(Approved by the Office of Management and Budget under control number
1901-0288)
Sec. 205.351 Reporting requirements.
For the purpose of this section, a report or a part of a report may
be made jointly by two or more entities. Every electric utility or other
entity engaged in the generation, transmission or distribution of
electric energy for delivery and/or sale to the public shall report
promptly, through the DOE Emergency Operations Center, by telephone, the
occurrence of any event such as described in paragraphs (a) through (d)
of this section. These reporting procedures are mandatory. Entities that
fail to comply within 24 hours will be contacted and reminded of their
reporting obligation.
(a) Loss of Firm System Loads, caused by:
(1) Any load shedding actions resulting in the reduction of over 100
megawatts (MW) of firm customer load for reasons of maintaining the
continuity of the bulk electric power supply system.
(2) Equipment failures/system operational actions attributable to
the loss of firm system loads for a period in excess of 15 minutes, as
described below:
(i) Reports from entities with a previous year recorded peak load of
over 3000 MW are required for all such losses of firm loads which total
over 300 MW.
(ii) Reports from all other entities are required for all such
losses of firm loads which total over 200 MW or 50 percent of the system
load being supplied immediately prior to the incident, whichever is
less.
(3) Other events or occurrences which result in a continuous
interruption for 3 hours or longer to over 50,000 customers, or more
than 50 percent of the total customers being served immediately prior to
the interruption, whichever is less.
(b) Voltage Reductions or Public Appeals:
[[Page 43]]
(1) Reports are required for any anticipated or actual system
voltage reductions of 3 percent or greater for purposes of maintaining
the continuity of the bulk electric power supply system.
(2) Reports are required for any issuance of a public appeal to
reduce the use of electricity for purposes of maintaining the continuity
of the bulk electric power system.
(c) Vulnerabilities that could Impact System Reliability:
(1) Reports are required for any actual or suspected act(s) of
physical sabotage (not vandalism) or terrorism directed at an electric
power supply system, local or regional, in an attempt to either:
(i) Disrupt or degrade the service reliability of the local or
regional bulk electric power supply system, or
(ii) Disrupt, degrade, or deny bulk electric power service to:
(A) A specific facility (industrial, military, governmental,
private), or
(B) A specific service (transportation, communications), or
(C) A specific locality (town, city, county).
(2) Reports are required for any abnormal emergency system operating
condition(s) or other event(s) which in the judgment of the reporting
entity could or would constitute a hazard to maintaining the continuity
of the bulk electric power supply system. Examples will be provided in
the DOE pamphlet on reporting procedures.
(d) Fuel Supply Emergencies:
(1) Reports are required for any anticipated or existing fuel supply
emergency situation which would threaten the continuity of the bulk
electric power supply system, such as:
(i) Fuel stocks or hydro project water storage levels are at 50
percent (or less) of normal for that time of the year, and a continued
downward trend is projected.
(ii) Unscheduled emergency generation is dispatched causing an
abnormal use of a particular fuel type, such that the future supply or
stocks of that fuel could reach a level which threatens the reliability
or adequacy of electric service.
(Approved by the Office of Management and Budget under control number
1901-0288)
Sec. 205.352 Information to be reported.
The emergency situation data shall be supplied to the DOE Emergency
Operations Center in accordance with the current DOE pamphlet on
reporting procedures. The initial report shall include the utility name;
the area affected; the time of occurrence of the initiating event; the
duration or an estimate of the likely duration; an estimate of the
number of customers and amount of load involved; and whether any known
critical services such as hospitals, military installations, pumping
stations or air traffic control systems, were or are interrupted. To the
extent known or reasonably suspected, the report shall include a
description of the events initiating the disturbance. The DOE may
require further clarification during or after restoration of service.
(Approved by the Office of Management and Budget under control number
1901-0288)
Sec. 205.353 Special investigation and reports.
If directed by the Director, Office of Energy Emergency Operations
in writing and noticed in the Federal Register, a utility or other
subject entity experiencing a condition described in Sec. 205.351 above
shall submit a full report of the technical circumstances surrounding a
specific power system disturbance, including the restoration procedures
utilized. The report shall be filed at such times as may be directed by
the Director, Office of Energy Emergency Operations.
(Approved by the Office of Management and Budget under control number
1901-0288)
Emergency Interconnection of Electric Facilities and the Transfer of
Electricity To Alleviate an Emergency Shortage of Electric Power
Authority: Department of Energy Organization Act, Pub. L. 95-91, 91
Stat. 565 (42 U.S.C. 7101). Federal Power Act, Pub. L. 66-280, 41 Stat.
1063 (16 U.S.C. 791(a))
Source: Sections 205.370 through 205.379 appear at 46 FR 39987, Aug.
6, 1981, unless otherwise noted.
[[Page 44]]
Sec. 205.370 Applicability.
Sections 202(c) and 202(d) of the Federal Power Act are applicable
to any ``entity'' which owns or operates electric power generation,
transmission or distribution facilities. An ``entity'' is a private or
public corporation (utility), a governmental agency, a municipality, a
cooperative or a lawful association of the foregoing. Under this
section, the DOE has the authority to order the temporary connection of
facilities, or the generation or delivery of electricity, which it deems
necessary to alleviate an emergency. Such orders shall be effective for
the time specified and will be subject to the terms and conditions the
DOE specifies. The DOE retains the right to cancel, modify or otherwise
change any order, with or without notice, hearing, or report. Requests
for action under these regulations will be accepted from any ``entity,''
State Public Utility Commission, State Energy Agency, or State Governor.
Actions under these regulations also may be initiated by the DOE on its
own motion. Orders under this authority may be made effective without
prior notice.
Sec. 205.371 Definition of emergency.
``Emergency,'' as used herein, is defined as an unexpected
inadequate supply of electric energy which may result from the
unexpected outage or breakdown of facilities for the generation,
transmission or distribution of electric power. Such events may be the
result of weather conditions, acts of God, or unforeseen occurrences not
reasonably within the power of the affected ``entity'' to prevent. An
emergency also can result from a sudden increase in customer demand, an
inability to obtain adequate amounts of the necessary fuels to generate
electricity, or a regulatory action which prohibits the use of certain
electric power supply facilities. Actions under this authority are
envisioned as meeting a specific inadequate power supply situation.
Extended periods of insufficient power supply as a result of inadequate
planning or the failure to construct necessary facilities can result in
an emergency as contemplated in these regulations. In such cases, the
impacted ``entity'' will be expected to make firm arrangements to
resolve the problem until new facilities become available, so that a
continuing emergency order is not needed. Situations where a shortage of
electric energy is projected due solely to the failure of parties to
agree to terms, conditions or other economic factors relating to
service, generally will not be considered as emergencies unless the
inability to supply electric service is imminent. Where an electricity
outage or service inadequacy qualifies for a section 202(c) order,
contractual difficulties alone will not be sufficient to preclude the
issuance of an emergency order.
Sec. 205.372 Filing procedures; number of copies.
An original and two conformed copies of the applications and reports
required under Sec. Sec. 205.370 through 205.379 shall be filed with
the Division of Power Supply and Reliability, Department of Energy.
Copies of all documents also shall be served on:
(a) The Federal Energy Regulatory Commission;
(b) Any State Regulatory Agency having responsibility for service
standards, or rates of the ``entities'' that are affected by the
requested order;
(c) Each ``entity'' suggested as a potential source for the
requested emergency assistance;
(d) Any ``entity'' that may be a potential supplier of transmission
services;
(e) All other ``entities'' not covered under paragraphs (c) and (d)
of this section which may be directly affected by the requested order;
and
(f) The appropriate Regional Reliability Council.
Sec. 205.373 Application procedures.
Every application for an emergency order shall set forth the
following information as required. This information shall be considered
by the DOE in determining that an emergency exists and in deciding to
issue an order pursuant to sections 202(c) and 202(d) of the Federal
Power Act.
(a) The exact legal name of the applicant and of all other
``entities'' named in the application.
[[Page 45]]
(b) The name, title, post office address, and telephone number of
the person to whom correspondence in regard to the application shall be
addressed.
(c) The political subdivision in which each ``entity'' named in the
application operates, together with a brief description of the area
served and the business conducted in each location.
(d) Each application for a section 202(c) order shall include the
following baseline data:
(1) Daily peak load and energy requirements for each of the past 30
days and projections for each day of the expected duration of the
emergency;
(2) All capacity and energy receipts or deliveries to other electric
utilities for each of the past 30 days, indicating the classification
for each transaction;
(3) The status of all interruptible customers for each of the past
30 days and the anticipated status of these customers for each day of
the expected duration of the emergency, assuming both the granting and
the denial of the relief requested herein;
(4) All scheduled capacity and energy receipts or deliveries to
other electric utilities for each day of the expected duration of the
emergency.
(e) A description of the situation and a discussion of why this is
an emergency, including any necessary background information. This
should include any contingency plan of the applicant and the current
level of implementation.
(f) A showing that adequate electric service to firm customers
cannot be maintained without additional power transfers.
(g) A description of any conservation or load reduction actions that
have been implemented. A discussion of the achieved or expected results
or these actions should be included.
(h) A description of efforts made to obtain additional power through
voluntary means and the results of such efforts; and a showing that the
potential sources of power and/or transmission services designated
pursuant to paragraphs (i) through (k) of this section informed that the
applicant believed that an emergency existed within the meaning of Sec.
205.371.
(i) A listing of proposed sources and amounts of power necessary
from each source to alleviate the emergency and a listing of any other
``entities'' that may be directly affected by the requested order.
(j) Specific proposals to compensate the supplying ``entities'' for
the emergency services requested and to compensate any transmitting
``entities'' for services necessary to deliver such power.
(k) A showing that, to the best of the applicant's knowledge, the
requested relief will not unreasonably impair the reliability of any
``entity'' directly affected by the requested order to render adequate
service to its customers.
(l) Description of the facilities to be used to transfer the
requested emergency service to the applicant's system.
(1) If a temporary interconnection under the provisions of section
202(c) is proposed independently, the following additional information
shall be supplied for each such interconnection:
(i) Proposed location;
(ii) Required thermal capacity or power transfer capability of the
interconnection;
(iii) Type of emergency services requested, including anticipated
duration;
(iv) An electrical one line diagram;
(v) A description of all necessary materials and equipment; and
(vi) The projected length of time necessary to complete the
interconnection.
(2) If the requested emergency assistance is to be supplied over
existing facilities, the following information shall be supplied for
each existing interconnection:
(i) Location;
(ii) Thermal capacity of power transfer capability of
interconnection facilities; and
(iii) Type and duration of emergency services requested.
(m) A general or key map on a scale not greater than 100 kilometers
to the centimeter showing, in separate colors, the territory serviced by
each ``entity'' named in the application; the location of the facilities
to be used for the generation and transmission of the requested
emergency service; and all connection points between systems.
[[Page 46]]
(n) An estimate of the construction costs of any proposed temporary
facilities and a statement estimating the expected operation and
maintenance costs on an annualized basis. (Not required on section
202(d) applications.)
(o) Applicants may be required to furnish such supplemental
information as the DOE may deem pertinent.
Sec. 205.374 Responses from ``entities'' designated in the application.
Each ``entity'' designated as a potential source of emergency
assistance or as a potential supplier of transmission services and which
has received a copy of the application under Sec. 205.373, shall have
three (3) calendar days from the time of receipt of the application to
file the information designated below with the DOE. The DOE will grant
extensions of the filing period when appropriate. The designated
``entities'' shall provide an analysis of the impact the requested
action would have on its system reliability and its ability to supply
its own interruptible and firm customers. The effects of the requested
action on the ability to serve firm loads shall be clearly distinguished
from the ability to serve contractually interruptible loads. The
designated ``entity'' also may provide other information relevant to the
requested action, which is not included in the reliability analysis.
Copies of any response shall be provided to the applicant, the Federal
Energy Regulatory Commission, any State Regulatory Agency having
responsibility for service standards or rates of any ``entity'' that may
be directly involved in the proposed action, and the appropriate
Regional Electric Reliability Council. Pursuant to section 202(c) of the
Federal Power Act, DOE may issue an emergency order even though a
designated ``entity'' has failed to file a timely response.
Sec. 205.375 Guidelines defining inadequate fuel or energy supply.
An inadequate utility system fuel inventory or energy supply is a
matter of managerial and engineering judgment based on such factors as
fuels in stock, fuels en route, transportation time, and constraints on
available storage facilities. A system may be considered to have an
inadequate fuel or energy supply capability when, combined with other
conditions, the projected energy deficiency upon the applicant's system
without emergency action by the DOE, will equal or exceed 10 percent of
the applicant's then normal daily net energy for load, or will cause the
applicant to be unable to meet its normal peak load requirements based
upon use of all of its otherwise available resources so that it is
unable to supply adequate electric service to its ultimate customers.
The following conditions will be considered in determining that a system
has inadequate fuel or energy supply capability:
(1) System coal stocks are reduced to 30 days (or less) of normal
burn days and a continued downward trend in stock is projected;
(2) System residual oil stocks are reduced to 15 days (or less) of
normal burn days and a continued downward trend in stocks is projected;
(3) System distillate oil stocks which cannot be replaced by
alternate fuels are reduced to 15 days (or less) of normal burn days and
a continued downward trend in stocks is projected;
(4) System natural gas deliveries which cannot be replaced by
alternate fuels have been or will be reduced 20 percent below normal
requirements and no improvement in natural gas deliveries is projected
within 30 days;
(5) Delays in nuclear fuel deliveries will extend a scheduled
refueling shutdown by more than 30 days; and
(6) Water supplies required for power generation have been reduced
to the level where the future adequacy of the power supply may be
endangered and no near term improvement in water supplies is projected.
The use of the prescribed criteria does not preclude an applicant from
claiming the existence of an emergency when its stocks of fuel or water
exceed the amounts and time frames specified above.
Sec. 205.376 Rates and charges.
The applicant and the generating or transmitting systems from which
emergency service is requested are encouraged to utilize the rates and
charges contained in approved existing rate schedules or to negotiate
mutually satisfactory rates for the proposed
[[Page 47]]
transactions. In the event that the DOE determines that an emergency
exists under section 202(c), and the ``entities'' are unable to agree on
the rates to be charged, the DOE shall prescribe the conditions of
service and refer the rate issues to the Federal Energy Regulatory
Commission for determination by that agency in accordance with its
standards and procedures.
Sec. 205.377 Reports.
In addition to the information specified below, the DOE may require
additional reports as it deems necessary.
(a) Where the DOE has authorized the temporary connection of
transmission facilities, all ``entities'' whose transmission facilities
are thus temporarily interconnected shall report the following
information to the DOE within 15 days following completion of the
interconnection:
(1) The date the temporary interconnection was completed;
(2) The location of the interconnection;
(3) A description of the interconnection; and
(4) A one-line electric diagram of the interconnection.
(b) Where the DOE orders the transfer of power, the ``entity''
receiving such service shall report the following information to the DOE
by the 10th of each month for the preceding month's activity for as long
as such order shall remain in effect:
(1) Amounts of capacity and/or energy received each day;
(2) The name of the supplier;
(3) The name of any ``entity'' supplying transmission services; and
(4) Preliminary estimates of the associated costs.
(c) Where the DOE has approved the installation of permanent
facilities that will be used only during emergencies, any use of such
facilities shall be reported to the DOE within 24 hours. Details of such
usage shall be furnished as deemed appropriate by the DOE after such
notification.
(d) Any substantial change in the information provided under Sec.
205.373 shall be promptly reported to the DOE.
(Approved by the Office of Management and Budget under Control No. 1904-
0066)
[46 FR 39989, Aug. 6, 1981, as amended at 46 FR 63209, Dec. 31, 1981]
Sec. 205.378 Disconnection of temporary facilities.
Upon the termination of any emergency for the mitigation of which
the DOE ordered the construction of temporary facilities, such
facilities shall be disconnected and any temporary construction removed
or otherwise disposed of, unless application is made as provided in
Sec. 205.379 for permanent connection for emergency use. This
disconnection and removal of temporary facilities shall be accomplished
within 30 days of the termination of the emergency unless an extension
is granted by the DOE. The DOE shall be notified promptly when such
removal of facilities is completed.
Sec. 205.379 Application for approval of the installation
of permanent facilities for emergency use only.
Application for DOE approval of a permanent connection for emergency
use only shall conform with the requirements in Sec. 205.373. However,
the baseline data specified in Sec. 205.373(d) need not be included in
an application made under this section. In addition, the application
shall state in full the reasons why such permanent connection for
emergency use is in the public interest.
Internal Procedures for Issuance of a Grid Security Emergency Order
Source: Sections 205.380 through 205.391 were added at 83 FR 1180,
Jan. 10, 2018, unless otherwise noted.
Sec. 205.380 Definitions.
As used in this subpart:
Bulk-power system means the same as the definition of such term in
paragraph (1) of section 215(a) of the Federal Power Act.
Critical electric infrastructure means the same as the definition of
such term in paragraph (2) of section 215A(a) of the Federal Power Act.
[[Page 48]]
Defense critical electric infrastructure means the same as the
definition of such term in paragraph (4) of section 215A(a) of the
Federal Power Act.
Department means the United States Department of Energy.
Electric Reliability Organization means the same as the definition
of such term in paragraph (2) of section 215(a) of the Federal Power
Act.
Electricity Information Sharing and Analysis Center (E-ISAC) means
the organization, operated on behalf of the electricity subsector by the
Electric Reliability Organization, that gathers and analyzes security
information, coordinates incident management, and communicates
mitigation strategies with stakeholders within the electricity
subsector, across interdependent sectors, and with government partners.
The E-ISAC, in collaboration with the Department of Energy and the
Electricity Subsector Coordinating Council, serves as the primary
security communications channel for the electricity subsector and
enhances the subsector's ability to prepare for and respond to cyber and
physical threats, vulnerabilities, and incidents.
Electricity subsector means both commercial and industrial actors
who generate and deliver electric power.
Electricity Subsector Coordinating Council (ESCC) means the
organization that aims to foster and facilitate the coordination of
sector-wide, policy-related activities and initiatives designed to
improve the reliability and resilience of the electricity subsector,
including physical and cyber security infrastructure.
Electromagnetic pulse means the same as the definition of such term
in paragraph (5) of section 215A(a) of the Federal Power Act.
Emergency & Incident Management Council (EIMC) means the
organization, internal to the Department of Energy and chaired by the
Deputy Secretary of Energy, designed to increase cooperation and
coordination across the Department to prepare for, mitigate, respond to,
and recover from emergencies.
Emergency measures means measures necessary in the judgment of the
Secretary to protect or restore the reliability of critical electric
infrastructure or of defense critical electric infrastructure during a
grid security emergency as defined in section 215A(a) of the Federal
Power Act.
Emergency order means an order for emergency measures under section
215A(b) of the Federal Power Act.
Geomagnetic storm means a temporary disturbance of the Earth's
magnetic field resulting from solar activity.
Grid security emergency means the same as the definition of such
term in paragraph (7) of section 215A(a) of the Federal Power Act. A
grid security emergency is ``declared'' once the President of the United
States has issued and provided to the Secretary a written directive or
determination identifying the emergency.
Regional entity means an entity having enforcement authority under
section 215(e)(4) of the Federal Power Act, 16 U.S.C. 824o(e)(4).
Secretary means the Secretary of Energy.
Sec. 205.381 Applicability of emergency orders.
An order for emergency measures under section 215A(b) of the Federal
Power Act (emergency order) may apply to the Electric Reliability
Organization, a regional entity or entities, or any owner, user, or
operator of critical electric infrastructure or of defense critical
electric infrastructure within the United States. Emergency measures may
be issued if deemed necessary in the judgment of the Secretary to
protect or restore the reliability of critical electric infrastructure
or of defense critical electric infrastructure during a presidentially-
declared grid security emergency.
Sec. 205.382 Issuing an emergency order.
(a) The Secretary will use the procedures outlined in this section
in issuing emergency orders, unless the Secretary determines that
alternative procedures are more appropriate for the unique circumstances
presented by the emergency. In all instances, the Secretary has final
authority on the procedures to be used in issuing an emergency order.
(b) Upon the Department's receipt of the President's written
directive or determination identifying a grid security
[[Page 49]]
emergency, the Emergency & Incident Management Council (EIMC) will
convene at least one emergency meeting. Resulting from this meeting, the
EIMC's responsibilities will include, but not be limited to:
(1) Assigning consultation and situational awareness tasks;
(2) Creating ad hoc task groups;
(3) Assigning recommendation development tasks to the ad hoc task
groups it has created; and
(4) Presenting its recommendations to the Secretary as expeditiously
as possible and practicable.
(c) Following receipt of the EIMC's recommendations, unless the
Secretary has determined alternative procedures are appropriate, the
Secretary will issue an emergency order as quickly as the Secretary
determines that the situation requires.
Sec. 205.383 Consultation.
(a) To obtain information related to a particular grid security
emergency and recommended emergency measures from those government
entities, electric reliability organizations, and private sector
companies, and their respective associations where applicable, affected
by the emergency, the office that is delegated the authority by the
Secretary will conduct consultation related to each emergency order.
Before an emergency order is put into effect and, to the extent
practicable in light of the nature of the grid security emergency and
the urgency of the need for action, efforts will be made to consult with
at least the following, as appropriate:
(1) The Electricity Subsector Coordinating Council;
(2) The Electricity Information Sharing and Analysis Center;
(3) The Electric Reliability Organization;
(4) Regional entities; and
(5) Owners, users, or operators of critical electric infrastructure
or of defense critical electric infrastructure within the United States;
and
(6) At least the following government entities:
(i) Authorities in the government of Canada;
(ii) Authorities in the government of Mexico;
(iii) Appropriate Federal and State agencies including, but not
limited to, those supporting Emergency Support Function No. 12;
(iv) The Federal Energy Regulatory Commission; and
(v) The Nuclear Regulatory Commission.
(b) The Department recognizes the expertise of electric grid owners
and operators and other consulted entities in seeking to ensure that
emergency orders result in the safe and effective operation of the
electric grid, align with additional priorities including evidence
collection, and comply with existing regulatory requirements, where
required. The Department will endeavor, to the extent practicable, to
conduct consultation in alignment with the existing Emergency Support
Function No. 12 structure and established emergency management processes
under the National Response Framework.
[83 FR 1180, Jan. 10, 2018, as amended at 85 FR 3232, Jan. 21, 2020]
Sec. 205.384 Communication of orders.
The Department will communicate the contents of an emergency order
to the entities subject to the order, utilizing the most expedient form
or forms of communication under the circumstances. The Department will
attempt to conduct communication of emergency orders in alignment with
the existing Emergency Support Function No. 12 structure and established
emergency management procedures under the National Response Framework by
relying on existing coordinating bodies, such as the ESCC and the E-
ISAC, and, recognizing the existence of established crisis communication
procedures, any other form or forms of communication most expedient
under the particular circumstances. To the extent practicable under the
particular circumstances, efforts will be made to declassify eligible
information to ensure maximum distribution.
Sec. 205.385 Clarification or reconsideration.
(a) Any entity subject to an emergency order may request
clarification or reconsideration of the emergency
[[Page 50]]
order. All such requests must be submitted in writing to the Secretary.
The Department will post all such requests on the DOE website consistent
with 10 CFR part 1004. To the extent the ordered entity believes the
grid security emergency order lacks necessary clarity for
implementation, or conflicts with the technically feasible operations of
the electric grid or existing regulatory requirements, the ordered
entity should seek immediate clarification from the Department.
(b) Upon receipt of a request for clarification or reconsideration,
the Secretary may, in his or her sole discretion, order a stay of the
emergency order for which such clarification or rehearing is sought. The
Secretary will act as soon as practicable on each request, with or
without further proceedings. Such responsive actions may include
granting or denying the request or abrogating or modifying the order, in
whole or in part.
Sec. 205.386 Temporary access to classified and sensitive information.
(a) To the extent practicable, and consistent with obligations to
protect classified and sensitive information, the Secretary may provide
temporary access to classified and sensitive information, at the level
necessary in light of the conditions of the incident, related to a grid
security emergency for which emergency measures are issued to key
personnel of any entity subject to such emergency measures, to the
extent the Secretary deems necessary under the circumstances. The
purpose of this access, as defined under section 215A(b)(7) of the
Federal Power Act, is to enable optimum communication between the entity
and the Secretary and other appropriate Federal agencies regarding the
grid security emergency.
(b) CEII will be shared, where deemed necessary by the Secretary, in
accordance with 10 CFR part 1004.
Sec. 205.387 Tracking compliance.
Beginning at the time the Secretary issues an emergency order, the
Department may, at the discretion of the Secretary, require the entity
or entities subject to an emergency order to provide a detailed account
of actions taken to comply with the terms of the emergency order.
Sec. 205.388 Enforcement.
In accordance with available enforcement authorities, the Secretary
may take or seek enforcement action against any entity subject to an
emergency order who fails to comply with the terms of that emergency
order.
Sec. 205.389 Rehearing and judicial review.
The procedures of Part III of the Federal Power Act apply to motions
for rehearing of an emergency order. A request for clarification or
reconsideration filed under Sec. 205.385 of this subpart, if the
filling entity so designates, may serve as a request for rehearing
pursuant to section 313(a) of the Federal Power Act.
Sec. 205.390 Liability exemptions.
(a) To the extent any action or omission taken by an entity that is
necessary to comply with an emergency order issued pursuant to section
215A(b)(1) of the Federal Power Act and this Part, including any action
or omission taken to voluntarily comply with such order, results in
noncompliance with, or causes such entity not to comply with any rule,
order, regulation, or provision of or under the Federal Power Act,
including any reliability standard approved by the Federal Energy
Regulatory Commission pursuant to section 215 of the Federal Power Act,
the Department will not consider such action or omission to be a
violation of such rule, order, regulation, or provision.
(b) The Department will treat an action or omission by an owner,
operator, or user of critical electric infrastructure or of defense
critical electric infrastructure to comply with an emergency order
issued pursuant to section 215A(b)(1) of the Federal Power Act as the
functional equivalent of an action or omission taken to comply with an
order issued under section 202(c) of the Federal Power Act for purposes
of section 202(c).
(c) The liability exemptions specified in paragraphs (a) and (b) of
this section do not apply to an entity that, in the course of complying
with an emergency
[[Page 51]]
order by taking an action or omission for which the entity would
otherwise be liable, takes such action or omission in a grossly
negligent manner.
Sec. 205.391 Termination of an emergency order.
(a) An emergency order will expire no later than 15 days after its
issuance. The Secretary may reissue an emergency order for subsequent
periods, not to exceed 15 days for each such period, provided that the
President, for each such period, issues and provides to the Secretary a
written directive or determination that the grid security emergency for
which the Secretary intends to reissue an emergency order continues to
exist or that the emergency measures continue to be required.
(b) The Secretary may rescind an emergency order after finding that
the grid security emergency for which that order was issued has ended,
and that protective or mitigation measures required by that order have
been sufficiently taken.
(c) An entity or entities subject to an emergency order issued under
this subpart may, at any time, request termination of the emergency
order by demonstrating, in a petition to the Secretary, that the
emergency no longer exists and that protective or mitigation measures
required by the order have been sufficiently taken.
PART 207_COLLECTION OF INFORMATION--Table of Contents
Subpart A_Collection of Information Under the Energy Supply and
Environmental Coordination Act of 1974
Sec.
207.1 Purpose.
207.2 Definitions.
207.3 Method of collecting energy information under ESECA.
207.4 Confidentiality of energy information.
207.5 Violations.
207.6 Notice of probable violation and remedial order.
207.7 Sanctions.
207.8 Judicial actions.
207.9 Exceptions, exemptions, interpretations, rulings and rulemaking.
Authority: 15 U.S.C. 787 et seq.; 15 U.S.C. 791 et seq.; E.O. 11790,
39 FR 23185; 28 U.S.C. 2461 note.
Source: 40 FR 18409, Apr. 28, 1975, unless otherwise noted.
Subpart A_Collection of Information Under the Energy Supply and
Environmental Coordination Act of 1974
Sec. 207.1 Purpose.
The purpose of this subpart is to set forth the manner in which
energy information which the Administrator is authorized to obtain by
sections 11 (a) and (b) of ESECA will be collected.
Sec. 207.2 Definitions.
As used in this subpart:
Administrator means the Federal Energy Administrator of his
delegate.
Energy information includes all information in whatever form on (1)
fuel reserves, exploration, extraction, and energy resources (including
petrochemical feedstocks) wherever located; (2) production,
distribution, and consumption of energy and fuels, wherever carried on;
and (3) matters relating to energy and fuels such as corporate structure
and proprietary relationships, costs, prices, capital investment, and
assets, and other matters directly related thereto, wherever they exist.
ESECA means the Energy Supply and Environmental Coordination Act of
1974 (Pub. L. 93-319).
EPAA means the Emergency Petroleum Allocation Act of 1973 (Pub. L.
93-159).
DOE means the Department of Energy.
Person means any natural person, corporation, partnership,
association, consortium, or any entity organized for a common business
purpose, wherever situated, domiciled, or doing business, who directly
or through other persons subject to their control does business in any
part of the United States.
United States, when used in the geographical sense, means the
States, the District of Columbia, Puerto Rico, and the territories and
possessions of the United States.
Sec. 207.3 Method of collecting energy information under ESECA.
(a) Whenever the Administrator determines that:
[[Page 52]]
(1) Certain energy information is necessary to assist in the
formulation of energy policy or to carry out the purposes of the ESECA
of the EPAA; and
(2) Such energy information is not available to DOE under the
authority of statutes other than ESECA or that such energy information
should, as a matter of discretion, be collected under the authority of
ESECA;
He shall require reports of such information to be submitted to DOE at
least every ninety calendar days.
(b) The Administrator may require such reports of any person who is
engaged in the production, processing, refining, transportation by
pipeline, or distribution (at other than the retail level) of energy
resources.
(c) The Administrator may require such reports by rule, order,
questionnaire, or such other means as he determines appropriate.
(d) Whenever reports of energy information are requested under this
subpart, the rule, order, questionnaire, or other means requesting such
reports shall contain (or be accompanied by) a recital that such reports
are being requested under the authority of ESECA.
(e) In addition to requiring reports, the Administrator may, at his
discretion, in order to obtain energy information under the authority of
ESECA:
(1) Sign and issue subpoenas in accordance with the provisions of
Sec. 205.8 of this chapter for the attendance and testimony of
witnesses and the production of books, records, papers, and other
documents;
(2) Require any person, by rule or order, to submit answers in
writing to interrogatories, requests for reports or for other
information, with such answers or other submissions made within such
reasonable period as is specified in the rule or order, and under oath;
and
(3) Administer oaths.
Any such subpoena or rule or order shall contain (or be accompanied by)
a recital that energy information is requested under the authority of
ESECA.
(f) For the purpose of verifying the accuracy of any energy
information requested, acquired, or collected by the DOE, the
Administrator, or any officer or employee duly designated by him, upon
presenting appropriate credentials and a written notice from the
Administrator to the owner, operator, or agent in charge, may--
(1) Enter, at reasonable times, any business premise of facility;
and
(2) Inspect, at reasonable times and in a reasonable manner, any
such premise or facility, inventory and sample any stock of energy
resources therein, and examine and copy books, records, papers, or other
documents, relating to any such energy information.
Such written notice shall reasonably describe the premise or facility to
be inspected, the stock to be inventoried or sampled, or the books,
records, papers or other documents to be examined or copied.
Sec. 207.4 Confidentiality of energy information.
(a) Information obtained by the DOE under authority of ESECA shall
be available to the public in accordance with the provisions of part 202
of this chapter. Upon a showing satisfactory to the Administrator by any
person that any energy information obtained under this subpart from such
person would, if made public, divulge methods or processes entitled to
protection as trade secrets or other proprietary information of such
person, such information, or portion thereof, shall be deemed
confidential in accordance with the provisions of section 1905 of title
18, United States Code; except that such information, or part thereof,
shall not be deemed confidential pursuant to that section for purposes
of disclosure, upon request, to (1) any delegate of the DOE for the
purpose of carrying out ESECA or the EPAA, (2) the Attorney General, the
Secretary of the Interior, the Federal Trade Commission, the Federal
Power Commission, or the General Accounting Office, when necessary to
carry out those agencies' duties and responsibilities under ESECA and
other statutes, and (3) the Congress, or any Committee of Congress upon
request of the Chairman.
(b) Whenever the Administrator requests reports of energy
information under this subpart, he may specify (in the rule, order or
questionnaire or other means by which he has requested
[[Page 53]]
such reports) the nature of the showing required to be made in order to
satisfy DOE that certain energy information contained in such reports
warrants confidential treatment in accordance with this section. He
shall, to the maximum extent practicable, either before or after
requesting reports, by ruling or otherwise, inform respondents providing
energy information pursuant to this subpart of whether such information
will be made available to the public pursuant to requests under the
Freedom of Information Act (5 U.S.C. 552).
Sec. 207.5 Violations.
Any practice that circumvents or contravenes or results in a
circumvention or contravention of the requirements of any provision of
this subpart or any order issued pursuant thereto is a violation of the
DOE regulations stated in this subpart.
Sec. 207.6 Notice of probable violation and remedial order.
(a) Purpose and scope. (1) This section establishes the procedures
for determining the nature and extent of violations of this subpart and
the procedures for issuance of a notice of probable violation, a
remedial order or a remedial order for immediate compliance.
(2) When the DOE discovers that there is reason to believe a
violation of any provision of this subpart, or any order issued
thereunder, has occurred, is continuing or is about to occur, the DOE
may conduct proceedings to determine the nature and extent of the
violation and may issue a remedial order thereafter. The DOE may
commence such proceeding by serving a notice of probable violation or by
issuing a remedial order for immediate compliance.
(b) Notice of probable violation. (1) The DOE may begin a proceeding
under this subpart by issuing a notice of probable violation if the DOE
has reason to believe that a violation has occurred, is continuing, or
is about to occur.
(2) Within 10 days of the service of a notice of probable violation,
the person upon whom the notice is served may file a reply with the DOE
office that issued the notice of probable violation at the address
provided in Sec. 205.12 of this chapter. The DOE may extend the 10-day
period for good cause shown.
(3) The reply shall be in writing and signed by the person filing
it. The reply shall contain a full and complete statement of all
relevant facts pertaining to the act or transaction that is the subject
of the notice of probable violation. Such facts shall include a complete
statement of the business or other reasons that justify the act or
transaction, it appropriate; a detailed description of the act or
transaction; and a full discussion of the pertinent provisions and
relevant facts reflected in any documents submitted with the reply.
Copies of all relevant documents shall be submitted with the reply.
(4) The reply shall include a discussion of all relevant
authorities, including, but not limited to, DOE rulings, regulations,
interpretations, and decisions on appeals and exceptions relied upon to
support the particular position taken.
(5) The reply should indicate whether the person requests or intends
to request a conference regarding the notice. Any request not made at
the time of the reply shall be made as soon thereafter as possible to
insure that the conference is held when it will be most beneficial. A
request for a conference must conform to the requirements of subpart M
of part 205 of this chapter.
(6) If a person has not filed a reply with the DOE within the 10-day
period provided, and the DOE has not extended the 10-day period, the
person shall be deemed to have conceded the accuracy of the factual
allegations and legal conclusions stated in the notice of probable
violation.
(7) If the DOE finds, after the 10-day period provided in Sec.
207.6(b)(2), that no violation has occurred, is continuing, or is about
to occur, or that for any reason the issuance of a remedial order would
not be appropriate, it shall notify, in writing, the person to whom a
notice of probable violation has been issued that the notice is
rescinded.
(c) Remedial order. (1) If the DOE finds, after the 10-day period
provided in Sec. 207.6(b)(2), that a violation has occurred, is
continuing, or is about to occur, the DOE may issue a remedial
[[Page 54]]
order. The order shall include a written opinion setting forth the
relevant facts and the legal basis of the remedial order.
(2) A remedial order issued under this subpart shall be effective
upon issuance, in accordance with its terms, until stayed, suspended,
modified or rescinded. The DOE may stay, suspend, modify or rescind a
remedial order on its own initiative or upon application by the person
to whom the remedial order is issued. Such action and application shall
be in accordance with the procedures for such proceedings provided for
in part 205 of this chapter.
(3) A remedial order may be referred at any time to the Department
of Justice for appropriate action in accordance with Sec. 207.7.
(d) Remedial order for immediate compliance. (1) Notwithstanding
paragraphs (b) and (c) of this section, the DOE may issue a remedial
order for immediate compliance, which shall be effective upon issuance
and until rescinded or suspended, if it finds:
(i) There is a strong probability that a violation has occurred, is
continuing or is about to occur;
(ii) Irreparable harm will occur unless the violation is remedied
immediately; and
(iii) The public interest requires the avoidance of such irreparable
harm through immediate compliance and waiver of the procedures afforded
under paragraphs (b) and (c) of this section.
(2) A remedial order for immediate compliance shall be served
promptly upon the person against whom such order is issued by telex or
telegram, with a copy served by registered or certified mail. The copy
shall contain a written statement of the relevant facts and the legal
basis for the remedial order for immediate compliance, including the
findings required by paragraph (d)(1) of this section.
(3) The DOE may rescind or suspend a remedial order for immediate
compliance if it appears that the criteria set forth in paragraph (d)(1)
of this section are no longer satisfied. When appropriate, however, such
a suspension or rescission may be accompanied by a notice of probable
violation issued under paragraph (b) of this section.
(4) If at any time in the course of a proceeding commenced by a
notice of probable violation the criteria set forth in paragraph (d)(1)
of this section are satisfied, the DOE may issue a remedial order for
immediate compliance, even if the 10-day period for reply specified in
Sec. 207.6(b)(2) of this part has not expired.
(5) At any time after a remedial order for immediate compliance has
become effective the DOE may refer such order to the Department of
Justice for appropriate action in accordance with Sec. 207.7 of this
part.
(e) Remedies. A remedial order or a remedial order for immediate
compliance may require the person to whom it is directed to take such
action as the DOE determines is necessary to eliminate or to compensate
for the effects of a violation.
(f) Appeal. (1) No notice of probable violation issued pursuant to
this subpart shall be deemed to be an action of which there may be an
administrative appeal.
(2) Any person to whom a remedial order or a remedial order for
immediate compliance is issued under this subpart may file an appeal
with the DOE Office of Exceptions and Appeals in accordance with the
procedures for such appeal provided in subpart H of part 205 of this
chapter. The appeal must be filed within 10 days of service of the order
from which the appeal is taken.
Sec. 207.7 Sanctions.
(a) General. (1) Penalties and sanctions shall be deemed cumulative
and not mutually exclusive.
(2) Each day that a violation of the provisions of this subpart or
any order issued pursuant thereto continues shall be deemed to
constitute a separate violation within the meaning of the provisions of
this subpart relating to criminal fines and civil penalties.
(b) Criminal penalties. Any person who willfully violates any
provision of this subpart or any order issued pursuant thereto shall be
subject to a fine of not more than $5,000 for each violation. Criminal
violations are prosecuted by the Department of Justice upon referral by
the DOE.
[[Page 55]]
(c) Civil Penalties. (1) Any person who violates any provision of
this subpart or any order issued pursuant thereto shall be subject to a
civil penalty of not more than $10,821 for each violation. Actions for
civil penalties are prosecuted by the Department of Justice upon
referral by the DOE.
(2) When the DOE considers it to be appropriate or advisable, the
DOE may compromise and settle, and collect civil penalties.
[40 FR 18409, Apr. 28, 1975, as amended at 62 FR 46183, Sept. 2, 1997;
74 FR 66032, Dec. 14, 2009; 81 FR 41793, June 28, 2016; 81 FR 96351,
Dec. 30, 2016; 83 FR 1291, Jan. 11, 2018; 83 FR 66082, Dec. 26, 2018; 85
FR 829, Jan. 8, 2020]
Sec. 207.8 Judicial actions.
(a) Enforcement of subpoenas; contempt. Any United States district
court within the jurisdiction of which any inquiry is carried on may,
upon petition by the Attorney General at the request of the
Administrator, in the case of refusal to obey a subpoena or order of the
Administrator issued under this subpart, issue an order requiring
compliance. Any failure to obey such an order of the court may be
punished by the court as contempt.
(b) Injunctions. Whenever it appears to the Administrator that any
person has engaged, is engaged, or is about to engage in any act or
practice constituting a violation of any regulation or order issued
under this subpart, the Administrator may request the Attorney General
to bring a civil action in the appropriate district court of the United
States to enjoin such acts or practices and, upon a proper showing, a
temporary restraining order or preliminary or permanent injunction shall
be granted without bond. The relief sought may include a mandatory
injunction commanding any person to comply with any provision of such
order or regulation, the violation of which is prohibited by section
12(a) of ESECA, as implemented by this subpart.
Sec. 207.9 Exceptions, exemptions, interpretations, rulings and rulemaking.
Applications for exceptions, exemptions or requests for
interpretations relating to this subpart shall be filed in accordance
with the procedures provided in subparts D, E and F, respectively, of
part 205 of this chapter. Rulings shall be issued in accordance with the
procedures of subpart K of part 205 of this chapter. Rulemakings shall
be undertaken in accordance with the procedures provided in subpart L of
part 205 of this chapter.
PART 209_INTERNATIONAL VOLUNTARY AGREEMENTS--Table of Contents
Subpart A_General Provisions
Sec.
209.1 Purpose and scope.
209.2 Delegation.
209.3 Definitions.
Subpart B_Development of Voluntary Agreements
209.21 Purpose and scope.
209.22 Initiation of meetings.
209.23 Conduct of meetings.
209.24 Maintenance of records.
Subpart C_Carrying Out of Voluntary Agreements and Developing and
Carrying Out of Plans of Actions
209.31 Purpose and scope.
209.32 Initiation of meetings.
209.33 Conduct of meetings.
209.34 Maintenance of records.
Subpart D_Availability of Information Relating to Meetings and
Communications
209.41 Availability of information relating to meetings and
communications.
Authority: Federal Energy Administration Act of 1974, Pub. L. 93-
275; E.O. 11790, 39 FR 23185; Energy Policy and Conservation Act, Pub.
L. 94-163.
Source: 41 FR 6754, Feb. 13, 1976, unless otherwise noted.
Subpart A_General Provisions
Sec. 209.1 Purpose and scope.
This part implements the provisions of the Energy Policy and
Conservation Act (EPCA) authorizing the Administrator to prescribe
standards and procedures by which persons engaged in the business of
producing, transporting, refining, distributing, or storing petroleum
may develop and carry out voluntary agreements, and plans of action
which are required to implement the information and allocation
[[Page 56]]
provisions of the International Energy Program (IEP). The requirements
of this part do not apply to activities other than those for which
section 252 of EPCA makes available a defense to the antitrust laws.
Sec. 209.2 Delegation.
To the extent otherwise permitted by law, any authority, duty, or
responsibility vested in DOE or the Administrator under these
regulations may be delegated to any regular full-time employee of the
Department of Energy, and, by agreement, to any regular full-time
employee of the Department of Justice or the Department of State.
Sec. 209.3 Definitions.
For purposes of this part--
(a) Administrator means the Administrator of the Department of
Energy.
(b) Information and allocation provisions of the International
Energy Program means the provisions of chapter V of the Program relating
to the Information System, and the provisions at chapters III and IV
thereof relating to the international allocation of petroleum.
(c) International Energy Agency (IEA) means the International Energy
Agency established by Decision of the Council of the Organization for
Economic Cooperation and Development, dated November 15, 1974.
(d) International Energy Program (IEP) means the program established
pursuant to the Agreement on an International Energy Program signed at
Paris on November 18, 1974, including (1) the Annex entitled ``Emergency
Reserves'', (2) any amendment to such Agreement which includes another
nation as a Party to such Agreement, and (3) any technical or clerical
amendment to such Agreement.
(e) International energy supply emergency means any period (1)
beginning on any date which the President determines allocation of
petroleum products to nations participating in the international energy
program is required by chapters III and IV of such program, and (2)
ending on a date on which he determines such allocation is no longer
required. Such a period shall not exceed 90 days, except where the
President establishes one or more additional periods by making the
determination under paragraph (e)(1) of this section.
(f) Potential participant means any person engaged in the business
of producing, transporting, refining, distributing, or storing petroleum
products; ``participant'' means any such person who agrees to
participate in a voluntary agreement pursuant to a request to do so by
the Administrator.
(g) Petroleum or petroleum products means crude oil, residual fuel
oil, or any refined petroleum product (including any natural gas liquid
and any natural gas liquid product).
Subpart B_Development of Voluntary Agreements
Sec. 209.21 Purpose and scope.
(a) This subpart establishes the standards and procedures by which
persons engaged in the business of producing, transporting, refining,
distributing. or storing petroleum products shall develop voluntary
agreements which are required to implement the allocation and
information provisions of the International Energy Program.
(b) This subpart does not apply to meetings of bodies created by the
International Energy Agency.
Sec. 209.22 Initiation of meetings.
(a) Any meeting held for the purpose of developing a voluntary
agreement involving two or more potential participants shall be
initiated and chaired by the Administrator or other regular full-time
Federal employee designated by him.
(b) DOE shall provide notice of meetings held pursuant to this
subpart, in writing, to the Attorney General, the Federal Trade
Commission, and to the Speaker of the House and the President of the
Senate for delivery to the appropriate committees of Congress, and to
the public through publication in the Federal Register. Such notice
shall identify the time, place, and agenda of the meeting, and such
other matters as the Administrator deems appropriate. Notice in the
Federal Register shall be published at least seven days prior to the
date of the meeting.
[[Page 57]]
Sec. 209.23 Conduct of meetings.
(a) Meetings to develop a voluntary agreement held pursuant to this
subpart shall be open to all interested persons. Interested persons
desiring to attend meetings under this subpart may be required pursuant
to notice to advise the Administrator in advance.
(b) Interested persons may, as set out in notice provided by the
Administrator, present data, views, and arguments orally and in writing,
subject to such reasonable limitations with respect to the manner of
presentation as the Administrator may impose.
Sec. 209.24 Maintenance of records.
(a) The Administrator shall keep a verbatim transcript of any
meeting held pursuant to this subpart.
(b)(1) Except as provided in paragraphs (b) (2) through (4) of this
section, potential participants shall keep a full and complete record of
any communications (other than in a meeting held pursuant to this
subpart) between or among themselves for the purpose of developing a
voluntary agreement under this part. When two or more potential
participants are involved in such a communication, they may agree among
themselves who shall keep such record. Such record shall include the
names of the parties to the communication and the organizations, if any,
which they represent; the date of the communication; the means of
communication; and a description of the communication in sufficient
detail to convey adequately its substance.
(2) Where any communication is written (including, but not limited
to, telex, telegraphic, telecopied, microfilmed and computer printout
material), and where such communication demonstrates on it face that the
originator or some other source furnished a copy of the communication to
the Office of International Affairs, Department of Energy with the
notation ``Voluntary Agreement'' marked on the first page of the
document, no participant need record such a communication or send a
further copy to the Department of Energy. The Department of Energy may,
upon written notice to potential participants, from time to time, or
with reference to particular types of documents, require deposit with
other offices or officials of the Department of Energy. Where such
communication demonstrates that it was sent to the Office of
International Affairs, Department of Energy with the notation
``Voluntary Agreement'' marked on the first page of the document, or
such other offices or officials in the Department of Energy has
designated pursuant to this section it shall satisfy paragraph (c) of
this section, for the purpose of deposit with the Department of Energy.
(3) To the extent that any communication is procedural,
administrative or ministerial (for example, if it involves the location
of a record, the place of a meeting, travel arrangements, or similar
matters), only a brief notation of the date, time, persons involved and
description of the communication need be recorded.
(4) To the extent that any communication involves matters which
recapitulate matters already contained in a full and complete record,
the substance of such matters shall be identified, but need not be
recorded in detail, provided that reference is made to the record and
the portion thereof in which the substance is fully set out.
(c) Except where the Department of Energy otherwise provides, all
records and transcripts prepared pursuant to paragraphs (a) and (b) of
this section, shall be deposited within fifteen (15) days after the
close of the month of their preparation together with any agreement
resulting therefrom, with the Department of Energy, and shall be
available to the Department of Justice, the Federal Trade Commission,
and the Department of State. Such records and transcripts shall be
available for public inspection and copying to the extent set forth in
subpart D. Any person depositing material pursuant to this section shall
indicate with particularity what portions, if any, the person believes
are subject to disclosure to the public pursuant to subpart D and the
reasons for such belief.
(d) Any meeting between a potential participant and an official of
DOE for the purpose of developing a voluntary agreement shall, if not
otherwise required to be recorded pursuant to this
[[Page 58]]
section, be recorded by such official as provided in Sec. 204.5.
(Approved by the Office of Management and Budget under Control No. 1905-
0079)
(Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended,
E.O. 11790, 39 FR 23185; E. O. 11930, 41 FR 32397; Energy Policy and
Conservation Act, Pub. L. 94-163; E.O. 11912, 41 FR 15825; Department of
Energy Organization Act, Pub. L. 95-91; 91 Stat. 565; E.O. 12009, 42 FR
46267)
[41 FR 6754, Feb. 13, 1976, as amended at 43 FR 12854, Mar. 28, 1978; 46
FR 63209, Dec. 31, 1981]
Subpart C_Carrying Out of Voluntary Agreements and Developing and
Carrying Out of Plans of Actions
Sec. 209.31 Purpose and scope.
This subpart establishes the standards and procedures by which
persons engaged in the business of producing, transporting, refining,
distributing, or storing petroleum products shall carry out voluntary
agreements and develop and carry out plans of action which are required
to implement the allocation and information provisions of the
International Energy Program.
Sec. 209.32 Initiation of meetings.
(a) Except for meetings of bodies created by the International
Energy Agency, any meeting among participants in a voluntary agreement
pursuant to this subpart, for the purpose of carrying out such voluntary
agreement or developing or carrying out a plan of action pursuant
thereto, shall be initiated and chaired by a full-time Federal employee
designated by the Administrator.
(b) Except as provided in paragraph (c) of this section, the
Administrator shall provide notice of meetings held pursuant to this
subpart, in writing, to the Attorney General, the Federal Trade
Commission, and to the Speaker of the House and the President of the
Senate for delivery to the appropriate committees of Congress. Except
during an international energy supply emergency, notice shall also be
provided to the public through publication in the Federal Register. Such
notice shall identify the time, place, and agenda of the meeting. Notice
in the Federal Register shall be published at least seven days prior to
the date of the meeting unless emergency circumstances, IEP requirements
or other unanticipated circumstances require the period to be shortened.
(c) During an international energy supply emergency, advance notice
shall be given to the Attorney General, the Federal Trade Commission and
to the Speaker of the House and the President of the Senate for delivery
to the appropriate committees of Congress. Such notice may be telephonic
or by such other means as practicable, and shall be confirmed in
writing.
Sec. 209.33 Conduct of meetings.
(a) Subject to the provisions of paragraph (c) of this section,
meetings held to carry out a voluntary agreement, or to develop or carry
out a plan of action pursuant to this subpart, shall be open to all
interested persons, subject to limitations of space. Interested persons
desiring to attend meetings under this subpart may be required to advise
the Administrator in advance.
(b) Interested persons permitted to attend meetings under this
section may present data, views, and arguments orally and in writing,
subject to such limitations with respect to the manner of presentation
as the Administrator may impose.
(c) Meetings held pursuant to this subpart shall not be open to the
public to the extent that the President or his delegate finds that
disclosure of the proceedings beyond those authorized to attend would be
detrimental to the foreign policy interests of the United States, and
determines, in consultation with the Administrator, the Secretary of
State, and the Attorney General, that a meeting shall not be open to
interested persons or that attendance by interested persons shall be
limited.
(d) The requirements of this section do not apply to meetings of
bodies created by the International Energy Agency except that no
participant in a voluntary agreement may attend any meeting of any such
body held to carry out a voluntary agreement or to develop or to carry
out a plan of action unless a full-time Federal employee is present.
[[Page 59]]
Sec. 209.34 Maintenance of records.
(a) The Administrator or his delegate shall keep a verbatim
transcript of any meeting held pursuant to this subpart except where (1)
due to considerations of time or other overriding circumstances, the
keeping of a verbatim transcript is not practicable, or (2) principal
participants in the meeting are representatives of foreign governments.
If any such record other than a verbatim transcript, is kept by a
designee who is not a full-time Federal employee, that record shall be
submitted to the full-time Federal employee in attendance at the meeting
who shall review the record, promptly make any changes he deems
necessary to make the record full and complete, and shall notify the
designee of such changes.
(b)(1) Except as provided in paragraphs (b) (2) through (4) of this
section, participants shall keep a full and complete record of any
communication (other than in a meeting held pursuant to this subpart)
between or among themselves or with any other member of a petroleum
industry group created by the International Energy Agency, or subgroup
thereof for the purpose of carrying out a voluntary agreement or
developing or carrying out a plan of action under this subpart, except
that where there are several communications within the same day
involving the same participants, they may keep a cumulative record for
the day. The parties to a communication may agree among themselves who
shall keep such record. Such record shall include the names of the
parties to the communication and the organizations, if any, which they
represent; the date of communication; the means of communication, and a
description of the communication in sufficient detail to convey
adequately its substance.
(2) Where any communication is written (including, but not limited
to, telex, telegraphic, telecopied, microfilmed and computer printout
material), and where such communication demonstrates on its face that
the originator or some other source furnished a copy of the
communication to the Office of International Affairs, Department of
Energy with the notation ``Voluntary Agreement'' on the first page of
the document, no participants need record such a communication or send a
further copy to the Department of Energy. The Department of Energy may,
upon written notice to participants, from time to time, or with
reference to particular types of documents, require deposit with other
offices or officials of the Department of Energy. Where such
communication demonstrates that it was sent to the Office of
International Affairs, Department of Energy with the notation
``Voluntary Agreement'' on the first page of the document, or such other
offices or officials as the Department of Energy has designated pursuant
to this section, it shall satisfy paragraph (c) of this section, for the
purpose of deposit with the Department of Energy.
(3) To the extent that any communication is procedural,
administrative or ministerial (for example, if it involves the location
of a record, the place of a meeting, travel arrangements, or similar
matters) only a brief notation of the date, time, persons involved and
description of the communication need be recorded; except that during an
IEA emergency allocation exercise or an allocation systems test such a
non-substantive communication between members of the Industry Supply
Advisory Group (ISAG) which occur within IEA headquarters need not be
recorded.
(4) To the extent that any communication involves matters which
recapitulate matters already contained in a full and complete record,
the substance of such matters shall be identified, but need not be
recorded in detail, provided that reference is made to the record and
the portion thereof in which the substance is fully set out.
(c) Except where the Department of Energy otherwise provides, all
records and transcripts prepared pursuant to paragraphs (a) and (b) of
this section, shall be deposited within seven (7) days after the close
of the week (ending Saturday) of their preparation during an
international energy supply emergency or a test of the IEA emergency
allocation system, and within fifteen (15) days after the close of the
month of their preparation during periods of non-emergency, together
with any agreement resulting therefrom, with
[[Page 60]]
the Department of Energy and shall be available to the Department of
Justice, the Federal Trade Commission, and the Department of State. Such
records and transcripts shall be available for public inspection and
copying to the extent set forth in subpart D. Any person depositing
materials pursuant to this section shall indicate with particularity
what portions, if any, the person believes are not subject to disclosure
to the public pursuant to subpart D and the reasons for such belief.
(d) Any meeting between a participant and an official of DOE for the
purpose of carrying out a voluntary agreement or developing or carrying
out a plan of action shall, if not otherwise required to be recorded
pursuant to this section, be recorded by such official as provided in
Sec. 204.5.
(e) During international oil allocation under chapters III and IV of
the IEP or during an IEA allocation systems test, the Department of
Energy may issue such additional guidelines amplifying the requirements
of these regulations as the Department of Energy determines to be
necessary and appropriate.
(Approved by the Office of Management and Budget under Control No. 1905-
0067)
(Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended;
E.O. 11790, 39 FR 23185; E.O. 11930, 41 FR 32397; Energy Policy and
Conservation Act, Pub. L. 94-163; E.O. 11912, 41 FR 15825; Department of
Energy Organization Act, Pub. L. 95-91, 91 Stat. 565, E.O. 12009, 42 FR
46267)
[41 FR 6754, Feb. 13, 1976, as amended at 43 FR 12854, Mar. 28, 1978; 46
FR 63209, Dec. 31, 1981]
Subpart D_Availability of Information Relating to Meetings and
Communications
Sec. 209.41 Availability of information relating to meetings
and communications.
(a) Except as provided in paragraph (b) of this section, records or
transcripts prepared pursuant to this subpart shall be available for
public inspection and copying in accordance with section 552 of title 5,
United States Code and part 202 of this title.
(b) Matter may be withheld from disclosure under section 552(b) of
title 5 only on the grounds specified in:
(1) Section 552(b)(1), applicable to matter specifically required by
Executive Order to be kept secret in the interest of the national
defense or foreign policy. This section shall be interpreted to include
matter protected under Executive Order No. 11652 of March 8, 1972,
establishing categories and criteria for classification, as well as any
other such orders dealing specifically with disclosure of IEP related
materials;
(2) Section 552(b)(3), applicable to matter specifically exempted
from disclosure by statute; and
(3) So much of section 552(b)(4) as relates to trade secrets.
PART 210_GENERAL ALLOCATION AND PRICE RULES--Table of Contents
Authority: Emergency Petroleum Allocation Act of 1973, Pub. L. 93-
159, E.O. 11748, 38 FR 33577; Economic Stabilization Act of 1970, as
amended, Pub. L. 92-210, 85 Stat. 743; Pub. L. 93-28, 87 Stat. 27; E.O.
11748, 38 FR 33575; Cost of Living Council Order Number 47, 39 FR 24.
Subpart A_Recordkeeping
Sec. 210.1 Records.
(a) The recordkeeping requirements that were in effect on January
27, 1981, in parts 210, 211, and 212 will remain in effect for (1) all
transactions prior to February 1, 1981; and (2) all allowed expenses
incurred and paid prior to April 1, 1981 under Sec. 212.78 of part 212.
These requirements include, but are not limited to, the requirements
that were in effect on January 27, 1981, in Sec. 210.92 of this part;
in Sec. Sec. 211.67(a)(5)(ii); 211.89; 211.109, 211.127; and 211.223 of
part 211; and in Sec. Sec. 212.78(h)(5)(ii); 212.78(h)(6);
212.83(c)(2)(iii)(E)(I); 212.83(c)(2)(iii)(E)(II); 212.83(c)(2)(iii);
``Fi t''; 212.83(i); 212.93(a); 212.93(b)(4)(iii)(B)(I);
212.93(i)(4); 212.94(b)(2)(iii); 212.128; 212.132; 212.172; and Sec.
212.187 of part 212.
(b) Effective February 5, 1985, paragraph (a) of this section shall
apply, to the extent indicated, only to firms in the following
categories. A firm may be included in more than one category,
[[Page 61]]
and a firm may move from one category to another. The fact that a firm
becomes no longer subject to the recordkeeping requirements of one
category shall not relieve that firm of compliance with the
recordkeeping requirements of any other category in which the firm is
still included.
(1) Those firms which are or become parties in litigation with DOE,
as defined in paragraph (c)(1) of this section. Any such firm shall
remain subject to paragraph (a) of this section. DOE shall notify the
firm in writing of the final resolution of the litigation and whether or
not any of its records must be maintained for a further period. DOE
shall notify a firm which must maintain any records for a further period
when such records are no longer needed.
(2)(i) Those firms which as of November 30 1984, have completed
making all restitutionary payments required by an administrative or
judicial order, consent order, or other settlement or order but which
payments are on February 5, 1985, still subject to distribution by DOE.
This requirement is applicable to only those firms listed in appendix B.
Any such firm shall maintain all records for the time period covered by
the administrative or judicial order, consent order, or other settlement
or order requiring the payments, evidencing sales volume data for each
product subject to controls and customers' names and addresses, until
one of the following: June 30, 1985, unless this period is extended on a
firm-by-firm basis; the end of the individual firm's extension; or the
firm is notified in writing that its records are no longer needed.
(ii) Those firms which as of November 30, 1984, are required to make
restitutionary or other payments pursuant to an administrative or
judicial order, consent order, or other settlement or order. Any such
firm shall remain subject to paragraph (a) of this section until the
firm completes all restitutionary payments required by the
administrative or judicial order, consent order, or other settlement or
order. However, after completing all such payments, a firm shall
maintain all records described in paragraph (b)(2)(i) of this section
until one of the following: Six months after the firm completes all such
payments, unless this period is extended on a firm-by-firm basis; the
end of the individual firm's extension; or the firm is notified in
writing that its records are no longer needed.
(3)(i) Those firms with completed audits in which DOE has not yet
made a determination to initiate a formal enforcement action and firms
under audit which do not have outstanding subpoenas. Any such firm shall
maintain all records for the period covered by the audit including all
records necessary to establish historical prices or volumes which serve
as the basis for determining the lawful prices or volumes for any
subsequent regulated transaction which is subject to audit, until one of
the following: June 30, 1985, unless this period is extended on a firm-
by-firm basis; the end of the individual firm's extension; or the firm
is notified in writing by DOE that its records are no longer needed.
However, if a firm in this group shall become a party in litigation, the
firm shall then be subject to the recordkeeping requirements for firms
in litigation set forth in paragraph (b)(1) of this section.
(ii) Those firms under audit which have outstanding subpoenas on
February 5, 1985, or which receive subpoenas at any time thereafter or
which have supplied records for an audit as the result of a subpoena
enforced after November 1, 1983. Any such firm shall remain subject to
paragraph (a) of this section until two years after ERA has notified the
firm in writing that is in full compliance with the subpoena or until
ERA has received from the firm a sworn certification of compliance with
the subpoena as required by 10 CFR 205.8. However, if a firm in this
group shall become a party in litigation, the firm shall then be subject
to the recordkeeping requirements for firms in litigation set forth in
paragraph (b)(1) of this section.
(4) Those firms which are subject to requests for data necessary to
verify that crude oil qualifies as ``newly discovered'' crude oil under
10 CFR 212.79. Any such firm shall maintain the records evidencing such
data until one of the following: June 30, 1985, unless this period is
extended on a firm-by-
[[Page 62]]
firm basis; the end of an individual firm's extension; or the firm is
notified in writing by DOE that its records are no longer needed.
However, if a firm in this group shall become a party in litigation, the
firm shall then be subject to the recordkeeping requirements for firms
in litigation set forth in paragraph (b)(1) of this section.
(5) Those firms whose records are determined by DOE as necessary to
complete the enforcement activity relating to another firm which is also
subject to paragraph (a) of this section unless such firms required to
keep records have received certified notice letters specifically
describing the records determined as necessary. At that time, the
specific notice will control the recordkeeping requirements. These firms
have been identified in appendix A. Any such firm shall maintain these
records until one of the following: June 30, 1985, unless this period is
extended on a firm-by-firm basis; the end of the individual firm's
extension; or the firm is notified in writing by DOE that its records
are no longer needed.
(6) Those firms which participated in the Entitlements program. Any
such firm shall maintain its Entitlements-related records until six
months after the final judicial resolution (including any and all
appeals) of Texaco v. DOE, Nos. 84-391, 84-410, and 84-456 (D. Del.), or
the firm is notified by DOE that its records are no longer needed,
whichever occurs first.
(c) For purposes of this section:
(1) A firm is ``a party in litigation'' if:
(i)(A) The firm has received a Notice of Probable Violation, a
Notice of Probable Disallowance, a Proposed Remedial Order, or a
Proposed Order of Disallowance; or
(B) The firm and DOE are parties in a lawsuit arising under the
Emergency Petroleum Allocation Act of 1973, as amended (15 U.S.C. 751 et
seq.) or 10 CFR parts 205, 210, 211, or 212; and
(ii)(A) There has been no final (that is, non-appealable)
administrative or judicial resolution, or
(B) DOE has not informed the firm in writing that the Department has
completed its review of the matter.
(2) A firm means any association, company, corporation, estate,
individual, joint-venture, partnership, or sole proprietorship, or any
other entity, however organized, including charitable, educational, or
other eleemosynary institutions, and state and local governments. A firm
includes a parent and the consolidated and unconsolidated entities (if
any) which it directly or indirectly controls.
Appendix A to 10 CFR 210.1--Third Party Firms
Name of Firm
A & R, Inc.
A. J. Petroleum
ADA Resources, Inc.
ATC Petroleum
Abbco Petroleum, Inc.
Ada Oil Company
Adams Grocery
Advanced Petroleum Distributing Co.
Agway Inc.
Allegheny Petroleum Corp.
Alliance Oil and Refining Company
Allied Chemical Corp.
Allied Transport
Amerada Hess Corp.
American Natural Crude Oil Assoc.
Amoco Production Company
Amorient Petroleum, Inc.
An-Son Transportation Co.
Anadarko Products Co.
Andrus Energy Corp.
Antler Petroleum
Arco Pipeline Company
Armada Petroleum Corp.
Armour Oil Company
Arnold Brooks Const. Inc.
Ashland Oil
Asiatic Petroleum Co.
Aspen Energy, Inc.
Athens General Hospital
Atlantic Pacific Energy, Inc.
Atlas Processing Company
B & B Trading Company
BLT, Inc.
BPM, Ltd.
Baker Services, Inc.
Basin Inc.
Basin Petroleum, Inc.
Beacon Hill Mobil
Belcher Oil Company
Bighart Pipeline Company
Bigheart Pipeline Corp
Bowdoin Square Exxon
Bowdoin Super Service (Sunoco)
Brio Petroleum, Inc.
Brixon
C.E. Norman
CPI Oil & Refining
CRA-Farmland Industries, Inc.
Calcaseiu Refining, Ltd.
Carbonit Houston, Inc.
Carr Oil Company, Inc.
Castle Coal & Oil Co.
[[Page 63]]
Central Crude Corporation
Century Trading Co.
Charter Crude Oil
Chastain Vineyard
Chevron USA, Inc.
Cibro Petroleum, Inc.
Cirillo Brothers
Cities Service (Citgo) Station
Cities Service Company
Cities Service Midland
City of Athens
Clarke County Board of Education
Claude E. Silvey
Coastal Corporation (The)
Coastal Petroleum and Supply Inc.
Coastal States Trading Company
Commonwealth Oil Refining Co., Inc.
Coral Petroleum Canada, Inc.
Coral Petroleum, Inc.
Corex of Georgia
Cothran Interstate Exxon
Couch's Standard Chevron
Cougar Oil Marketers Inc.
Crude Company (The)
Crystal Energy Corporation
Crystal Refining
D & E Logging
DDC Corporation of America
Darrell Williamson
Davis Ellis
Days Inn of America, Inc.
Delta Petroleum & Energy Corp.
Derby & Company, Inc.
Derby Refining Company
Dewveall Petroleum
Dixie Oil Company
Dixon Oil Co.
Don Hardy
Donald Childs
Dow Chemical Company
Dr. Joe L. Griffeth
Driver Construction Co.
Drummond Brothers, Inc.
Duffie Monroe & Sons Co., Inc.
ECI (A/K/A Energy Cooperative Inc.)
Earnest Dalton
Earth Resources Trading
Eastern Seaboard Petroleum, Inc.
Elmer Hammon
Elvin Knight
Empire Marketing, Inc.
Encorp.
Energy Cooperative, Inc.
Energy Distribution Co.
Englehard Corporation
Englehard Oil Corporation
Entex
Evans Oil Co.
Exxon Company
F & S Trading Company, Inc.
Farmers Union Central Exchange, Inc.
Farmland Industries Inc.
Fasgo, Inc.
Fedco Oil Company
Federal Employees Distributing Co.
Fitzpatrick Spreader
Flutz Oil Company
Flying J. Inc.
Foremost Petroleum
Four Corners Pipe Line
Frank Katz
Frank W. Abrahamsen
Frank's Butane, Inc.
Friendswood Refinery
Frontier Manor Collection
Fuel Oil Supply & Terminaling, Inc.
G. C. Clark Company
GPC Marketing Company
Gary Refining Co.
Geer Tank Trucks, Inc.
Gene Clary
Gene McDonald
General Crude Oil Company
Geodynamics Oil & Gas Inc.
George Kennedy
George Smith Chevron
Gleason Oil Company
Glenn Company
Globe Oil Co.
Godfrey's Standard Service
Good Hope Industries, Inc.
Good Hope Refineries, Inc.
Granite Oil Company
Guam Oil & Refining Co., Inc.
Gulf States Oil & Refining Company
H. D. Adkinson
H. H. Dunson
H.S. & L, Inc.
HNG Oil Company
Harbor Petroleum, Inc.
Harbor Trading
Harmony Grove Mills, Inc.
Harry Rosser
Hast Oil, Inc.
Heet Gas Company
Henry Alva Mercer
Herndon Oil & Gas Company
Horizon Petroleum Company
Houston Oil & Minerals Products Co.
Houston Oil & Refining
Howell Corporation
Hurricane Trading Company, Inc.
Hydrocarbon Trading and Transport Co.
Inco Trading
Independent Refining Corp.
Independent Trading Corporation
Indiana Refining, Inc.
Intercontinental Petroleum Corp.
International Crude Corporation
International Petro
International Petroleum Trading, Inc.
International Processors
Isthmus Trading Corporation
J & M Transport
J. & J.'s Fast Stop
J. A. Rackerby Corporation
J. H. Baccus
J. H. Baccus & Co.
J. J. Williamson
J. M. Petroleum Corporation
JPK Industries
Jack W. Grigsby
Jaguar Petroleum, Inc.
James L. Bush
[[Page 64]]
Jay Petroleum Company
Jay-Ed Petroleum Company
John W. McGowan
Kalama Chemical, Inc.
Kelly Trading Corp.
Kenco Refining
Kerr-McGee Corporation
Koch Fuel
Koch Industries, Inc.
Kocolene Oil
Kocolene Station
L & L Resources, Inc.
L.S. Parker
LaGloria Oil & Gas
LaJet, Inc.
Lamar Refining Co.
Langham Petroleum Corp.
Larry Roberts
Laurel Oil, Inc.
Lee Allen
Lincoln Land Sales Company
Listo Petroleum Inc.
Longview Refining Corp.
Love's Standard
Lucky Stores Inc.
M.L. Morrow
Magna Energy Corporation
Magnolia Oil Company
Mansfield Oil Co.
Mapco Petroleum, Inc.
Mapco, Inc.
Marion Trading Co.
Marlex Oil & Refining, Inc.
Marlin Petroleum, Inc.
Martin Oil Company
Mathew's Grocery
McAuleep Oil Co.
McAuley Oil Company
Meadows Gathering, Inc.
Mellon Energy Products Co.
Merit Petroleum, Inc.
Metro Wash, Inc.
Miller Oil Purchasing Co.
Minor Oil, Inc.
Minro Oil, Inc.
Mitchell Oil Co.
Mitsui & Co. (USA) Inc.
Mobil Bay Refining Company
Montgomery Well Drilling
Mundy Food Market
Munford, Inc.
Mutual Petroleum
NRG Oil Company
National Convenience Stores
National Cooperative Refinery
Nicholson Grocery and Gas
North American Petroleum
Northeast Petroleum Corp.
Northeast Petroleum Corporation
Northgate Auto Center
Northwest Crude, Inc.
Nova Refining Corp.
Occidental Petroleum Corp. (includes Permia)
Ocean Drilling and Exploration Co.
Oil Exchange, Inc.
Oilco
Omega Petroleum Corp.
Otoe Corporation
Oxxo Energy Group, Inc.
P & O Falco, Inc.
P. L. Heatley Co.
PEH, Inc.
PIB, Inc.
PSW Distributors Company
Pacific Refinery, Inc.
Pacific Resources, Inc.
Pan American Products Corp.
Par Brothers Food Store
Pauley Petroleum Inc.
Pennzoil Co.
Permian Corporation (The)
Pescar International Corp.
Pescar International Trading Co.
Petraco (U.S.A.) Inc.
Petrade International
Petrol Products, Inc.
Phillips Petroleum Company
Phoenis Petroleum Co.
Phoenix Petroleum Co.
Pine Mountains
Poole Petroleum
Port Petroleum
Presley Oil Co.
Procoil Inc.
Publiker Industries, Inc.
Pyramid Dist. Co., Inc.
Questor Crude Oil Company
Quitman Refining Co.
R. H. Garrett Paving
Ra-Gan Fuel, Inc.
Reeder Distributing Co.
Reeder Distributors
Reese Exploration Co.
Research Fuels Inc.
Revere Petroleum Co.
Richardson-Ayres, Inc.
Robert Bishop
Robert Patrick
Roberts Grocery
Rock Island Refining Corporation
Rogers Oil Company
Roy Baerne
Russell Oil Company
S. G. Coplen
SECO (Scruggs Energy)
Saber Crude Oil, Inc.
Saber Refining Company
Salem Ventures, Inc.
Samson Resources Company
Santa Fe Energy Products Co.
Saye's Truck Stop
Scandix Oil Limited
Score, Inc.
Scruggs Energy Company
Scurlock Oil Company
Scurry Oil Company
Seamount Petroleum Company
Seaview Petroleum Company
Sector Refining, Inc.
Selfton Miller
Shepherd Trading Corporation
Shulze Processing
Sigmor Corporation
[[Page 65]]
Skelly Oil Company
South Hampton Refining Company
South Texas LP Gas Co.
Southern Crude Oil Resources
Southern Terminal & Transport, Ltd.
Southern Union Company
Southwest Petro. Energy
Southwest Petrochem
Standard Oil Co. (Ohio)
Standard Oil Co. of California
Standard Oil Company (Indiana)
Standard Oil Company (Ohio)
Sterling Energy Company
Steve Childs
Stix Gas Company, Inc.
Sunset Grocery
Sunset Oil & Refining, Inc.
Swanee Petroleum Company
T & P Enterprises
T. B. Eley
T. E. Jawell
Tauber Oil Company
Tenneco, Inc.
Tesoro Crude Oil Company
Texana Oil & Gas Corp.
Texas American Petrochemicals (TAP)
Texas City Refining
Texas Eastern Transmission Corp.
Texas Energy Reserve Corporation
Texas Pacific Oil Company
Thomas Cockvell
Thomas Petroleum Products, Inc.
Thorton Oil Company
Thyssen Incorporated
Tiger Petroleum Company
Time Oil Co.
Tipperary Refining Company
Tom Banks
Tom Smith
Tomlinson Petroleum, Inc.
Tosco Corporation
Total Petroleum, Inc.
Trans-Texas Petroleum Corp.
Transco Trading Company
Turboil Oil and Refining
Two Rivers Oil & Gas Co., Inc.
U-Fill 'er Up
USA Gas, Inc.
Uni Oil Company
Union Oil of California
Doram Energy
United Petroleum Marketing
United Refining Company
United Refining, Inc.
Universal Rundle
Val-Cap, Inc.
Vedetta Oil Trading, Inc.
Vedette Oil Trading, Inc.
Vickers Energy Corp.
W. C. Colquitt
W. T. Strickland
W. W. Blanton
W.A. Nunnally, Jr., Construction Co.
W.D. Porterfiled
Wellven, Inc.
West Texas Marketing Corp.
Western Crude Oil, Inc.
Western Fuels, Inc.
Wight Nurseries of Oglethorpe Co.
William Seabolt
Wilson's Used Tractors
Windsor Gas Corp.
Wyoming Refining
Appendix B to 10 CFR 210.1--Firms With Completed Payments Subject to
Distribution
The following firms have completed making restitutionary payments to
DOE but their payments are still subject to distribution by DOE. Each
such firm must maintain relevant records until June 30, 1985, unless
this period is extended on a firm-by-firm basis. Relevant records are
all records of the firm, including any affiliates, subsidiaries or
predecessors in interest, for the time period covered by the judicial or
administrative order, consent order, or other settlement or order
requiring the payments, evidencing sales volume data for each product
subject to controls and customers' names and addresses.
------------------------------------------------------------------------
Name of firm Location
------------------------------------------------------------------------
A. Tarricone Inc...................... Yonkers, NY.
Adolph Coors Company.................. Golden, CO.
Allied Materials Corp & Excel......... Oklahoma City, OK.
Aminoil USA, Inc...................... Houston, TX.
Amtel, Inc............................ Providence, RI.
Apache Corporation.................... Minneapolis, MN.
APCO Oil Corporation.................. Oklahoma City, OK.
Arapaho Petroleum, Inc................ Breckenridge, TX.
Arkansas Louisiana Gas Company........ Shreveport, LA.
Arkla Chemical Corporation............ Shreveport, LA.
Armour Oil Company.................... San Diego, CA.
Associated Programs Inc............... Boca Raton, FL.
Atlanta Petroleum Production.......... Fort Worth, TX.
Automatic Heat, Inc...................
Ayers Oil Company..................... Canton, MD.
Aztex Energy Corporation.............. Knoxville, TN.
Bak Ltd............................... Narbeth, PA.
Bayou State Oil/IDA Gasoline.......... Shreveport, LA.
Bayside Fuel Oil Depot Corp........... Brooklyn, NY.
Belridge Oil Company.................. Los Angeles, CA.
Blaylock Oil Co., Inc................. Homestead, FL.
Blex Oil Company...................... Minneapolis, MN.
Boswell Oil Company................... Cincinnati, OH.
Box, Cloyce K......................... Dallas, TX.
Breckenridge Gasoline Company......... Kansas City, KS.
Brownlie, Wallace, Armstrong.......... Denver, CO.
Bucks Butane & Propane Service........ San Jose, CA.
Budget Airport Associates............. Los Angeles, CA.
Busler Enterprises Inc................ Evansville, IN.
Butler Petroleum Corp................. Butler, PA.
C.K. Smith & Company, Inc............. Worcester, MA.
Cap Oil Company....................... Tulsa, OK.
Champlain Oil Co., Inc................ South Burlington, VT.
Chapman, H.A.......................... Tulsa, OK.
Cibro Gasoline Corporation............ Bronx, NY.
City Service Inc...................... Kalispell, MT.
Coastal Corporation................... Houston, TX.
Coline Gasoline Corporation........... Santa Fe Springs, CA.
Collins Oil Co........................ Aurora, IL.
Columbia Oil Co....................... Hamilton, OH.
Conlo Service Inc..................... East Farmingdale, NY.
Conoco, Inc........................... Houston, TX.
Consolidated Gas Supply Corp.......... Hastings, WV.
Consolidated Leasing Corp............. Los Angeles, CA.
[[Page 66]]
Consumers Oil Co...................... Rosemead, CA.
Continental Resources Company......... Winter Park, FL.
Cordele Operating Co.................. Corsicana, TX.
Cosby Oil Co., Inc.................... Whittier, CA.
Cougar Oil Co......................... Selma, AL.
Cross Oil Co., Inc.................... Wellstone, MO.
Crystal Oil Company (formerly Vallery Shreveport, LA.
Corp.).
Crystal Petroleum Co.................. Corpus Christi, TX.
Devon Corporation..................... Oklahoma City, OK.
Dorchester Gas Corp................... Dallas, TX.
E.B. Lynn Oil Company................. Allentown, PA.
E.M. Bailey Distributing Co........... Paducah, KY.
Eagle Petroleum Co.................... Wichita Falls, TX.
Earls Broadmoor....................... Houma, LA.
Earth Resources Co.................... Dallas, TX.
Eastern Petroleum Corp................ Annapolis, MD.
Edington Oil Co....................... Los Angeles, CA.
Elias Oil Company..................... West Palm Beach, FL.
Elm City Filling Stations, Inc........ New Haven, CT.
Empire Oil Co......................... Bloomington, CA.
Endicott, Eugene...................... Redmond, OR.
Enserch Corp.......................... Dallas, TX.
Enterprise Oil & Gas Company.......... Detroit, MI.
F.O. Fletcher, Inc.................... Tacoma, WA.
Fagadau Energy Corporation............ Dallas, TX.
Farstad Oil Company................... Minot, ND.
Field Oil Co., Inc.................... Ogden, UT.
Fine Petroleum Co., Inc............... Norfolk, VA.
Foster Oil Co......................... Richmond, MI.
Franks Petroleum Inc.................. Shreveport, LA.
Froesel Oil Co........................
Gas Systems Inc....................... Ft. Worth, TX.
Gate Petroleum Co., Inc............... Jacksonville, FL.
GCO Minerals Company.................. Houston, TX.
Getty Oil Company..................... Los Angeles, CA.
Gibbs Industries, Inc................. Revere, MA.
Glaser Gas Inc........................ Calhoun, CO.
Glover, Lawrence H.................... Patchogue, NY.
Goodman Oil Company................... Boise, ID.
Grant Rent a Car Corporation.......... Los Angeles, CA.
Grimes Gasoline Co.................... Tulsa, OK.
Gulf Energy & Development Corp. (also San Antonio, TX.
known as Gulf Energy Development
Corp.).
Gulf Oil Corp......................... Houston, TX.
Gull Industries, Inc.................. Seattle, WA.
H.C. Lewis Oil Co..................... Welch, WV.
Hamilton Brothers Petroleum Co........ Denver, CO.
Harris Enterprise Inc................. Portland, OR.
Heller, Glenn Martin.................. Boston, MA.
Hendel's Inc.......................... Waterford, CT.
Henry H. Gungoll Associates........... Enid, OK.
Hertz Corporation, The................ New York, NY.
Hines Oil Co.......................... Murphysboro, IL.
Horner & Smith, A Partnership......... Houston, TX.
Houston Natural Gas Corp.............. Houston, TX.
Howell Corporation/Quintana Refinery Houston, TX.
Co.
Hunt Industries....................... Dallas, TX.
Hunt Petroleum Corp................... Dallas, TX.
Husky Oil Company of Delaware......... Cody, WY.
Ideal Gas Co., Inc.................... Nyassa, OR.
Independent Oil & Tire Company........ Elyria, OH.
Inland USA, Inc....................... St. Louis, MO.
Inman Oil Co.......................... Salem, MO.
Internorth, Inc....................... Omaha, NE.
J.E. DeWitt, Inc...................... South El Monte, CA.
J.M. Huber Corp....................... Houston, TX.
James Petroleum Corp.................. Bakersfield, CA.
Jay Oil Company....................... Fort Smith, AR.
Jimmys Gas Stations Inc............... Auburn, ME.
Jones Drilling Corporation............ Duncan, OK.
Juniper Petroleum Corporation......... Denver, CO.
Kansas-Nebraska Natural Gas Co........ Hastings, NE.
Keller Oil Company, Inc............... Effingham, IL.
Kenny Larson Oil Co., Inc.............
Kent Oil & Trading Company............ Houston, TX.
Key Oil Co., Inc...................... Tuscaloosa, AL.
Key Oil Company....................... Bowling Green, KY.
Kiesel Co............................. St. Louis, MO.
King & King Enterprise................ Kansas City, MO.
Kingston Oil Supply Corp.............. Port Ewen, NY.
Kirby Oil Company.....................
L & L Oil Co., Inc.................... Belle Chasse, LA.
L.P. Rech Distributing Co............. Roundup, MT.
La Gloria Oil and Gas Co.............. Houston, TX.
Lakes Gas Co., Inc.................... Forest Lake, MN.
Lakeside Refining Co./Crystal......... Southfield, MI.
Landsea Oil Company................... Irvine, CA.
Leathers Oil Co., Inc................. Portland, OR.
Leese Oil Company..................... Pocatello, ID.
Leonard E. Belcher, Inc............... Springfield, MA.
Lincoln Land Oil Co................... Springfield, IL.
Liquid Products Recovery.............. Houston, TX.
Little America Refining Co............ Salt Lake City, UT.
Lockheed Air Terminal Inc............. Burbank, CA.
Lowe Oil Company...................... Clinton, MO.
Lucia Lodge Arco...................... Big Sur, CA.
Luke Brothers Inc..................... Calera, OK.
Lunday Thargard Oil................... South Gate, CA.
Malco Industries Inc.................. Cleveland, OH.
Mapco, Inc............................ Tulsa, OK.
Marine Petroleum Co................... St. Louis, MO.
Marlen L. Knutson Dist. Inc........... Stanwood, WA.
Martin Oil Service, Inc............... Blue Island, IL.
Martinoil Company..................... Fresno, CA.
Marvel Fuel Oil and Gas Co............
McCarty Oil Co........................ Wapakoneta, OH.
McCleary Oil Co., Inc................. Chambersburg, OH.
McClure's Service Station............. Salisbury, PA.
McTan Corporation..................... Abilene, TX.
Mesa Petroleum Company................ Amarillo, TX.
Midway Oil Co......................... Rock Island, IL.
Midwest Industrial Fuels, Inc......... La Crosse, WI.
Mississippi River Transmission........ St. Louis, MO.
Mitchell Energy Corp.................. Woodlands, TX.
Montana Power Co...................... Butte, MT.
Moore Terminal and Barge Co........... Monroe, LA.
Mountain Fuel Supply Company.......... Salt Lake City, UT.
Moyle Petroleum Co.................... Rapid City, SD.
Mustang Fuel Corporation.............. Oklahoma City, OK.
Naphsol Refining Company.............. Muskegon, MI.
National Helium Corporation........... Liberal, KS.
National Propane Corp................. Wyandanch, NY.
Navajo Refining Company............... Dallas, TX.
Nielson Oil & Propane, Inc............ West Point, NE.
Northeast Petroleum Industries........ Chelsea, MA.
Northeastern Oil Co., Inc............. Gillette, WY.
Northwest Pipeline Corp............... Salt Lake City, UT.
O'Connell Oil Co...................... Pittsfield, MA.
Oceana Terminal Corp. et al........... Bronx, NY.
OKC Corporation....................... Dallas, TX.
Olin Corporation...................... Stamford, CT.
Oneok Incorporation................... Tulsa, OK.
Ozona Gas Processing Plant............ Tyler, TX.
Pacer Oil Co. of Florida, Inc......... Ormond Beach, FL.
Pacific Northern Oil.................. Seattle, WA.
Panhandle Eastern (Century)........... Houston, TX.
Parade Company........................ Shreveport, LA.
Parham Oil Corporation................ Nashville, TN.
Pasco Petroleum Co., Inc.............. Phoenix, AZ.
Pedersen Oil, Inc..................... Silverdale, WA.
Pennzoil Company...................... Houston, TX.
Perry Gas Processors, Inc............. Odessa, TX.
Peoples Energy Corp................... Chicago, IL.
Perta Oil Marketing Corp.............. Beverly Hills, CA.
Peterson Petroleum Inc................ Hudson, NY.
[[Page 67]]
Petro-Lewis Corp...................... Denver, CO.
Petrolane-Lomita Gasoline Co.......... Long Beach, CA.
Petroleum Heat & Power Co. Inc........ Stamford, CT.
Petroleum Sales/Services Inc.......... Buffalo, NY.
Pioneer Corp.......................... Amarillo, TX.
Planet Engineers Inc.................. Denver, CO.
Plateau, Inc.......................... Albuquerque, NM.
Plaquemines Oil Sales................. Belle Chasse, LA.
Point Landing Inc..................... Hanrahan, LA.
Port Oil Company, Inc................. Mobile, AL.
Post Petroleum Co..................... West Sacramento, CA.
Power Pak Co., Inc.................... Houston, TX.
Pride Refining, Inc................... Abilene, TX.
Pronto Gas Co......................... Abilene, TX.
Propane Gas & Appliance Co............ New Brockton, AL.
Prosper Energy Corporation............ Dallas, TX.
Pyro Energy Corporation............... Evansville, IN.
Pyrofax Gas Corporation............... Houston, TX.
Quaker State Oil...................... Oil City, PA.
Quarles Petroleum, Inc................ Fredericksburg, VA.
Resources Extraction Process.......... Houston, TX.
Reynolds Oil Co....................... Kremling, CO.
Richardson Ayers Jobbers, Inc......... Alexandria, LA.
Riverside Oil, Inc.................... Evansville, IN.
Roberts Oil Co. Inc................... Albuquerque, NM.
Rookwood Oil Terminals Inc............ Cincinnati, OH.
Saber Energy, Inc..................... Houston, TX.
Sanesco Oil Co........................ Escondido, CA.
Schroeder Oil Company................. Carroll, IA.
Seminole Refining Inc................. St. Marks, FL.
Sid Richardson Carbon & Gas........... Ft. Worth, TX.
Sigmore Corporation................... San Antonio, TX.
Southwestern Refining Co., Inc........ Salt Lake City, UT.
Speedway Petroleum Co., Inc........... Fitchburg, MA.
St. James Resources Corp.............. Boston, MA.
Standard Oil Co. (Indiana)............ Chicago, IL.
Stinnes Inter Oil Inc................. New York, NY.
Tenneco Oil Company................... Houston, TX.
Texas/Arkansas/Colorado/Oklahoma/Oil Dallas, TX.
Purchasing.
Texas Gas & Exploration............... Dallas, TX.
Texas Oil & Gas Corporation........... Dallas, TX.
Texas Pacific Oil Company, Inc........ Dallas, TX.
The True Companies.................... Casper, WY.
Thompson Oil Inc...................... Purcellville, VA.
Tiger Oil Co.......................... Yakima, WA.
Time Oil Company...................... Seattle, WA.
Tipperary Corp........................ Midland, TX.
Tippins Oil & Gas Co.................. Richmond, MO.
Triton Oil & Gas Corp................. Dallas, TX.
U.S. Compressed Gas Company........... King of Prussia, PA.
U.S. Oil Company...................... Combined Locks, WI.
U.S.A. Petroleum, Inc................. Santa Monica, CA.
Union Texas Petroleum Corp............ Houston, TX.
United Oil Company.................... Hillside, NJ.
Upham Oil & Gas Co.................... Mineral Wells, TX.
Vangas Inc............................ Fresno, CA.
VGS Corporation....................... Jackson, MS.
Waller Petroleum Company, Inc......... Towson, MD.
Warren Holding Company................ Providence, RI.
Warrior Asphalt Co. of Alabama........ Tuscaloosa, AL.
Webco Southern Oil Inc................ Smyrna, CA.
Wellen Oil Co......................... Jersey City, NJ
Wiesehan Oil Co.......................
Willis Distributing Company........... Erie, PA.
Winston Refining Company.............. Fort Worth, TX.
Witco Chemical Corporation............ New York, NY.
World Oil Company..................... Los Angeles, CA.
Worldwide Energy Corp................. Denver, CO.
Young Refining Corporation............ Douglasville, GA.
Zia Fuels (G.G.C. Corp.).............. Hobbs, NM.
------------------------------------------------------------------------
(Approved by the Office of Management and Budget under control number
1903-0073)
[50 FR 4962, Feb. 5, 1985]
Subparts B-D [Reserved]
PART 212_MANDATORY PETROLEUM PRICE REGULATIONS--Table of Contents
Authority: Emergency Petroleum Allocation Act of 1973, Pub. L. 93-
159, E.O. 11748, 38 FR 33577; Economic Stabilization Act of 1970, as
amended, Pub. L. 92-210, 85 Stat. 743; Pub. L. 93-28, 87 Stat. 27; E.O.
11748, 38 FR 33575; Cost of Living Council Order Number 47, FR 24.
Subparts A-C [Reserved]
Subpart D_Producers of Crude Oil
Sec. 212.78 Tertiary incentive crude oil.
Annual prepaid expenses report. By January 31 of each year after
1980, the project operator with respect to any enhanced oil recovery
project for which a report had been filed previously with DOE pursuant
to paragraph (h)(2)(i) of this section as that paragraph was in effect
on January 27, 1981, shall file with DOE a report in which the operator
shall certify to DOE (a) which of the expenses that had been reported
previously to DOE pursuant to paragraph (h)(2)(i) of this section as
that paragraph was in effect on January 27, 1981, were prepaid expenses;
(b) the goods or services for which such expenses had been incurred and
paid; (c) the dates on which such goods or services are intended to be
used; (d) the dates on which such goods or services actually are used;
(e) the identity of each qualified producer to which such prepaid
expenses had been attributed; and (f) the percentage of such prepaid
expenses attributed to each such qualified producer. An operator shall
file an annual prepaid expenses report each year until it has reported
the actual use of all the goods and services for which a prepaid expense
had been incurred and paid. For purposes of this paragraph, a prepaid
expense is an expense for any injectant or fuel used after September 30,
1981, or an expense for any other item to the extent that
[[Page 68]]
IRS would allocate the deductions (including depreciation) for that item
to the period after September 30, 1981.
(Approved by the Office of Management and Budget under OMB Control No.:
1903-0069)
[46 FR 43654, Aug. 31, 1981, as amended at 46 FR 63209, Dec. 31, 1981]
Subparts E-I [Reserved]
PART 215_COLLECTION OF FOREIGN OIL SUPPLY AGREEMENT INFORMATION--
Table of Contents
Sec.
215.1 Purpose.
215.2 Definitions.
215.3 Supply reports.
215.4 Production of contracts and documents.
215.5 Pricing and volume reports.
215.6 Notice of negotiations.
Authority: Emergency Petroleum Allocation Act of 1973, Pub. L. 93-
519, as amended, Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133 and Pub.
L. 94-163, and Pub. L. 94-385; Federal Energy Administration Act of
1974, Pub. L. 93-275, as amended, Pub. L. 94-385; Energy Policy and
Conservation Act, Pub. L. 94-163, as amended, Pub. L. 94-385; E.O.
11790, 39 FR 23185.
Source: 42 FR 48330, Sept. 23, 1977, unless otherwise noted.
Sec. 215.1 Purpose.
The purpose of this part is to set forth certain requirements
pursuant to section 13 of the Federal Energy Administration Act to
furnish information concerning foreign crude oil supply arrangements.
The authority set out in this section is not exclusive.
Sec. 215.2 Definitions.
As used in this subpart:
Administrator means the Federal Energy Administrator or his
delegate.
DOE means the Department of Energy.
Host government means the government of the country in which crude
oil is produced and includes any entity which it controls, directly or
indirectly.
Person means any natural person, corporation, partnership,
association, consortium, or any other entity doing business or domiciled
in the U.S. and includes (a) any entity controlled directly or
indirectly by such a person and (b) the interest of such a person in any
joint venture, consortium or other entity to the extent of entitlement
to crude oil by reason of such interest.
Sec. 215.3 Supply reports.
(a) Any person having the right to lift for export by virtue of any
equity interest, reimbursement for services, exchange or purchase, from
any country, from fields actually in production, (1) an average of
150,000 barrels per day or more of crude oil for a period of at least
one year, or (2) a total of 55,000,000 barrels of crude oil for a period
of less than one year, or (3) a total of 150,000,000 barrels of crude
oil for the period specified in the agreement, pursuant to supply
arrangements with the host government, shall report the following
information.
(1) Parties (including partners and percentage interest, where
applicable).
(2) Grade or grades available; loading terminal or terminals.
(3) Government imposed production limits, if any.
(4) Minimum lifting obligation and maximum lifting rights.
(5) Details of lifting options within the above limits.
(6) Expiration and renegotiation dates.
(7) Price terms including terms of rebates, discounts, and number of
days of credit calculated from the date of loading.
(8) Other payments to or interests retained by the host government
(i.e. taxes, royalties, and any other payment to the host government)
expressed in terms of the applicable rates or payment or preemption
terms, or the base to which those rates or terms are applied.
(9) Related service or other fees and cost of providing services.
(10) Restrictions on shipping or disposition.
(11) Other material contract terms.
(b) Reports under this section shall be made no later than (1) 60
days after final issuance of reporting forms implementing this
regulation, as announced in the Federal Register, (2) fourteen days
after the date when supply arrangements are entered into, or (3)
fourteen days after the initial lifting
[[Page 69]]
under an agreement in which the parties have tentatively concurred but
not signed, whichever occurs first. Reporting shall be based on actual
practice between the parties. Material changes in any item which must be
reported pursuant to this section shall be reported no later than 30
days after a person receives actual notice of such changes.
(c) Where reports under this section by each participant in a joint
operation would be impracticable, or would result in the submission of
inaccurate or misleading information, the participants acting together
may designate a single participant to report on any of the rights,
obligations, or limitations affecting the operation as a whole. Any such
designation shall be signed by a duly authorized representative of each
participant, and shall specify:
(1) The precise rights, obligations, or limitations to be covered by
the designation; and
(2) The reasons for the designation. Such designations shall be
submitted to the Assistant Administrator for International Energy
Affairs, and shall take effect only upon his written approval, which may
at any time be revoked.
Sec. 215.4 Production of contracts and documents.
Whenever the Administrator determines that certain foreign crude oil
supply information is necessary to assist in the formulation of energy
policy or to carry out any other function of the Administrator, he may
require the production by any person of any agreement or document
relating to foreign oil supply arrangements or reports related thereto.
Such material shall be provided pursuant to the conditions prescribed by
the Administrator at the time of such order or subsequently. As used in
this section, the term ``agreement'' includes proposed or draft
agreements, and agreements in which the parties have tentatively
concurred but have not yet signed, between or among persons and a host
country.
Sec. 215.5 Pricing and volume reports.
To the extent not reported pursuant to Sec. 215.3, any person
lifting for export crude oil from a country shall report to the DOE
within 30 days of the date on which he receives actual notice:
(a) Any change (including changes in the timing of collection) by
the host government in official selling prices, royalties, host
government taxes, service fees, quality or port differentials, or any
other payments made directly or indirectly for crude oil; changes in
participation ratios; changes in concessionary arrangements; and
(b) Any changes in restrictions on lifting, production, or
disposition.
Sec. 215.6 Notice of negotiations.
Any person conducting negotiations with a host government which may
reasonably lead to the establishment of any supply arrangement subject
to reporting pursuant to Sec. 215.3(a), or may reasonably have a
significant effect on the terms and conditions of an arrangement subject
to Sec. 215.3(a), shall notify DOE of such negotiations. Such notice
shall be made no later than the later of 30 days after the effective
date of this regulation or within 14 days after such negotiations meet
the conditions of this section, and shall specify all persons involved
and the host government affected. Notice must be in writing to the
Assistant Administrator for International Energy Affairs. Where this
notice pertains to negotiations to modify a supply agreement previously
reported to the Department of Energy under this part, such notice shall
include the agreement serial number assigned to the basic agreement.
PART 216_MATERIALS ALLOCATION AND PRIORITY PERFORMANCE UNDER CONTRACTS
OR ORDERS TO MAXIMIZE DOMESTIC ENERGY SUPPLIES--Table of Contents
Sec.
216.1 Introduction.
216.2 Definitions.
216.3 Requests for assistance.
216.4 Evaluation by DOE of applications.
216.5 Notification of findings.
216.6 Petition for reconsideration.
216.7 Conflict in priority orders.
216.8 Communications.
216.9 Violations.
Authority: Section 104 of the Energy Policy and Conservation Act
(EPCA), Pub. L. 94-163, 89 Stat. 871; section 101(c) of the Defense
Production Act of 1950, 50 U.S.C. 4511(c); E.O.
[[Page 70]]
12919, 59 FR 29525 (June 7, 1994); E.O. 13286, 68 FR 10619 (March 5,
2003); 15 CFR part 700; Defense Priorities and Allocations System
Delegation No. 2 (Aug. 6, 2002), as amended at 15 CFR part 700.
Source: 43 FR 6212, Feb. 14, 1978, unless otherwise noted.
Sec. 216.1 Introduction.
(a) This part describes and establishes the procedures to be used by
the Department of Energy (DOE) in considering and making certain
findings required by section 101(c)(2)(A) of the Defense Production Act
of 1950, as amended, 50 U.S.C. app. 2071(c)(2)(A) (DPA). Section 101(c)
authorizes the allocation of, or priority performance under contracts or
orders (other than contracts of employment) relating to, materials and
equipment, services, or facilities in order to maximize domestic energy
supplies if the findings described in section 101(c)(2) are made. Among
these findings are that such supplies of materials and equipment,
services, or facilities are critical and essential to maintain or
further exploration, production, refining, transportation or the
conservation of energy supplies or for the construction or maintenance
of energy facilities. The function of finding that supplies are critical
and essential was delegated to the Secretary of Energy pursuant to E.O.
12919 (59 FR 29525, June 7, 1994) and Department of Commerce Defense
Priorities and Allocations System Delegation No. 2, 15 CFR part 700.
(b) The purpose of these regulations is to establish the procedures
and criteria to be used by DOE in determining whether programs or
projects maximize domestic energy supplies and whether or not supplies
of materials and equipment, services, or facilities are critical and
essential, as required by DPA section 101(c)(2)(A). The critical and
essential finding will be made only for supplies of materials and
equipment, services, or facilities related to those programs or projects
determined by DOE to maximize domestic energy supplies. These
regulations do not require or imply that the findings, on which the
exercise of such authority is conditioned, will be made in any
particular case.
(c) If DOE determines that a program or project maximizes domestic
energy supplies and finds that supplies of materials and equipment,
services, or facilities are critical and essential to maintain or
further the exploration, production, refining, transportation or
conservation of energy supplies or for the construction or maintenance
of energy facilities, such determination and finding will be
communicated to the Department of Commerce (DOC). If not, the applicant
will be so informed. If the determination and finding described in this
paragraph are made, DOC, pursuant to DPA section 101(c) and section 203
of E.O. 12919, will find whether or not: The supplies of materials and
equipment, services, or facilities in question are scarce; and
maintenance or furtherance of exploration, production, refining,
transportation, or conservation of energy supplies or the construction
or maintenance of energy facilities cannot be reasonably accomplished
without exercising the authority specified in DPA section 101(c). If
these additional two findings are made, DOC will notify DOE, and DOE
will inform the applicant that it has been granted the right to use
priority ratings under the Defense Priorities and Allocations System
(DPAS) regulation established by the DOC, 15 CFR part 700.
[73 FR 10983, Feb. 29, 2008]
Sec. 216.2 Definitions.
As used in these regulations:
(a) Secretary means the Secretary of the Department of Energy.
(b) Applicant means a person requesting priorities or allocation
assistance in connection with an energy program or project.
(c) Application means the written request of an applicant for
assistance.
(d) Assistance means use of the authority vested in the President by
DPA section 101(c) to implement priorities and allocation support.
(e) DHS means the Department of Homeland Security.
(f) DOC means the Department of Commerce.
(g) DOE means the Department of Energy.
(h) Defense Priorities and Allocations System Coordination Office
means the
[[Page 71]]
Department of Energy, Office of Electricity.
(i) Eligible energy program or project means a designated activity
which maximizes domestic energy supplies by furthering the exploration,
production, refining, transportation or conservation of energy supplies
or construction or maintenance of energy facilities within the meaning
of DPA section 101(c), as determined by DOE.
(j) Facilities means all types of buildings, structures, or other
improvements to real property (but excluding farms, churches or other
places of worship, and private dwelling houses), and services relating
to the use of any such building, structure, or other improvement.
(k) Materials and equipment means: (1) Any raw materials (including
minerals, metals, and advanced processed materials), commodities,
articles, components (including critical components), products, and
items of supply; and
(2) Any technical information or services ancillary to the use of
such raw materials, commodities, articles, components, products, or
items.
(l) National Defense means programs for military and energy
production or construction, military assistance to any foreign nation,
stockpiling, space, and any directly related activity. Such term also
includes emergency preparedness activities conducted pursuant to title
VI of the Robert T. Stafford Disaster Relief and Emergency Assistance
Act (42 U.S.C. 5195, et seq.) and critical infrastructure protection and
restoration.
(m) Person means an individual, corporation, partnership,
association, or any other organized group of persons, or legal successor
or representative thereof, or any state or local government or agency
thereof.
(n) Services include any effort that is needed for or incidental to:
(1) The development, production, processing, distribution, delivery,
or use of an industrial resource, or critical technology item; or
(2) The construction of facilities.
[43 FR 6212, Feb. 14, 1978, as amended at 51 FR 8311, Mar. 11, 1986; 73
FR 10983, Feb. 29, 2008; 85 FR 31669, May 27, 2020]
Sec. 216.3 Requests for assistance.
(a) Persons who believe that they perform work associated with a
program or project which may qualify as an eligible energy program or
project and wishing to receive assistance as authorized by DPA section
101(c)(1) may submit an application to DOE requesting DOE to determine
whether a program or project maximizes domestic energy supplies and to
find whether or not specific supplies of materials and equipment,
services, or facilities identified in the application are critical and
essential for a purpose identified in section 101(c). The application
shall be sent to: U.S. Department of Energy, Attn: Office of
Electricity, Forrestal Building, 1000 Independence Avenue, SW.,
Washington, DC 20585. The application shall contain the following
information:
(1) The name and address of the applicant and of its duly authorized
representative.
(2) A description of the energy program or project for which
assistance is requested and an assessment of its impact on the
maximization of domestic energy supplies.
(3) The amount of energy to be produced by the program or project
which is directly affected by the supplies of the materials and
equipment, services, or facilities in question.
(4) A statement explaining why the materials and equipment,
services, or facilities for which assistance is requested are critical
and essential to the construction or operation of the energy project or
program.
(5) A detailed description of the specific supplies of materials and
equipment, services, or facilities in connection with which assistance
is requested, including: Components, performance data (capacity, life
duration, etc.), standards, acceptable tolerances in dimensions and
specifications, current inventory, present and expected rates of use,
anticipated deliveries and substitution possibilities (feasibility of
using other materials and equipment, services, or facilities).
(6) A detailed description of the sources of supply, including: The
name of the regular supplying company or companies, other companies
capable of
[[Page 72]]
supplying the materials and equipment, services, or facilities; location
of supplying plants or plants capable of supplying the needed materials
and equipment, services, or facilities; possible suppliers for identical
or substitutable materials and equipment, services, or facilities and
possible foreign sources of supply.
(7) A detailed description of the delivery situation, including:
Normal delivery times, promised delivery time without priorities
assistance, and delivery time required for expeditious fulfillment or
completion of the program or project.
(8) Evidence of the applicant's unsuccessful efforts to obtain on a
timely basis the materials and equipment, services, or facilities in
question through normal business channels from current or other known
suppliers.
(9) A detailed estimate of the delay in fulfilling or completing the
energy program or project which will be caused by inability to obtain
the specified materials and equipment, services, or facilities in the
usual course of business.
(10) Any known conflicts with rated orders already issued pursuant
to the DPA for supplies of the described materials and equipment,
services, or facilities.
(b) DOE, on consultation with the DOC, may prescribe standard forms
of application or letters of instruction for use by all persons seeking
assistance.
(c) In addition to the information described above, DOE may from
time to time request whatever additional information it reasonably
believes is relevant to the discharge of its functions pursuant to DPA
section 101(c).
[43 FR 6212, Feb. 14, 1978, as amended at 51 FR 8311, Mar. 11, 1986; 73
FR 10983, Feb. 29, 2008; 85 FR 31669, May 27, 2020]
Sec. 216.4 Evaluation by DOE of applications.
(a) Based on the information provided by the applicant and other
available information, DOE will:
(1) Determine whether or not the energy program or project in
connection with which the application is made maximizes domestic energy
supplies and should be designated an eligible energy program or project;
and
(2) Find whether the described supplies of materials and equipment,
services, or facilities are critical and essential to the eligible
energy program or project.
(b) In determining whether the program or project referred to in the
application should be designated an eligible energy program or project,
DOE will consider all factors which it considers relevant including, but
not limited to, the following:
(1) Quantity of energy involved;
(2) Benefits of timely energy program furtherance or project
completion;
(3) Socioeconomic impact;
(4) The need for the end product for which the materials and
equipment, services, or facilities are allegedly required; and
(5) Established national energy policies.
(c) In finding whether the supplies of materials and equipment,
services, or facilities described in the application are critical and
essential to an eligible energy program or project, DOE will consider
all factors which it considers relevant including, but not limited to,
the following:
(1) Availability and utility of substitute materials and equipment,
services, or facilities; and
(2) Impact of the nonavailability of the specific supplies of
materials and equipment, services, or facilities on the furtherance or
timely completion of the approved energy program or project.
(d) Increased costs which may be associated with obtaining materials
and equipment, services, or facilities without assistance shall not be
considered a valid reason for finding the materials and equipment,
services, or facilities to be critical and essential.
(e) After DOE has determined a program or project to be an eligible
energy program or project, this determination shall be deemed made with
regard to subsequent applications involving the same program or project
unless and until DOE announces otherwise.
[43 FR 6212, Feb. 14, 1978, as amended at 73 FR 10984, Feb. 29, 2008]
[[Page 73]]
Sec. 216.5 Notification of findings.
(a) DOE will notify DOC if it finds that supplies of materials and
equipment, services, or facilities for which an applicant requested
assistance are critical and essential to an eligible energy program or
project, and in such cases will forward to DOC the application and
whatever information or comments DOE believes appropriate. If DOE
believes at any time that findings previously made may no longer be
valid, it will immediately notify the DOC and the affected applicant(s)
and afford such applicant(s) an opportunity to show cause why such
findings should not be withdrawn.
(b) If DOC notifies DOE that DOC has found that supplies of
materials and equipment, services, or facilities for which the applicant
requested assistance are scarce and that the related eligible energy
program or project cannot reasonably be accomplished without exercising
the authority specified in DPA section 101(c)(1), DOE will notify the
applicant that the applicant is authorized to place rated orders for
specific materials and equipment, services, or facilities pursuant to
the provisions of the DOC's DPAS regulation.
[73 FR 10984, Feb. 29, 2008]
Sec. 216.6 Petition for reconsideration.
If DOE, after evaluating an application in accordance with Sec.
216.4, does not determine that the energy program or project maximizes
domestic energy supplies or does not find that the supplies of materials
and equipment, services, or facilities described in the application are
critical and essential to an eligible energy program or project, it will
so notify the applicant and the applicant may petition DOE for
reconsideration. If DOE concludes at any time that findings previously
made are no longer valid and should be withdrawn, DOE will so notify the
affected applicant(s), and such applicant(s) may petition DOE for
reconsideration of the withdrawal decision. A petition is deemed
accepted when received by DOE at the address stated in Sec. 216.8. DOE
will consider the petition for reconsideration and either grant or deny
the relief requested. Written notice of the decision and of the reasons
for the decision will be provided to the applicant. There has not been
an exhaustion of administrative remedies until a petition for
reconsideration has been submitted and the review procedure completed by
grant or denial of the relief requested. The denial of relief requested
in a petition for reconsideration is a final administrative decision.
[43 FR 6212, Feb. 14, 1978, as amended at 51 FR 8312, Mar. 11, 1986; 73
FR 10984, Feb. 29, 2008]
Sec. 216.7 Conflict in priority orders.
If it appears that the use of assistance pursuant to DPA section
101(c) creates or threatens to create a conflict with priorities and
allocation support provided in connection with the national defense
pursuant to DPA section 101(a), DOE will work with the DOC and other
claimant agencies affected by the conflict to reschedule deliveries or
otherwise accommodate the competing demands. If acceptable solutions
cannot be agreed upon by the claimant agencies DHS will attempt to
resolve theconflicts.
[43 FR 6212, Feb. 14, 1978, as amended at 51 FR 8312, Mar. 11, 1986; 73
FR 10984, Feb. 29, 2008]
Sec. 216.8 Communications.
All written communications concerning these regulations shall be
addressed to: U.S. Department of Energy, Attention: Office of
Electricity, Forrestal Building, 1000 Independence Avenue, SW.,
Washington, DC 20585.
[73 FR 10984, Feb. 29, 2008, as amended at 85 FR 31669, May 27, 2020]
Sec. 216.9 Violations.
Any person who willfully furnishes false information or conceals any
material fact in the course of the application process or in a petition
for reconsideration is guilty of a crime, and upon conviction may be
punished by fine or imprisonment or both.
PART 217_ENERGY PRIORITIES AND ALLOCATIONS SYSTEM--Table of Contents
Subpart A_General
Sec.
217.1 Purpose of this part.
[[Page 74]]
217.2 Priorities and allocations authority.
217.3 Program eligibility.
Subpart B_Definitions
217.20 Definitions.
Subpart C_Placement of Rated Orders
217.30 Delegation of authority.
217.31 Priority ratings.
217.32 Elements of a rated order.
217.33 Acceptance and rejection of rated orders.
217.34 Preferential scheduling.
217.35 Extension of priority ratings.
217.36 Changes or cancellations of priority ratings and rated orders.
217.37 Use of rated orders.
217.38 Limitations on placing rated orders.
Subpart D_Special Priorities Assistance
217.40 General provisions.
217.41 Requests for priority rating authority.
217.42 Examples of assistance.
217.43 Criteria for assistance.
217.44 Instances where assistance may not be provided.
Subpart E_Allocation Actions
217.50 Policy.
217.51 General procedures.
217.52 Controlling the general distribution of a material in the
civilian market.
217.53 Types of allocation orders.
217.54 Elements of an allocation order.
217.55 Mandatory acceptance of an allocation order.
217.56 Changes or cancellations of an allocation order.
Subpart F_Official Actions
217.60 General provisions.
217.61 Rating Authorizations.
217.62 Directives.
217.63 Letters and Memoranda of Understanding.
Subpart G_Compliance
217.70 General provisions.
217.71 Audits and investigations.
217.72 Compulsory process.
217.73 Notification of failure to comply.
217.74 Violations, penalties, and remedies.
217.75 Compliance conflicts.
Subpart H_Adjustments, Exceptions, and Appeals
217.80 Adjustments or exceptions.
217.81 Appeals.
Subpart I_Miscellaneous Provisions
217.90 Protection against claims.
217.91 Records and reports.
217.92 Applicability of this part and official actions.
217.93 Communications.
Appendix I to Part 217--Sample Form DOE F 544 (05-11)
Authority: Defense Production Act of 1950, as amended, 50 U.S.C.
4501-4568; E.O. 12919, as amended, (59 FR 29525 June 7, 1994).
Source: 76 FR 33619, June 9, 2011, unless otherwise noted.
Subpart A_General
Sec. 217.1 Purpose of this part.
This part provides guidance and procedures for use of the Defense
Production Act section 101(a) priorities and allocations authority with
respect to all forms of energy necessary or appropriate to promote the
national defense. (The guidance and procedures in this part are
consistent with the guidance and procedures provided in other
regulations that, as a whole, form the Federal Priorities and
Allocations System. Guidance and procedures for use of the Defense
Production Act priorities and allocations authority with respect to
other types of resources are provided for: Food resources, food resource
facilities, and the domestic distribution of farm equipment and
commercial fertilizer; health resources; all forms of civil
transportation (49 CFR Part 33); water resources; and all other
materials, services, and facilities, including construction materials in
the Defense Priorities and Allocations System (DPAS) regulation (15 CFR
Part 700).) Department of Energy (DOE) regulations at 10 CFR Part 216
describe and establish the procedures to be used by DOE in considering
and making certain findings required by section 101(c)(2)(A) of the
Defense Production Act of 1950, as amended.
Sec. 217.2 Priorities and allocations authority.
(a) Section 201 of E.O. 12919 (59 FR 29525) delegates the
President's authority under section 101 of the Defense Production Act to
require acceptance and priority performance of contracts
[[Page 75]]
and orders (other than contracts of employment) to promote the national
defense over performance of any other contracts or orders, and to
allocate materials, services, and facilities as deemed necessary or
appropriate to promote the national defense to:
(1) The Secretary of Agriculture with respect to food resources,
food resource facilities, and the domestic distribution of farm
equipment and commercial fertilizer;
(2) The Secretary of Energy with respect to all forms of energy;
(3) The Secretary of Health and Human Services with respect to
health resources;
(4) The Secretary of Transportation with respect to all forms of
civil transportation;
(5) The Secretary of Defense with respect to water resources; and
(6) The Secretary of Commerce for all other materials, services, and
facilities, including construction materials.
(b) Section 202 of E.O. 12919 states that the priorities and
allocations authority delegated in section 201 of this order may be used
only to support programs that have been determined in writing as
necessary or appropriate to promote the national defense:
(1) By the Secretary of Defense with respect to military production
and construction, military assistance to foreign nations, stockpiling,
outer space, and directly related activities;
(2) By the Secretary of Energy with respect to energy production and
construction, distribution and use, and directly related activities; and
(3) By the Secretary of Homeland Security with respect to essential
civilian needs supporting national defense, including civil defense and
continuity of government and directly related activities.
Sec. 217.3 Program eligibility.
Certain programs to promote the national defense are eligible for
priorities and allocations support. These include programs for military
and energy production or construction, military or critical
infrastructure assistance to any foreign nation, deploying and
sustaining military forces, homeland security, stockpiling, space, and
any directly related activity. Other eligible programs include emergency
preparedness activities conducted pursuant to title VI of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 et
seq.) and critical infrastructure protection and restoration.
Subpart B_Definitions
Sec. 217.20 Definitions.
The following definitions pertain to all sections of this part:
Allocation order means an official action to control the
distribution of materials, services, or facilities for a purpose deemed
necessary or appropriate to promote the national defense.
Allotment means an official action that specifies the maximum
quantity or use of a material, service, or facility authorized for a
specific use to promote the national defense.
Approved program means a program determined by the Secretary of
Defense, the Secretary of Energy, or the Secretary of Homeland Security
to be necessary or appropriate to promote the national defense, in
accordance with section 202 of E.O. 12919.
Civil transportation includes movement of persons and property by
all modes of transportation in interstate, intrastate, or foreign
commerce within the United States, its territories and possessions, and
the District of Columbia, and, without limitation, related public
storage and warehousing, ports, services, equipment and facilities, such
as transportation carrier shop and repair facilities. However, ``civil
transportation'' shall not include transportation owned or controlled by
the Department of Defense, use of petroleum and gas pipelines, and coal
slurry pipelines used only to supply energy production facilities
directly. As applied herein, ``civil transportation'' shall include
direction, control, and coordination of civil transportation capacity
regardless of ownership.
Construction means the erection, addition, extension, or alteration
of any building, structure, or project, using materials or products
which are to be an integral and permanent part of the building,
structure, or project. Construction does not include maintenance and
repair.
[[Page 76]]
Critical infrastructure means any systems and assets, whether
physical or cyber-based, so vital to the United States that the
degradation or destruction of such systems and assets would have a
debilitating impact on national security, including, but not limited to,
national economic security and national public health or safety.
Defense Production Act means the Defense Production Act of 1950, as
amended (50 U.S.C. App. 2061 et seq.).
Delegate Agency means a Federal government agency authorized by
delegation from the Department of Energy to place priority ratings on
contracts or orders needed to support approved programs.
Directive means an official action that requires a person to take or
refrain from taking certain actions in accordance with its provisions.
Emergency preparedness means all those activities and measures
designed or undertaken to prepare for or minimize the effects of a
hazard upon the civilian population, to deal with the immediate
emergency conditions which would be created by the hazard, and to
effectuate emergency repairs to, or the emergency restoration of, vital
utilities and facilities destroyed or damaged by the hazard. Such term
includes the following:
(1) Measures to be undertaken in preparation for anticipated hazards
(including the establishment of appropriate organizations, operational
plans, and supporting agreements, the recruitment and training of
personnel, the conduct of research, the procurement and stockpiling of
necessary materials and supplies, the provision of suitable warning
systems, the construction or preparation of shelters, shelter areas, and
control centers, and, when appropriate, the nonmilitary evacuation of
the civilian population).
(2) Measures to be undertaken during a hazard (including the
enforcement of passive defense regulations prescribed by duly
established military or civil authorities, the evacuation of personnel
to shelter areas, the control of traffic and panic, and the control and
use of lighting and civil communications).
(3) Measures to be undertaken following a hazard (including
activities for fire fighting, rescue, emergency medical, health and
sanitation services, monitoring for specific dangers of special weapons,
unexploded bomb reconnaissance, essential debris clearance, emergency
welfare measures, and immediately essential emergency repair or
restoration of damaged vital facilities).
Energy means all forms of energy including petroleum, gas (both
natural and manufactured), electricity, solid fuels (including all forms
of coal, coke, coal chemicals, coal liquification, and coal
gasification), and atomic energy, and the production, conservation, use,
control, and distribution (including pipelines) of all of these forms of
energy.
Facilities includes all types of buildings, structures, or other
improvements to real property (but excluding farms, churches or other
places of worship, and private dwelling houses), and services relating
to the use of any such building, structure, or other improvement.
Farm equipment means equipment, machinery, and repair parts
manufactured for use on farms in connection with the production or
preparation for market use of food resources.
Fertilizer means any product or combination of products that contain
one or more of the elements--nitrogen, phosphorus, and potassium--for
use as a plant nutrient.
Food resources means all commodities and products, simple, mixed, or
compound, or complements to such commodities or products, that are
capable of being ingested by either human beings or animals,
irrespective of other uses to which such commodities or products may be
put, at all stages of processing from the raw commodity to the products
thereof in vendible form for human or animal consumption. ``Food
resources'' also means all starches, sugars, vegetable and animal or
marine fats and oils, cotton, tobacco, wool, mohair, hemp, flax fiber,
and naval stores, but does not mean any such material after it loses its
identity as an agricultural commodity or agricultural product.
Food resource facilities means plants, machinery, vehicles
(including on-farm), and other facilities required for
[[Page 77]]
the production, processing, distribution, and storage (including cold
storage) of food resources, livestock and poultry feed and seed, and for
the domestic distribution of farm equipment and fertilizer (excluding
transportation thereof).
Hazard means an emergency or disaster resulting from:
(1) A natural disaster; or
(2) An accidental or human-caused event.
Health resources means drugs, biological products, medical devices,
diagnostics, materials, facilities, health supplies, services and
equipment required to diagnose, prevent the impairment of, improve, or
restore the physical or mental health conditions of the population.
Homeland security includes efforts--
(1) To prevent terrorist attacks within the United States;
(2) To reduce the vulnerability of the United States to terrorism;
(3) To minimize damage from a terrorist attack in the United States;
and
(4) To recover from a terrorist attack in the United States.
Industrial resources means all materials, services, and facilities,
including construction materials, but not including: food resources,
food resource facilities, and the domestic distribution of farm
equipment and commercial fertilizer; all forms of energy; health
resources; all forms of civil transportation; and water resources.
Item means any raw, in process, or manufactured material, article,
commodity, supply, equipment, component, accessory, part, assembly, or
product of any kind, technical information, process, or service.
Maintenance and repair and operating supplies or MRO--
(1) ``Maintenance'' is the upkeep necessary to continue any plant,
facility, or equipment in working condition.
(2) ``Repair'' is the restoration of any plant, facility, or
equipment to working condition when it has been rendered unsafe or unfit
for service by wear and tear, damage, or failure of parts.
(3) ``Operating supplies'' are any resources carried as operating
supplies according to a person's established accounting practice.
Operating supplies may include hand tools and expendable tools, jigs,
dies, fixtures used on production equipment, lubricants, cleaners,
chemicals and other expendable items.
(4) MRO does not include items produced or obtained for sale to
other persons or for installation upon or attachment to the property of
another person, or items required for the production of such items;
items needed for the replacement of any plant, facility, or equipment;
or items for the improvement of any plant, facility, or equipment by
replacing items which are still in working condition with items of a new
or different kind, quality, or design.
Materials includes--
(1) Any raw materials (including minerals, metals, and advanced
processed materials), commodities, articles, components (including
critical components), products, and items of supply; and
(2) Any technical information or services ancillary to the use of
any such materials, commodities, articles, components, products, or
items.
(3) Natural resources such as oil and gas.
National defense means programs for military and energy production
or construction, military or critical infrastructure assistance to any
foreign nation, homeland security, stockpiling, space, and any directly
related activity. Such term includes emergency preparedness activities
conducted pursuant to title VI of the Robert T. Stafford Disaster Relief
and Emergency Assistance Act (42 U.S.C. 5195, et seq.) and critical
infrastructure protection and restoration.
Official action means an action taken by the Department of Energy or
another resource agency under the authority of the Defense Production
Act, E.O. 12919, and this part or another regulation under the Federal
Priorities and Allocations System. Such actions include the issuance of
Rating Authorizations, Directives, Set Asides, Allotments, Letters of
Understanding, Memoranda of Understanding, Demands for Information,
Inspection Authorizations, and Administrative Subpoenas.
[[Page 78]]
Person includes an individual, corporation, partnership,
association, or any other organized group of persons, or legal successor
or representative thereof, or any State or local government or agency
thereof.
Rated order means a prime contract, a subcontract, or a purchase
order in support of an approved program issued in accordance with the
provisions of this part.
Resource agency means any agency delegated priorities and
allocations authority as specified in Sec. 217.2.
Secretary means the Secretary of Energy.
Services includes any effort that is needed for or incidental to--
(1) The development, production, processing, distribution, delivery,
or use of an industrial resource or a critical technology item;
(2) The construction of facilities;
(3) The movement of individuals and property by all modes of civil
transportation; or
(4) Other national defense programs and activities.
Set-aside means an official action that requires a person to reserve
materials, services, or facilities capacity in anticipation of the
receipt of rated orders.
Stafford Act means title VI (Emergency Preparedness) of the Robert
T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42
U.S.C. 5195-5197g).
Water resources means all usable water, from all sources, within the
jurisdiction of the United States, which can be managed, controlled, and
allocated to meet emergency requirements.
Subpart C_Placement of Rated Orders
Sec. 217.30 Delegations of authority.
(a) The priorities and allocations authorities of the President
under Title I of the Defense Production Act with respect to all forms of
energy have been delegated to the Secretary of Energy under E.O. 12919
of June 3, 1994 (59 FR 29525).
(b) The Department of Commerce has delegated authority to the
Department of Energy to provide for extension of priority ratings for
``industrial resources,'' as provided in Sec. 261.35 of this part, to
support rated orders for all forms of energy.
Sec. 217.31 Priority ratings.
(a) Levels of priority.
(1) There are two levels of priority established by the Energy
Priorities and Allocations System regulations, identified by the rating
symbols ``DO'' and ``DX''.
(2) All DO-rated orders have equal priority with each other and take
precedence over unrated orders. All DX-rated orders have equal priority
with each other and take precedence over DO-rated orders and unrated
orders. (For resolution of conflicts among rated orders of equal
priority, see Sec. 217.34(c).)
(3) In addition, a Directive regarding priority treatment for a
given item issued by the Department of Energy for that item takes
precedence over any DX-rated order, DO-rated order, or unrated order, as
stipulated in the Directive. (For a full discussion of Directives, see
Sec. 217.62.)
(b) Program identification symbols. Program identification symbols
indicate which approved program is being supported by a rated order. The
list of currently approved programs and their identification symbols are
listed in Schedule 1, set forth as an appendix to 15 CFR part 700. For
example, DO-F3 identifies a domestic energy construction program.
Additional programs may be approved under the procedures of E.O. 12919
at any time. Program identification symbols do not connote any priority.
(c) Priority ratings. A priority rating consists of the rating
symbol--DO or DX--and the program identification symbol, such as F1, F2,
or F3. Thus, a contract for a domestic energy construction program will
contain a DO-F3 or DX-F3 priority rating.
Sec. 217.32 Elements of a rated order.
Each rated order must include:
(a) The appropriate priority rating (e.g. DO-F1 or DX-F1)
(b) A required delivery date or dates. The words ``immediately'' or
``as soon as possible'' do not constitute a delivery date. A
``requirements contract'',
[[Page 79]]
``basic ordering agreement'', ``prime vendor contract'', or similar
procurement document bearing a priority rating may contain no specific
delivery date or dates and may provide for the furnishing of items or
service from time to time or within a stated period against specific
purchase orders, such as ``calls'', ``requisitions'', and ``delivery
orders''. These purchase orders must specify a required delivery date or
dates and are to be considered as rated as of the date of their receipt
by the supplier and not as of the date of the original procurement
document;
(c) The written signature on a manually placed order, or the digital
signature or name on an electronically placed order, of an individual
authorized to sign rated orders for the person placing the order. The
signature or use of the name certifies that the rated order is
authorized under this part and that the requirements of this part are
being followed; and
(d)(1) A statement that reads in substance:
This is a rated order certified for national defense use, and you
are required to follow all the provisions of the Energy Priorities and
Allocations System regulation at 10 CFR part 217.
(2) If the rated order is placed in support of emergency
preparedness requirements and expedited action is necessary and
appropriate to meet these requirements, the following sentences should
be added following the statement set forth in paragraph (d)(1) of this
section:
This rated order is placed for the purpose of emergency
preparedness. It must be accepted or rejected within 2 days after
receipt of the order if (1) The order is issued in response to a hazard
that has occurred; or
(2) If the order is issued to prepare for an imminent hazard, as
specified in EPAS Section 217.33(e), 10 CFR 217.33(e).
Sec. 217.33 Acceptance and rejection of rated orders.
(a) Mandatory acceptance. (1) Except as otherwise specified in this
section, a person shall accept every rated order received and must fill
such orders regardless of any other rated or unrated orders that have
been accepted.
(2) A person shall not discriminate against rated orders in any
manner such as by charging higher prices or by imposing different terms
and conditions than for comparable unrated orders.
(b) Mandatory rejection. Unless otherwise directed by the Department
of Energy for a rated order involving all forms of energy:
(1) A person shall not accept a rated order for delivery on a
specific date if unable to fill the order by that date. However, the
person must inform the customer of the earliest date on which delivery
can be made and offer to accept the order on the basis of that date.
Scheduling conflicts with previously accepted lower rated or unrated
orders are not sufficient reason for rejection under this section.
(2) A person shall not accept a DO-rated order for delivery on a
date which would interfere with delivery of any previously accepted DO-
or DX-rated orders. However, the person must offer to accept the order
based on the earliest delivery date otherwise possible.
(3) A person shall not accept a DX-rated order for delivery on a
date which would interfere with delivery of any previously accepted DX-
rated orders, but must offer to accept the order based on the earliest
delivery date otherwise possible.
(4) If a person is unable to fill all of the rated orders of equal
priority status received on the same day, the person must accept, based
upon the earliest delivery dates, only those orders which can be filled,
and reject the other orders. For example, a person must accept order A
requiring delivery on December 15 before accepting order B requiring
delivery on December 31. However, the person must offer to accept the
rejected orders based on the earliest delivery dates otherwise possible.
(c) Optional rejection. Unless otherwise directed by the Department
of Energy for a rated order involving all forms of energy, rated orders
may be rejected in any of the following cases as long as a supplier does
not discriminate among customers:
[[Page 80]]
(1) If the person placing the order is unwilling or unable to meet
regularly established terms of sale or payment;
(2) If the order is for an item not supplied or for a service not
capable of being performed;
(3) If the order is for an item or service produced, acquired, or
provided only for the supplier's own use for which no orders have been
filled for two years prior to the date of receipt of the rated order.
If, however, a supplier has sold some of these items or provided similar
services, the supplier is obligated to accept rated orders up to that
quantity or portion of production or service, whichever is greater, sold
or provided within the past two years;
(4) If the person placing the rated order, other than the U.S.
Government, makes the item or performs the service being ordered;
(5) If acceptance of a rated order or performance against a rated
order would violate any other regulation, official action, or order of
the Department of Energy, issued under the authority of the Defense
Production Act or another relevant statute.
(d) Customer notification requirements. (1) Except as provided in
this paragraph, a person must accept or reject a rated order in writing
or electronically within fifteen (15) working days after receipt of a DO
rated order and within ten (10) working days after receipt of a DX rated
order. If the order is rejected, the person must give reasons in writing
or electronically for the rejection.
(2) If a person has accepted a rated order and subsequently finds
that shipment or performance will be delayed, the person must notify the
customer immediately, give the reasons for the delay, and advise of a
new shipment or performance date. If notification is given verbally,
written or electronic confirmation must be provided within five (5)
working days.
(e) Exception for emergency preparedness conditions. If the rated
order is placed for the purpose of emergency preparedness, a person must
accept or reject a rated order and transmit the acceptance or rejection
in writing or in an electronic format within 2 days after receipt of the
order if:
(1) The order is issued in response to a hazard that has occurred;
or
(2) The order is issued to prepare for an imminent hazard.
Sec. 217.34 Preferential scheduling.
(a) A person must schedule operations, including the acquisition of
all needed production items or services, in a timely manner to satisfy
the delivery requirements of each rated order. Modifying production or
delivery schedules is necessary only when required delivery dates for
rated orders cannot otherwise be met.
(b) DO-rated orders must be given production preference over unrated
orders, if necessary to meet required delivery dates, even if this
requires the diversion of items being processed or ready for delivery or
services being performed against unrated orders. Similarly, DX-rated
orders must be given preference over DO-rated orders and unrated orders.
(Examples: If a person receives a DO-rated order with a delivery date of
June 3 and if meeting that date would mean delaying production or
delivery of an item for an unrated order, the unrated order must be
delayed. If a DX-rated order is received calling for delivery on July 15
and a person has a DO-rated order requiring delivery on June 2 and
operations can be scheduled to meet both deliveries, there is no need to
alter production schedules to give any additional preference to the DX-
rated order.)
(c) Conflicting rated orders.
(1) If a person finds that delivery or performance against any
accepted rated orders conflicts with the delivery or performance against
other accepted rated orders of equal priority status, the person shall
give precedence to the conflicting orders in the sequence in which they
are to be delivered or performed (not to the receipt dates). If the
conflicting orders are scheduled to be delivered or performed on the
same day, the person shall give precedence to those orders that have the
earliest receipt dates.
(2) If a person is unable to resolve rated order delivery or
performance conflicts under this section, the person should promptly
seek special priorities assistance as provided in Sec. Sec. 217.40
through 217.44. If the person's customer objects to the rescheduling of
delivery
[[Page 81]]
or performance of a rated order, the customer should promptly seek
special priorities assistance as provided in Sec. Sec. 217.40 through
217.44. For any rated order against which delivery or performance will
be delayed, the person must notify the customer as provided in Sec.
217.33.
(d) If a person is unable to purchase needed production items in
time to fill a rated order by its required delivery date, the person
must fill the rated order by using inventoried production items. A
person who uses inventoried items to fill a rated order may replace
those items with the use of a rated order as provided in Sec.
217.37(b).
Sec. 217.35 Extension of priority ratings.
(a) A person must use rated orders with suppliers to obtain items or
services needed to fill a rated order. The person must use the priority
rating indicated on the customer's rated order, except as otherwise
provided in this part or as directed by the Department of Energy. For
example, if a person is in receipt of a DO-F1 rated order for an
electric power sub-station, and needs to purchase a transformer for its
manufacture, that person must use a DO-F1 rated order to obtain the
needed transformer.
(b) The priority rating must be included on each successive order
placed to obtain items or services needed to fill a customer's rated
order. This continues from contractor to subcontractor to supplier
throughout the entire procurement chain.
Sec. 217.36 Changes or cancellations of priority ratings and rated orders.
(a) The priority rating on a rated order may be changed or canceled
by:
(1) An official action of the Department of Energy; or
(2) Written notification from the person who placed the rated order.
(b) If an unrated order is amended so as to make it a rated order,
or a DO rating is changed to a DX rating, the supplier must give the
appropriate preferential treatment to the order as of the date the
change is received by the supplier.
(c) An amendment to a rated order that significantly alters a
supplier's original production or delivery schedule shall constitute a
new rated order as of the date of its receipt. The supplier must accept
or reject the amended order according to the provisions of Sec. 217.33.
(d) The following amendments do not constitute a new rated order: a
change in shipping destination; a reduction in the total amount of the
order; an increase in the total amount of the order which has negligible
impact upon deliveries; a minor variation in size or design; or a change
which is agreed upon between the supplier and the customer.
(e) If a person no longer needs items or services to fill a rated
order, any rated orders placed with suppliers for the items or services,
or the priority rating on those orders, must be canceled.
(f) When a priority rating is added to an unrated order, or is
changed or canceled, all suppliers must be promptly notified in writing.
Sec. 217.37 Use of rated orders.
(a) A person must use rated orders to obtain:
(1) Items which will be physically incorporated into other items to
fill rated orders, including that portion of such items normally
consumed or converted into scrap or by-products in the course of
processing;
(2) Containers or other packaging materials required to make
delivery of the finished items against rated orders;
(3) Services, other than contracts of employment, needed to fill
rated orders; and
(4) MRO needed to produce the finished items to fill rated orders.
(b) A person may use a rated order to replace inventoried items
(including finished items) if such items were used to fill rated orders,
as follows:
(1) The order must be placed within 90 days of the date of use of
the inventory.
(2) A DO rating and the program identification symbol indicated on
the customer's rated order must be used on the order. A DX rating may
not be used even if the inventory was used to fill a DX-rated order.
(3) If the priority ratings on rated orders from one customer or
several customers contain different program identification symbols, the
rated orders
[[Page 82]]
may be combined. In this case, the program identification symbol ``H1''
must be used (i.e., DO-H1).
(c) A person may combine DX- and DO-rated orders from one customer
or several customers if the items or services covered by each level of
priority are identified separately and clearly. If different program
identification symbols are indicated on those rated orders of equal
priority, the person must use the program identification symbol ``H1''
(i.e., DO-H1 or DX-H1).
(d) Combining rated and unrated orders.
(1) A person may combine rated and unrated order quantities on one
purchase order provided that:
(i) The rated quantities are separately and clearly identified; and
(ii) The four elements of a rated order, as required by Sec.
217.32, are included on the order with the statement required in Sec.
217.32(d) modified to read in substance:
This purchase order contains rated order quantities certified for
national defense use, and you are required to follow all applicable
provisions of the Energy Priorities and Allocations System regulations
at 10 CFR part 217 only as it pertains to the rated quantities.
(2) A supplier must accept or reject the rated portion of the
purchase order as provided in Sec. 217.33 and give preferential
treatment only to the rated quantities as required by this part. This
part may not be used to require preferential treatment for the unrated
portion of the order.
(3) Any supplier who believes that rated and unrated orders are
being combined in a manner contrary to the intent of this part or in a
fashion that causes undue or exceptional hardship may submit a request
for adjustment or exception under Sec. 217.80.
(e) A person may place a rated order for the minimum commercially
procurable quantity even if the quantity needed to fill a rated order is
less than that minimum. However, a person must combine rated orders as
provided in paragraph (c) of this section, if possible, to obtain
minimum procurable quantities.
(f) A person is not required to place a priority rating on an order
for less than $50,000, or one-half of the Simplified Acquisition
Threshold (as established in the Federal Acquisition Regulation (FAR)
(see FAR section 2.101) or in other authorized acquisition regulatory or
management systems) whichever amount is greater, provided that delivery
can be obtained in a timely fashion without the use of the priority
rating.
Sec. 217.38 Limitations on placing rated orders.
(a) General limitations.
(1) A person may not place a DO- or DX-rated order unless entitled
to do so under this part.
(2) Rated orders may not be used to obtain:
(i) Delivery on a date earlier than needed;
(ii) A greater quantity of the item or services than needed, except
to obtain a minimum procurable quantity. Separate rated orders may not
be placed solely for the purpose of obtaining minimum procurable
quantities on each order;
(iii) Items or services in advance of the receipt of a rated order,
except as specifically authorized by the Department of Energy (see Sec.
217.41(c) for information on obtaining authorization for a priority
rating in advance of a rated order);
(iv) Items that are not needed to fill a rated order, except as
specifically authorized by the Department of Energy, or as otherwise
permitted by this part; or
(v) Any of the following items unless specific priority rating
authority has been obtained from the Department of Energy, a Delegate
Agency, or the Department of Commerce, as appropriate:
(A) Items for plant improvement, expansion, or construction, unless
they will be physically incorporated into a construction project covered
by a rated order; and
(B) Production or construction equipment or items to be used for the
manufacture of production equipment. [For information on requesting
priority rating authority, see Sec. 217.21.]
(vi) Any items related to the development of chemical or biological
warfare capabilities or the production of chemical or biological
weapons, unless such development or production has been
[[Page 83]]
authorized by the President or the Secretary of Defense.
(b) Jurisdictional limitations.
(1) Unless authorized by the resource agency with jurisdiction, the
provisions of this part are not applicable to the following resources:
(i) Food resources, food resource facilities, and the domestic
distribution of farm equipment and commercial fertilizer (Resource
agency with jurisdiction--Department of Agriculture);
(ii) Health resources (Resource agency with jurisdiction--Department
of Health and Human Services);
(iii) All forms of civil transportation (Resource agency with
jurisdiction--Department of Transportation);
(iv) Water resources (Resource agency with jurisdiction--Department
of Defense/U.S. Army Corps of Engineers); and
(v) Communications services (Resource agency with jurisdiction--
National Communications System under E. O. 12472 of April 3, 1984).
Subpart D_Special Priorities Assistance
Sec. 217.40 General provisions.
(a) The EPAS is designed to be largely self-executing. However, from
time-to-time production or delivery problems will arise. In this event,
a person should immediately contact the Office of Electricity, for
guidance or assistance (Contact the Deputy Assistant Secretary of the
Department of Energy overseeing the Defense Production Act program, as
listed in Sec. 217.93). If the problem(s) cannot otherwise be resolved,
special priorities assistance should be sought from the Department of
Energy through the Office of Electricity (Contact the Deputy Assistant
Secretary of the Department of Energy overseeing the Defense Production
Act program, as listed in Sec. 217.93). If the Department of Energy is
unable to resolve the problem or to authorize the use of a priority
rating and believes additional assistance is warranted, the Department
of Energy may forward the request to another agency with resource
jurisdiction, as appropriate, for action. Special priorities assistance
is provided to alleviate problems that do arise.
(b) Special priorities assistance is available for any reason
consistent with this part. Generally, special priorities assistance is
provided to expedite deliveries, resolve delivery conflicts, place rated
orders, locate suppliers, or to verify information supplied by customers
and vendors. Special priorities assistance may also be used to request
rating authority for items that are not normally eligible for priority
treatment.
(c) A request for special priorities assistance or priority rating
authority must be submitted on Form DOE F 544 (05-11) (OMB control
number 1910-5159) to the Deputy Assistant Secretary of the Department of
Energy overseeing the Defense Production Act program, as listed in Sec.
217.93. Form DOE F 544 (05-11) may be obtained from the Department of
Energy or a Delegate Agency. A sample Form DOE F 544 (05-11) is attached
at appendix I to this part.
[76 FR 33619, June 9, 2011, as amended at 85 FR 31670, May 27, 2020]
Sec. 217.41 Requests for priority rating authority.
(a) If a rated order is likely to be delayed because a person is
unable to obtain items or services not normally rated under this part,
the person may request the authority to use a priority rating in
ordering the needed items or services.
(b) Rating authority for production or construction equipment.
(1) A request for priority rating authority for production or
construction equipment must be submitted to the U.S. Department of
Commerce on Form BIS-999.
(2) When the use of a priority rating is authorized for the
procurement of production or construction equipment, a rated order may
be used either to purchase or to lease such equipment. However, in the
latter case, the equipment may be leased only from a person engaged in
the business of leasing such equipment or from a person willing to lease
rather than sell.
(c) Rating authority in advance of a rated prime contract. (1) In
certain
[[Page 84]]
cases and upon specific request, the Department of Energy, in order to
promote the national defense, may authorize or request the Department of
Commerce to authorize, as appropriate, a person to place a priority
rating on an order to a supplier in advance of the issuance of a rated
prime contract. In these instances, the person requesting advance rating
authority must obtain sponsorship of the request from the Department of
Energy or the appropriate Delegate Agency. The person shall also assume
any business risk associated with the placing of rated orders in the
event the rated prime contract is not issued.
(2) The person must state the following in the request:
It is understood that the authorization of a priority rating in
advance of our receiving a rated prime contract from the Department of
Energy and our use of that priority rating with our suppliers in no way
commits the Department of Energy, the Department of Commerce, or any
other government agency to enter into a contract or order or to expend
funds. Further, we understand that the Federal Government shall not be
liable for any cancellation charges, termination costs, or other damages
that may accrue if a rated prime contract is not eventually placed and,
as a result, we must subsequently cancel orders placed with the use of
the priority rating authorized as a result of this request.
(3) In reviewing requests for rating authority in advance of a rated
prime contract, the Department of Energy or the Department of Commerce,
as appropriate, will consider, among other things, the following
criteria:
(i) The probability that the prime contract will be awarded;
(ii) The impact of the resulting rated orders on suppliers and on
other authorized programs;
(iii) Whether the contractor is the sole source;
(iv) Whether the item being produced has a long lead time;
(v) The time period for which the rating is being requested.
(4) The Department of Energy or the Department of Commerce, as
appropriate, may require periodic reports on the use of the rating
authority granted under paragraph (c) of this section.
(5) If a rated prime contract is not issued, the person shall
promptly notify all suppliers who have received rated orders pursuant to
the advanced rating authority that the priority rating on those orders
is cancelled.
Sec. 217.42 Examples of assistance.
(a) While special priorities assistance may be provided for any
reason in support of this part, it is usually provided in situations
where:
(1) A person is experiencing difficulty in obtaining delivery
against a rated order by the required delivery date; or
(2) A person cannot locate a supplier for an item or service needed
to fill a rated order.
(b) Other examples of special priorities assistance include:
(1) Ensuring that rated orders receive preferential treatment by
suppliers;
(2) Resolving production or delivery conflicts between various rated
orders;
(3) Assisting in placing rated orders with suppliers;
(4) Verifying the urgency of rated orders; and
(5) Determining the validity of rated orders.
Sec. 217.43 Criteria for assistance.
Requests for special priorities assistance should be timely, i.e.,
the request has been submitted promptly and enough time exists for the
Department of Energy, the Delegate Agency, or the Department of Commerce
for industrial resources to effect a meaningful resolution to the
problem, and must establish that:
(a) There is an urgent need for the item; and
(b) The applicant has made a reasonable effort to resolve the
problem.
Sec. 217.44 Instances where assistance may not be provided.
Special priorities assistance is provided at the discretion of the
Department of Energy, the Delegate Agencies, or the Department of
Commerce when it is determined that such assistance is warranted to meet
the objectives of this part. Examples where assistance may not be
provided include situations when a person is attempting to:
[[Page 85]]
(a) Secure a price advantage;
(b) Obtain delivery prior to the time required to fill a rated
order;
(c) Gain competitive advantage;
(d) Disrupt an industry apportionment program in a manner designed
to provide a person with an unwarranted share of scarce items; or
(e) Overcome a supplier's regularly established terms of sale or
conditions of doing business.
Subpart E_Allocation Actions
Sec. 217.50 Policy.
(a) It is the policy of the Federal Government that the allocations
authority under title I of the Defense Production Act may:
(1) Only be used when there is insufficient supply of a material,
service, or facility to satisfy national defense supply requirements
through the use of the priorities authority or when the use of the
priorities authority would cause a severe and prolonged disruption in
the supply of materials, services, or facilities available to support
normal U.S. economic activities; and
(2) Not be used to ration materials or services at the retail level.
(b) Allocation orders, when used, will be distributed equitably
among the suppliers of the materials, services, or facilities being
allocated and not require any person to relinquish a disproportionate
share of the civilian market.
Sec. 217.51 General procedures.
When the Department of Energy plans to execute its allocations
authority to address a supply problem within its resource jurisdiction,
the Department shall develop a plan that includes the following
information:
(a) A copy of the written determination made, in accordance with
section 202 of E.O. 12919, that the program or programs that would be
supported by the allocation action are necessary or appropriate to
promote the national defense;
(b) A detailed description of the situation to include any unusual
events or circumstances that have created the requirement for an
allocation action;
(c) A statement of the specific objective(s) of the allocation
action;
(d) A list of the materials, services, or facilities to be
allocated;
(e) A list of the sources of the materials, services, or facilities
that will be subject to the allocation action;
(f) A detailed description of the provisions that will be included
in the allocation orders, including the type(s) of allocation orders,
the percentages or quantity of capacity or output to be allocated for
each purpose, and the duration of the allocation action (i.e.,
anticipated start and end dates);
(g) An evaluation of the impact of the proposed allocation action on
the civilian market; and
(h) Proposed actions, if any, to mitigate disruptions to civilian
market operations.
Sec. 217.52 Controlling the general distribution of a material
in the civilian market.
No allocation action by the Department of Energy may be used to
control the general distribution of a material in the civilian market,
unless the Secretary of the Department of Energy has:
(a) Made a written finding that:
(1) Such material is a scarce and critical material essential to the
national defense, and
(2) The requirements of the national defense for such material
cannot otherwise be met without creating a significant dislocation of
the normal distribution of such material in the civilian market to such
a degree as to create appreciable hardship;
(b) Submitted the finding for the President's approval through the
Assistant to the President for National Security Affairs; and
(c) The President has approved the finding.
Sec. 217.53 Types of allocation orders.
There are three types of allocation orders available for
communicating allocation actions. These are:
(a) Set-aside: an official action that requires a person to reserve
materials, services, or facilities capacity in anticipation of the
receipt of rated orders;
(b) Directive: an official action that requires a person to take or
refrain
[[Page 86]]
from taking certain actions in accordance with its provisions. For
example, a directive can require a person to: stop or reduce production
of an item; prohibit the use of selected materials, services, or
facilities; or divert the use of materials, services, or facilities from
one purpose to another; and
(c) Allotment: an official action that specifies the maximum
quantity of a material, service, or facility authorized for a specific
use.
Sec. 217.54 Elements of an allocation order.
Each allocation order must include:
(a) A detailed description of the required allocation action(s);
(b) Specific start and end calendar dates for each required
allocation action;
(c) The written signature on a manually placed order, or the digital
signature or name on an electronically placed order, of the Secretary of
Energy. The signature or use of the name certifies that the order is
authorized under this part and that the requirements of this part are
being followed;
(d) A statement that reads in substance: ``This is an allocation
order certified for national defense use. [Insert the legal name of the
person receiving the order] is required to comply with this order, in
accordance with the provisions of the Energy Priorities and Allocations
System regulation (10 CFR part 217), which is part of the Federal
Priorities and Allocations System''; and
(e) A current copy of the Energy Priorities and Allocations System
regulation (10 CFR part 217).
Sec. 217.55 Mandatory acceptance of an allocation order.
(a) Except as otherwise specified in this section, a person shall
accept and comply with every allocation order received.
(b) A person shall not discriminate against an allocation order in
any manner such as by charging higher prices for materials, services, or
facilities covered by the order or by imposing terms and conditions for
contracts and orders involving allocated materials, services, or
facilities that differ from the person's terms and conditions for
contracts and orders for the materials, services, or facilities prior to
receiving the allocation order.
(c) If a person is unable to comply fully with the required
action(s) specified in an allocation order, the person must notify the
Department of Energy immediately, explain the extent to which compliance
is possible, and give the reasons why full compliance is not possible.
If notification is given verbally, written or electronic confirmation
must be provided within five (5) working days. Such notification does
not release the person from complying with the order to the fullest
extent possible, until the person is notified by the Department of
Energy that the order has been changed or cancelled.
Sec. 217.56 Changes or cancellations of an allocation order.
An allocation order may be changed or canceled by an official action
of the Department of Energy.
Subpart F_Official Actions
Sec. 217.60 General provisions.
(a) The Department of Energy may take specific official actions to
implement the provisions of this part.
(b) These official actions include Rating Authorizations,
Directives, and Memoranda of Understanding.
Sec. 217.61 Rating Authorizations.
(a) A Rating Authorization is an official action granting specific
priority rating authority that:
(1) Permits a person to place a priority rating on an order for an
item or service not normally ratable under this part; or
(2) Authorizes a person to modify a priority rating on a specific
order or series of contracts or orders.
(b) To request priority rating authority, see Sec. 217.41.
Sec. 217.62 Directives.
(a) A Directive is an official action that requires a person to take
or refrain from taking certain actions in accordance with its
provisions.
(b) A person must comply with each Directive issued. However, a
person may not use or extend a Directive to
[[Page 87]]
obtain any items from a supplier, unless expressly authorized to do so
in the Directive.
(c) A Priorities Directive takes precedence over all DX-rated
orders, DO-rated orders, and unrated orders previously or subsequently
received, unless a contrary instruction appears in the Directive.
(d) An Allocations Directive takes precedence over all Priorities
Directives, DX-rated orders, DO-rated orders, and unrated orders
previously or subsequently received, unless a contrary instruction
appears in the Directive.
Sec. 217.63 Letters and Memoranda of Understanding.
(a) A Letter or Memorandum of Understanding is an official action
that may be issued in resolving special priorities assistance cases to
reflect an agreement reached by all parties (the Department of Energy,
the Department of Commerce (if applicable), a Delegate Agency (if
applicable), the supplier, and the customer).
(b) A Letter or Memorandum of Understanding is not used to alter
scheduling between rated orders, to authorize the use of priority
ratings, to impose restrictions under this part. Rather, Letters or
Memoranda of Understanding are used to confirm production or shipping
schedules that do not require modifications to other rated orders.
Subpart G_Compliance
Sec. 217.70 General provisions.
(a) The Department of Energy may take specific official actions for
any reason necessary or appropriate to the enforcement or the
administration of the Defense Production Act and other applicable
statutes, this part, or an official action. Such actions include
Administrative Subpoenas, Demands for Information, and Inspection
Authorizations.
(b) Any person who places or receives a rated order or an allocation
order must comply with the provisions of this part.
(c) Willful violation of the provisions of title I or section 705 of
the Defense Production Act and other applicable statutes, this part, or
an official action of the Department of Energy is a criminal act,
punishable as provided in the Defense Production Act and other
applicable statutes, and as set forth in Sec. 217.74 of this part.
Sec. 217.71 Audits and investigations.
(a) Audits and investigations are official examinations of books,
records, documents, other writings and information to ensure that the
provisions of the Defense Production Act and other applicable statutes,
this part, and official actions have been properly followed. An audit or
investigation may also include interviews and a systems evaluation to
detect problems or failures in the implementation of this part.
(b) When undertaking an audit or investigation, the Department of
Energy shall:
(1) Define the scope and purpose in the official action given to the
person under investigation, and
(2) Have ascertained that the information sought or other adequate
and authoritative data are not available from any Federal or other
responsible agency.
(c) In administering this part, the Department of Energy may issue
the following documents that constitute official actions:
(1) Administrative Subpoenas. An Administrative Subpoena requires a
person to appear as a witness before an official designated by the
Department of Energy to testify under oath on matters of which that
person has knowledge relating to the enforcement or the administration
of the Defense Production Act and other applicable statutes, this part,
or official actions. An Administrative Subpoena may also require the
production of books, papers, records, documents and physical objects or
property.
(2) Demands for Information. A Demand for Information requires a
person to furnish to a duly authorized representative of the Department
of Energy any information necessary or appropriate to the enforcement or
the administration of the Defense Production Act and other applicable
statutes, this part, or official actions.
[[Page 88]]
(3) Inspection Authorizations. An Inspection Authorization requires
a person to permit a duly authorized representative of the Department of
Energy to interview the person's employees or agents, to inspect books,
records, documents, other writings, and information, including
electronically-stored information, in the person's possession or control
at the place where that person usually keeps them or otherwise, and to
inspect a person's property when such interviews and inspections are
necessary or appropriate to the enforcement or the administration of the
Defense Production Act and related statutes, this part, or official
actions.
(d) The production of books, records, documents, other writings, and
information will not be required at any place other than where they are
usually kept if, prior to the return date specified in the
Administrative Subpoena or Demand for Information, a duly authorized
official of the Department of Energy is furnished with copies of such
material that are certified under oath to be true copies. As an
alternative, a person may enter into a stipulation with a duly
authorized official of Department of Energy as to the content of the
material.
(e) An Administrative Subpoena, Demand for Information, or
Inspection Authorization, shall include the name, title, or official
position of the person to be served, the evidence sought to be adduced,
and its general relevance to the scope and purpose of the audit,
investigation, or other inquiry. If employees or agents are to be
interviewed; if books, records, documents, other writings, or
information are to be produced; or if property is to be inspected; the
Administrative Subpoena, Demand for Information, or Inspection
Authorization will describe them with particularity.
(f) Service of documents shall be made in the following manner:
(1) Service of a Demand for Information or Inspection Authorization
shall be made personally, or by Certified Mail-Return Receipt Requested
at the person's last known address. Service of an Administrative
Subpoena shall be made personally. Personal service may also be made by
leaving a copy of the document with someone at least 18 years old at the
person's last known dwelling or place of business.
(2) Service upon other than an individual may be made by serving a
partner, corporate officer, or a managing or general agent authorized by
appointment or by law to accept service of process. If an agent is
served, a copy of the document shall be mailed to the person named in
the document.
(3) Any individual 18 years of age or over may serve an
Administrative Subpoena, Demand for Information, or Inspection
Authorization. When personal service is made, the individual making the
service shall prepare an affidavit as to the manner in which service was
made and the identity of the person served, and return the affidavit,
and in the case of subpoenas, the original document, to the issuing
officer. In case of failure to make service, the reasons for the failure
shall be stated on the original document.
Sec. 217.72 Compulsory process.
(a) If a person refuses to permit a duly authorized representative
of the Department of Energy to have access to any premises or source of
information necessary to the administration or the enforcement of the
Defense Production Act and other applicable statutes, this part, or
official actions, the Department of Energy representative may seek
compulsory process. Compulsory process means the institution of
appropriate legal action, including ex parte application for an
inspection warrant or its equivalent, in any forum of appropriate
jurisdiction.
(b) Compulsory process may be sought in advance of an audit,
investigation, or other inquiry, if, in the judgment of the Deputy
Assistant Secretary of the Department of Energy overseeing the Defense
Production Act program, as listed in Sec. 217.93, there is reason to
believe that a person will refuse to permit an audit, investigation, or
other inquiry, or that other circumstances exist which make such process
desirable or necessary.
[76 FR 33619, June 9, 2011, as amended at 85 FR 31670, May 27, 2020]
[[Page 89]]
Sec. 217.73 Notification of failure to comply.
(a) At the conclusion of an audit, investigation, or other inquiry,
or at any other time, the Department of Energy may inform the person in
writing where compliance with the requirements of the Defense Production
Act and other applicable statutes, this part, or an official action were
not met.
(b) In cases where the Department of Energy determines that failure
to comply with the provisions of the Defense Production Act and other
applicable statutes, this part, or an official action was inadvertent,
the person may be informed in writing of the particulars involved and
the corrective action to be taken. Failure to take corrective action may
then be construed as a willful violation of the Defense Production Act
and other applicable statutes, this part, or an official action.
Sec. 217.74 Violations, penalties, and remedies.
(a) Willful violation of the provisions of title I or sections 705
or 707 of the Defense Production Act, the priorities provisions of the
Selective Service Act and related statutes (when applicable), this part,
or an official action, is a crime and upon conviction, a person may be
punished by fine or imprisonment, or both. The maximum penalties
provided by the Defense Production Act are a $10,000 fine, or one year
in prison, or both. The maximum penalties provided by the Selective
Service Act and related statutes are a $50,000 fine, or three years in
prison, or both.
(b) The Government may also seek an injunction from a court of
appropriate jurisdiction to prohibit the continuance of any violation
of, or to enforce compliance with, the Defense Production Act, this
part, or an official action.
(c) In order to secure the effective enforcement of the Defense
Production Act and other applicable statutes, this part, and official
actions, the following are prohibited:
(1) No person may solicit, influence or permit another person to
perform any act prohibited by, or to omit any act required by, the
Defense Production Act and other applicable statutes, this part, or an
official action.
(2) No person may conspire or act in concert with any other person
to perform any act prohibited by, or to omit any act required by, the
Defense Production Act and other applicable statutes, this part, or an
official action.
(3) No person shall deliver any item if the person knows or has
reason to believe that the item will be accepted, redelivered, held, or
used in violation of the Defense Production Act and other applicable
statutes, this part, or an official action. In such instances, the
person must immediately notify the Department of Energy that, in
accordance with this provision, delivery has not been made.
Sec. 217.75 Compliance conflicts.
If compliance with any provision of the Defense Production Act and
other applicable statutes, this part, or an official action would
prevent a person from filling a rated order or from complying with
another provision of the Defense Production Act and other applicable
statutes, this part, or an official action, the person must immediately
notify the Department of Energy for resolution of the conflict.
Subpart H_Adjustments, Exceptions, and Appeals
Sec. 217.80 Adjustments or exceptions.
(a) A person may submit a request to the Deputy Assistant Secretary
of the Department of Energy overseeing the Defense Production Act
program, as listed in Sec. 217.93, for an adjustment or exception on
the ground that:
(1) A provision of this part or an official action results in an
undue or exceptional hardship on that person not suffered generally by
others in similar situations and circumstances; or
(2) The consequences of following a provision of this part or an
official action is contrary to the intent of the Defense Production Act
and other applicable statutes, or this part.
(b) Each request for adjustment or exception must be in writing and
contain a complete statement of all the facts and circumstances related
to the provision of this part or official action from which adjustment
is sought and a
[[Page 90]]
full and precise statement of the reasons why relief should be provided.
(c) The submission of a request for adjustment or exception shall
not relieve any person from the obligation of complying with the
provision of this part or official action in question while the request
is being considered unless such interim relief is granted in writing by
the Deputy Assistant Secretary of the Department of Energy overseeing
the Defense Production Act program, as listed in Sec. 217.93.
(d) A decision of the Deputy Assistant Secretary of the Department
of Energy overseeing the Defense Production Act program, as listed in
Sec. 217.93, under this section may be appealed to the Assistant
Secretary, Office of Electricity (For information on the appeal
procedure, see Sec. 217.81.)
[76 FR 33619, June 9, 2011, as amended at 85 FR 31670, May 27, 2020]
Sec. 217.81 Appeals.
(a) Any person who has had a request for adjustment or exception
denied by the Deputy Assistant Secretary of the Department of Energy
overseeing the Defense Production Act program, as listed in section
217.93, under Sec. 217.80, may appeal to the Assistant Secretary,
Office of Electricity who shall review and reconsider the denial.
(b)(1) Except as provided in this paragraph (b)(2), an appeal must
be received by the Assistant Secretary, Office of Electricity no later
than 45 days after receipt of a written notice of denial from the Deputy
Assistant Secretary of the Department of Energy overseeing the Defense
Production Act program, as listed in Sec. 217.93. After this 45-day
period, an appeal may be accepted at the discretion of the Assistant
Secretary, Office of Electricity for good cause shown.
(2) For requests for adjustment or exception involving rated orders
placed for the purpose of emergency preparedness (see 217.14(d)), an
appeal must be received by the Assistant Secretary, Office of
Electricity, no later than 15 days after receipt of a written notice of
denial from the Deputy Assistant Secretary of the Department of Energy
overseeing the Defense Production Act program, as listed in Sec.
217.93. Contract performance under the order shall not be stayed pending
resolution of the appeal.
(c) Each appeal must be in writing and contain a complete statement
of all the facts and circumstances related to the action appealed from
and a full and precise statement of the reasons the decision should be
modified or reversed.
(d) In addition to the written materials submitted in support of an
appeal, an appellant may request, in writing, an opportunity for an
informal hearing. This request may be granted or denied at the
discretion of the Assistant Secretary, Office of Electricity.
(e) When a hearing is granted, the Assistant Secretary, Office of
Electricity may designate an employee to conduct the hearing and to
prepare a report. The hearing officer shall determine all procedural
questions and impose such time or other limitations deemed reasonable.
In the event that the hearing officer decides that a printed transcript
is necessary, all expenses shall be borne by the appellant.
(f) When determining an appeal, the Assistant Secretary, Office of
Electricity may consider all information submitted during the appeal as
well as any recommendations, reports, or other relevant information and
documents available to the Department of Energy or consult with any
other persons or groups.
(g) The submission of an appeal under this section shall not relieve
any person from the obligation of complying with the provision of this
part or official action in question while the appeal is being considered
unless such relief is granted in writing by the Assistant Secretary,
Office of Electricity.
(h) The decision of the Assistant Secretary, Office of Electricity
shall be made within five (5) days after receipt of the appeal, or
within one (1) day for appeals pertaining to emergency preparedness and
shall be the final administrative action. It shall be issued to the
appellant in writing with a statement of the reasons for the decision.
[76 FR 33619, June 9, 2011, as amended at 85 FR 31670, May 27, 2020]
[[Page 91]]
Subpart I_Miscellaneous Provisions
Sec. 217.90 Protection against claims.
A person shall not be held liable for damages or penalties for any
act or failure to act resulting directly or indirectly from compliance
with any provision of this part, or an official action, notwithstanding
that such provision or action shall subsequently be declared invalid by
judicial or other competent authority.
Sec. 217.91 Records and reports.
(a) Persons are required to make and preserve for at least three
years, accurate and complete records of any transaction covered by this
part or an official action.
(b) Records must be maintained in sufficient detail to permit the
determination, upon examination, of whether each transaction complies
with the provisions of this part or any official action. However, this
part does not specify any particular method or system to be used.
(c) Records required to be maintained by this part must be made
available for examination on demand by duly authorized representatives
of the Department of Energy as provided in Sec. 217.71.
(d) In addition, persons must develop, maintain, and submit any
other records and reports to the Department of Energy that may be
required for the administration of the Defense Production Act and other
applicable statutes, and this part.
(e) Section 705(d) of the Defense Production Act, as implemented by
E.O. 12919, provides that information obtained under this section which
the Secretary deems confidential, or with reference to which a request
for confidential treatment is made by the person furnishing such
information, shall not be published or disclosed unless the Secretary
determines that the withholding of this information is contrary to the
interest of the national defense. Information required to be submitted
to the Department of Energy in connection with the enforcement or
administration of the Defense Production Act, this part, or an official
action, is deemed to be confidential under section 705(d) of the Defense
Production Act and shall be handled in accordance with applicable
Federal law.
Sec. 217.92 Applicability of this part and official actions.
(a) This part and all official actions, unless specifically stated
otherwise, apply to transactions in any state, territory, or possession
of the United States and the District of Columbia.
(b) This part and all official actions apply not only to deliveries
to other persons but also include deliveries to affiliates and
subsidiaries of a person and deliveries from one branch, division, or
section of a single entity to another branch, division, or section under
common ownership or control.
(c) This part and its schedules shall not be construed to affect any
administrative actions taken by the Department of Energy, or any
outstanding contracts or orders placed pursuant to any of the
regulations, orders, schedules or delegations of authority previously
issued by the Department of Energy pursuant to authority granted to the
President in the Defense Production Act. Such actions, contracts, or
orders shall continue in full force and effect under this part unless
modified or terminated by proper authority.
Sec. 217.93 Communications.
All communications concerning this part, including requests for
copies of the regulation and explanatory information, requests for
guidance or clarification, and requests for adjustment or exception
shall be addressed to the Deputy Assistant Secretary of the Department
of Energy overseeing the Defense Production Act program, U.S. Department
of Energy, 1000 Independence Ave. SW, Washington, DC 20585; (202) 586-
1411 ([email protected]).
[85 FR 31670, May 27, 2020]
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Sec. Appendix I to Part 217--Sample Form DOE F 544 (05-11)
[GRAPHIC] [TIFF OMITTED] TR09JN11.049
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PART 218_STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION--Table of Contents
Subpart A_General Provisions
Sec.
218.1 Purpose and scope.
218.2 Activation/Deactivation.
218.3 Definitions.
Subpart B_Supply Orders
218.10 Rule.
218.11 Supply orders.
218.12 Pricing.
Subpart C [Reserved]
Subpart D_Procedures
218.30 Purpose and scope.
218.31 Incorporated procedures.
218.32 Review.
218.33 Stay.
218.34 Addresses.
Subpart E_Investigations, Violations, Sanctions and Judicial Actions
218.40 Investigations.
218.41 Violations.
218.42 Sanctions.
218.43 Injunctions.
Authority: 15 U.S.C. 751 et seq.; 15 U.S.C. 787 et seq.; 42 U.S.C.
6201 et seq.; 42 U.S.C. 7101 et seq.; E.O. 11790, 39 FR 23185; E.O.
12009, 42 FR 46267; 28 U.S.C. 2461 note.
Source: 44 FR 27972, May 14, 1979, unless otherwise noted.
Subpart A_General Provisions
Sec. 218.1 Purpose and scope.
(a) This part implements section 251 of the Energy Policy and
Conservation Act (Pub. L. 94-163) (42 U.S.C. 6271), as amended, which
authorizes the President to take such action as he determines to be
necessary for performance of the obligations of the United States under
chapters III and IV of the Agreement on an International Energy Program
(TIAS 8278), insofar as such obligations relate to the mandatory
international allocation of oil by International Energy Program
participating countries.
(b) Applicability. This part applies to any firm engaged in
producing, transporting, refining, distributing or storing oil which is
subject to the jurisdiction of the United States.
Sec. 218.2 Activation/Deactivation.
(a) This rule shall take effect providing:
(1) The International Energy Program has been activated; and,
(2) The President has transmitted this rule to Congress, has found
putting such rule into effect is required in order to fulfill
obligations of the United States under the International Energy Program
and has transmitted such a finding to the Congress together with a
statement of the effective date and manner for exercise of such rule.
(b) This rule shall revert to standby status no later than 60 days
after the deactivation of the emergency allocation system activated to
implement the International Energy Program.
Sec. 218.3 Definitions.
DOE means the Department of Energy established by the Department of
Energy Organization Act (Pub. L. 95-91), and includes the Secretary of
Energy or his delegate.
EPCA means the Energy Policy and Conservation Act (Pub. L. 94-163),
as amended.
Firm means any association, company, corporation, estate,
individual, joint-venture, partnership, or sole proprietorship or any
other entity however organized including charitable, educational, or
other eleemosynary institutions, and the Federal Government including
corporations, departments, Federal agencies, and other
instrumentalities, and State and local governments. The ERA may, in
regulations and forms issued in this part, treat as a firm: (a) A parent
and the consolidated and unconsolidated entities (if any) which it
directly or indirectly controls, (b) a parent and its consolidated
entities, (c) an unconsolidated entity, or (d) any part of a firm.
IEA means the International Energy Agency established to implement
the IEP.
IEP means the International Energy Program established pursuant to
the Agreement on an International Energy Program signed at Paris,
France, on November 18, 1974, including (a) the Annex entitled
``Emergency Reserves'', (b) any amendment to such Agreement that
includes another nation as a Party to such Agreement, and (c) any
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technical or clerical amendment to such Agreement.
International energy supply emergency means any period (a) beginning
on any date that the President determines allocation of petroleum
products to nations participating in the IEP is required by chapters III
and IV of the IEP and (b) ending on a date on which he determines such
allocation is no longer required.
Oil means crude oil, residual fuel oil, unfinished oil, refined
petroleum product and natural gas liquids, which is owned or controlled
by a firm, including any petroleum product destined, directly or
indirectly, for import into the United States or any foreign country, or
produced in the United States but excludes any oil stored in or owned
and controlled by the United States Government in connection with the
Strategic Petroleum Reserve authorized in section 151, et seq., of the
Energy Policy and Conservation Act (Pub. L. 94-163).
Person means any individual, firm, estate, trust, sole
proprietorship, partnership, association, company, joint-venture,
corporation, governmental unit or instrumentality thereof, or a
charitable, educational or other institution, and includes any officer,
director, owner or duly authorized representative thereof.
Supply order means a written directive or a verbal communication of
a written directive, if promptly confirmed in writing, issued by the DOE
pursuant to subpart B of this part.
United States when used in the geographic sense means the several
States, the District of Columbia, Puerto Rico, and the territories and
possessions of the United States, and the outer continental shelf as
defined in 43 U.S.C. 1331.
Subpart B_Supply Orders
Sec. 218.10 Rule.
(a) Upon the determination by the President that an international
energy supply emergency exists, firms engaged in producing,
transporting, refining, distributing, or storing oil shall take such
actions as are determined by the DOE to be necessary for implementation
of the obligations of the United States under chapters III and IV of the
IEP that relate to the mandatory international allocation of oil by IEP
participating countries.
(b) Any actions required in accordance with paragraph (a) of this
section shall be stated in supply orders issued by DOE.
(c) No firm to which a supply order is issued shall be required to
comply with such order unless the firm to which the oil is to be
provided in accordance with such supply order has agreed to a procedure
for the resolution of any dispute related to the terms and conditions of
the sale undertaken pursuant to the supply order. The means for
resolving any such disputes may include any procedures that are mutually
acceptable to the parties, including arbitration before the IEA if the
IEA has established arbitration procedures, arbitration or adjudication
before an appropriate body, or any other similar procedure.
Sec. 218.11 Supply orders.
(a) A supply order shall require that the firm to which it is issued
take actions specified therein relating to supplying the stated volume
of oil to a specified recipient including, but not limited to,
distributing, producing, storing, transporting or refining oil. A supply
order shall include a concise statement of the pertinent facts and of
the legal basis on which it is issued, and shall describe the action to
be taken.
(b) The DOE shall serve a copy of the supply order on the firm
directed to act as stated therein.
(c) The DOE may modify or rescind a supply order on its own motion
or pursuant to an application filed in accordance with Sec. 218.32 of
this part.
(d) A supply order shall be effective in accordance with its terms,
and when served upon a firm directed to act thereunder, except that a
supply order shall not remain in effect (1) upon reversion of this rule
to standby status or (2) twelve months after the rule has been
transmitted to Congress (whichever occurs first) or (3) to the extent
that DOE or a court of competent jurisdiction directs that it be stayed,
modified, or rescinded.
(e) Any firm issued a supply order pursuant to this subpart may seek
modification or rescission of the supply
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order in accordance with procedures provided in Sec. 218.32 of this
part.
Sec. 218.12 Pricing.
The price for oil subject to a supply order issued pursuant to this
subpart shall be based on the price conditions prevailing for comparable
commercial transactions at the time the supply order is served.
Subpart C [Reserved]