ed 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.

of

(c) If DOE determines that a program or project maximizes domestic energy supplies and finds that supplies of materials and equipment are critical and essential to maintain or further the exploration, production, refining, transportation or conservation energy supplies or for the construction and maintenance of energy facilities, such determination and finding will be communicated to the Department of Commerce. If not, the applicant will be so informed. If the determination and finding described above are made, the Department of Commerce, pursuant to DPA section 101(c), Executive Order 11912 and DMO No. 13, will find whether or not (1) the supplies of materials and equipment in question are scarce and (2) maintenance or furtherance of exploration, production, refining, transportation, or conservation of energy supplies or the construction and maintenance of energy facilities cannot be reasonably accomplished without exercising the authority specified in section 101(c). If these additional two findings are made, the Department of Commerce will notify DOE, and DOE will inform the applicant that it has been granted the right to use priority ratings under the Defense Materials System ("DMS") and the Defense Priorities System ("DPS") established by the Department of Commerce.

(e) "BDC" means the Bureau of Domestic Commerce within the Domestic and International Business Administration of the United States Department of Commerce.

(f) "DOE" means the Department of Energy, acting through the Secretary or the delegate of the Secretary.

(g) "Eligible energy program or project" means a designated activity which maximizes domestic energy supplies by furthering the domestic exploration, production, refining, transportation or conservation of energy supplies or construction and maintenance of energy facilities within the meaning of DPA section 101(c), as determined by DOE.

(h) "FPA" means the Federal Preparedness Agency of the General Services Administration.

§ 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 or equipment identified in the application are critical and essential for a purpose identified in section 101(c). The application should be sent to: Department of Energy, Office of Financial Planning and Materials Allocation, Office of Resource Applications, Room 3516, Federal Building, 12th and Pennsylvania Avenue NW., Washington, D.C. 20461. 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 or equipment in question.

(4) A statement explaining why the materials or equipment 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 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 or equipment).

(6) A detailed description of the sources of supply, including: Name of the regular supplying company or companies, other companies capable of supplying the materials and equipment, location of supplying plants or of plants capable supplying the needed materials and equipment, possible suppliers for identical or substitutable materials and equipment and possible foreign sources of supply.

(7) A detailed description of the delivery stituation, 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 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 in the usual course of business.

(10) Any known conflicts with rated or authorized controlled material orders already issued pursuant to the DPA for supplies of the described materials and equipment.

(11) Quarterly estimates of requirements for controlled materials, if applicable, by shapes and forms as prescribed by DMS Regulation 1.

(b) DOE, in consultation with the BDC, 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).

§ 216.4 Evaluation by DOE of applications.

(a) Based on the information provided by the applicant and other available information, DOE will assess the application and (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 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 are allegedly required; and

(5) Established national energy policies.

(c) In findings whether the supplies of materials or equipment 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 or equipment; and

(2) Impact of the nonavailability of the specific supplies of materials and equipment on the furtherance or timely completion of the approved energy program or project.

(d) Increased costs which may be associated with obtaining materials or equipment without assistance shall not be considered a valid reason for finding the materials and equipment 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.

§ 216.5 Notification of findings.

(a) DOE will notify the BDC if it finds that supplies of materials and equipment, for which an applicant requested assistance, are critical and essential to an eligible energy program or project, and in such cases will forward to the BDC 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 BDC and the affected applicant(s) and afford such applicant(s) an opportunity to show cause why such findings should not be withdrawn.

(b) If BDC notifies DOE that BDC has found that supplies of materials and equipment, 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 and/or authorized controlled material orders for specific supplies of materials and equipment pursuant to the provisions of DMS Regulation 1 and DPS Regula

tion 1, as promulgated by the Department of Commerce.

§ 216.6

Petition for reconsideration.

If DOE, after evaluating an application in accordance with § 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 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. Such a petition is deemed accepted when received by DOE at the address stated in § 216.9. 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.

§ 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 BDC and other claimant agencies affected by such conflict in an attempt to reschedule deliveries or otherwise accommodate such competing demands. If acceptable solutions cannot be agreed upon by the claimant agencies the FPA will resolve such conflicts.

AUTHORITY: 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; De

partment 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.

SOURCE: 44 FR 27972, May 14, 1979, unless otherwise noted.

Subpart A-General Provisions

§ 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.

"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.

Paris,

"IEP" means the International Energy Program established pursuant to the Agreement on an International Energy Program signed at 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 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, jointventure, 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.

(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 mutally acceptable to the parties, including arbitration before the IEA if the IEA has established arbitration procedures, arbitration or adjudication before an appro