(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 § 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.

§ 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.

§ 205.191 Notice of probable violation; commencement of enforcement proceedings.

(a) The ERA may begin a proceeding under this subpart by issuing a Notice of Probable Violation if the ERA has reason to believe that a violation has occurred, is continuing or is about to occur.

(b) Within 30 days after the service of a Notice of Probable Violation, the person upon whom the Notice is

served may file a reply with the ERA office that issued the Notice of Probable Violation at the address provided in § 205.12. The ERA may extend the 30-day period for good cause shown.

(c) The reply shall be in writing and signed by the person filing it. The reply shall contain a statement of all relevant facts pertaining to the act or transaction that is the subject of the Notice of Probable Violation. The reply shall include a statement of the legal, business and other reasons for the act or transaction; a description of the act or transaction; and a discussion of the pertinent provisions and relevant facts reflected in any documents submitted with the reply. Copies of all relevant contracts, agreements, leases, instruments, and other documents shall be submitted with the reply. When the Notice or Probable Violation pertains to only one step of a larger integrated transaction, the facts regarding the entire transaction shall be submitted. In further proceedings regarding this act or transaction, the Office of Hearings and Appeals will decline to consider an issue that was not raised in the reply to the Notice of Probable Violation unless good cause is shown for the failure to raise the issue.

(d) The reply shall include a discussion of the relevant authorities which support the position asserted, including rulings, regulations, interpretations, and previous decisions issued by DOE or its predecessor agencies.

(e) The reply should indicate whether the person requests an informal conference regarding the notice. A request for a conference must be in writing.

(f) If a person has not filed a reply with the ERA within the 30-day or other period authorized for reply, the person shall be deemed to have admitted the accuracy of the factual allegations and legal conclusions stated in the Notice of Probable Violation, and the ERA may proceed to issue a Proposed Remedial Order in accordance with § 205.192.

(g) If the ERA finds, during or after the 30-day or other period authorized for reply, that no violation has occurred, is continuing, or is about to occur, or that for any reason the issu

ance of a Proposed Remedial Order would not be appropriate, it shall rescind the Notice of Probable Violation and inform the person to whom the Notice was issued of the rescission.

§ 205.192 Proposed remedial order.

(a) If the ERA finds, after the 30day 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 § 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 accompaned 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.

§ 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 § 205.192(d) and any supplemental information that may be made available under § 205.193A.

(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.

§ 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.

§ 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. § 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;

(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.

§ 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 § 205.9 and shall be filed with the Office of Hearings and Appeals in accordance with § 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 § 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 certifi

cate 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 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.

§ 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 errone

ous, 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 inIclude 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.

§ 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