The Code of Federal Regulations of the United States of America

that section, the DOE shall consider the principles set forth in the Decisions and Orders issued with respect to applications for exception from other generally applicable DOE regulations to the extent that such precedents are relevant and consistent with Proclamation No. 3279, as amended, and shall give particular weight to the following factors:

1. Whether payment of the fee (or other action required under Part 213) would lead to a result unintended by Proclamation No. 3279, as amended, or would impede important national energy policy objectives, including the furtherance of competition at any level of distribution in the petroleum industry and the encouragement of market entry.

2. Whether payment of the fee (or other action required under Part 213) would so affect the operations of the firm applying for exception relief as to cause a significant reduction in service or threaten interruptions in service to present customers.

3. Whether payment of the fee would adversely affect the firm applying for exception relief in a manner which threatens its financial viability in terms of its profitability, liquidity, or the stability of its operations, would place the firm at a significant competitive disadvantage in a market in which the firm operates, or would otherwise significantly reduce competition.

4. Whether the firm applying for exception relief is likely to incur a significant deterioration in its current operating posture in contrast with historic levels as a result of its inability due to competitive conditions to increase its prices to reflect import license fees.

5. Whether the firm makes a convincing showing that adequate domestic supplies of suitable product at competitive prices are not available.

SPECIAL GUIDELINE I

For the allocation period May 1, 1977 through April 30, 1978, any person desiring to import residual fuel oil into District I shall be deemed to be experiencing an exceptional hardship to the extent that his available fee-exempt licenses, if any, are less than his contractual obligations or other projected needs for that period. Any person SO deemed may receive additional feeexempt licenses in the amount required to meet such obligations or needs by certifying his additional requirements to the Director of Oil Imports. The Director shall issue a license for the amount certified, except where he determines that issuance thereof would not be in accordance with the objectives of Proclamation No. 3279, as amended.

Any license issued pursuant to this Special Guideline shall be subject to the limitations contained in § 213.15(e). Licenses which

(a) An exemption may be effected only by amendment to the regulations. Although an application for an exemption is a request for a rulemaking, the application is not subject to the procedures of subpart L. If a rulemaking proceeding is convened, however, it shall be held in accordance with subpart L.

(b) An application for an exemption shall be submitted separate and apart from any other application, appeal, petition or other request submitted in accordance with this part. If an application for exemption is included with any other application, appeal, petition, or other request, the application for exemption will not be processed, nor will it be severed for separate consideration.

§ 205.73 Where to file.

An application for exemption shall be filed with the Office of Private Grievances and Redress at the address provided in § 205.12.

§ 205.74 Contents.

The application shall contain a full and complete statement of all relevant facts pertaining to the circumstances, act or transaction that is the subject of the application and to the DOE action sought. The application shall identify the part or parts, or subparts thereof, of this chapter from which the exemption is sought; describe the business or other reason that would justify such exemption; identify the persons or classes of persons and acts or transactions that would be affected by such exemption and describe any adverse impact; describe the benefit to the person making the application, or others, that would result if the exemption were effected; and explain the reasons why the action sought by the application cannot be accomplished by any other proceeding provided in this part. Upon request, the applicant shall submit copies of relevant contracts, agreements, leases, instruments, and other documents that are representative of those that would be affected by the granting of the requested exemption.

§ 205.75 DOE evaluation.

(a) Processing. All applications for exemption shall be evaluated by DOE to determine if the institution of rulemaking is warranted and if the DOE action sought by the application could more appropriately be considered in any other proceeding provided by this part.

(b) Criteria. (1) Rulemaking proceedings for the purposes of considering an application for exemption will be instituted only if the DOE in its discretion determines that such a proceeding would be appropriate. Among the factors that the DOE will evaluate in making a determination with respect to a rulemaking are

(i) The impact that granting the exemption would have on the regulatory scheme and objectives;

(ii) The number of persons who would be exempted; and

(iii) The economic justification for such exemption.

(2) The DOE may summarily deny an application for exemption if—

(i) The exemption sought is not from a part or parts, or a subpart thereof, of this chapter;

(ii) The granting of an exemption to the person making the application would not have sufficient national impact, economic or otherwise, to warrant rulemaking proceedings for the purpose of considering an amendment to the regulation;

(iii) It is determined that the statutory criteria cannot be met; or

(iv) It is determined that another proceeding provided by this part is more appropriate.

(a) Upon consideration of the application and other relevant information obtained during the proceeding, the DOE shall issue an appropriate order. If the application is not denied, the order shall provide for publication of a notice of proposed rulemaking regarding the application in the FEDERAL REGISTER.

(b) The order shall include a written statement setting forth the relevant facts and legal basis for the decision. The order denying the application shall state that any person aggrieved thereby may file an appeal with Office of Exceptions and Appeals in accordance with subpart H of this part.

(c) In addition to the procedures provided in § 202.2 of this chapter, upon the written request of any person, which request is filed after any grant or denial of a request for an exemption under part 209, DOE shall furnish such person, within thirty (30) days after the date on which such request is filed, with a copy of the decision and order. All such requests shall be directed to the Director of Public Affairs, Federal Energy Office, Washington, DC 20461, and shall be clearly marked on the envelope: "Attention: Information Access Officer." The fees for providing such decision and order shall be determined in accordance with § 202.8 of this chapter.

[39 FR 35489, Oct. 1, 1974, as amended at 41 FR 36647, Aug. 31, 1976]

§ 205.77 Timeliness.

(a) If the DOE fails to take action on any application filed under this subpart within 90 days of filing, the applicant may treat the application as having been denied in all respects and may appeal therefrom as provided in this subpart.

§ 205.78 Appeal.

Any person aggrieved by an order issued by the DOE under this subpart that denies an application for exemption may file an appeal with the Office of Exceptions and Appeals in accordance with subpart H of this part. The appeal must be filed within 30 days of service of the order from which the appeal is taken. There has not been an exhaustion of administrative remedies until an appeal has been filed pursuant to subpart H and the appellate proceeding is completed by the issuance of an order granting or denying the appeal.

Subpart F-Interpretation

§ 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]

(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 § 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 § 205.9(f) shall apply.

§ 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 § 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]

(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 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 rele

vant 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.

§ 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.

(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.

(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 Idate 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.

§ 205.86 Appeal.

There is no administrative appeal of an interpretation.

Subpart G-[Reserved]

Subpart H-Appeal

§ 205.100 Purpose and scope.

(a)(1) This subpart establishes the procedures for the filing of an administrative appeal of DOE actions taken under subparts B, C, D, E, G, O, or T of this part, subpart I of Part 212, or actions of the Director of Oil Imports specified in paragraph (a)(2) of this section, and the consideration of such appeal by the DOE. Appeals of orders issued by State Offices shall be in accordance with subpart R.

(2) Actions of the Director of Oil Imports subject to appeal under this subpart are:

(i) Actions taken erroneously on applications for allocations of imports under part 213 of this chapter; and

(ii) Denial of refunds pursuant to § 213.35(d) of license fees, whether in whole or in part, theretofore paid by a person.

(b) A person who has appeared before the DOE in connection with a matter arising under subparts B, C, D, E, G, O, or T of this part, subpart I of part 212, or actions of the Director of Oil Imports specified in paragraph (a)(2) of this section, has not exhausted his administrative remedies until an appeal has been filed under this subpart and an order granting or denying the appeal has been issued.

(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) [40 FR 36557, Aug. 21, 1975, as amended at 41 FR 22343, June 3, 1976; 43 FR 14437, Apr. 6, 1978]

§ 205.101 Who may file.

Any person aggrieved by an order issued by the DOE under subparts B, C, D, E, G, O, or T of this part, subpart I of part 212, or actions of the Director of Oil Imports specified in

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