The Code of Federal Regulations of the United States of America

of written comments or the oral presentation of views by adversely affected parties.

§ 205.124 Contents.

(a) An application for stay or temporary exception shall contain a full and complete statement of all relevant facts pertaining to the act or transaction that is the subject of the application and to the DOE action sought. Such facts shall include, but not be limited to, all information that relates to

satisfaction of the criteria in

§ 205.125(b).

(b) The application shall include a description of the proceeding incident to which the stay or temporary exception is being sought. This description shall contain a discussion of all DOE actions relevant to the proceeding.

§ 205.125 DOE evaluation.

(a) Processing. (1) The Office of Hearings and Appeals may initiate an investigation of any statement in an application and utilize in its evaluation any relevant facts obtained by such investigation. The Office of Hearings and Appeals may solicit and accept submissions from third persons relevant to an application provided that the applicant is afforded an opportunity to respond to all third person submissions. In evaluating an application, the Office of Hearings and Appeals may also consider any other source of information.

(2) If the Office of Hearings and Appeals determines that there is insufficient information upon which to base a decision and if upon request additional information is not submitted by the applicant, the Office of Hearings and Appeals may dismiss the application without prejudice. If the failure to supply additional information is repeated or willful, the Office of Hearings and Appeals may dismiss the application with prejudice.

(3) The Office of Hearings and Appeals shall process applications for stay and temporary exception as expeditiously as possible. When administratively feasible, the Office of Hear

ings and Appeals shall grant or deny an application for stay or temporary exception within 10 business days after receipt of the application.

(4) Notwithstanding any other provision of the DOE Regulations the Office of Hearings and Appeals may make a decision on an application for stay or temporary exception prior to the receipt of written comments.

(b) Criteria. The criteria to be considered and weighed by the Office of Hearings and Appeals in determining whether a stay or temporary exception should be granted are:

(1) Whether a showing has been made that an irreparable injury will result in the event that the stay or temporary exception is denied;

(2) Whether a showing has been made that a denial of the stay or temporary exception will result in a more immediate hardship or inequity to the applicant than to the other persons affected by the proceeding;

(3) Whether a showing has been made that it would be desirable for public policy reasons to grant immediate relief pending a decision on the merits of the underlying appeal or exception application;

(4) Whether a showing has been made that it is impossible for the applicant to fulfill the requirements of an outstanding order or regulatory provision; and

(5) Whether a showing has been made that there is a strong likelihood of success on the merits.

§ 205.126 Decision and order with regard to applications for stay.

(a) In considering applications for stay the Director of the Office of Hearings and Appeals or his designee may order the submission of additional information and conduct hearings or conferences either in response to requests by parties in the proceeding or on his own initiative.

(b) In reaching a decision with respect to an application for stay, the Office of Hearings and Appeals shall consider all relevant information in the record. An application for stay may be decided by the issuance of an Order either during the course of a hearing or conference in which an of

ficial transcript is maintained or in a separate written Decision and Order. Any such order shall include a statement of the relevant facts and the legal basis of the decision.

(c) The approval or denial of a stay is not an order of the DOE that is subject to administrative review, except as provided in § 205.199D(h)(2).

(d) In its discretion and upon a determination that it would be desirable to do so in order to further the objectives stated in the regulations or in the statutes the DOE is responsible for administering, the Office of Hearings and Appeals may order a stay on its own initiative.

§ 205.127 Temporary stay.

(a) The Director of the Office of Hearings and Appeals or his designee may issue an order granting a temporary stay if he determines that an applicant has made a compelling showing that it would incur an irreparable injury unless immediate stay relief is granted pending the submission of and determination on an application for stay submitted pursuant to this subpart. If he concludes that a showing has been made that a temporary stay should be granted, the Director of the Office of Hearings, and Appeals or his designee may waive any other procedural requirement of this part.

(b) An application for temporary stay shall be labeled as such on the application and on the outside of the envelope in which the application is transmitted, and shall be in writing and signed by the person filing the application. It shall include a description of the proceeding incident to which the stay is being sought and of the facts and circumstances which support the applicant's claim that it will incur an irreparable injury unless immediate stay relief is granted. The applicant shall comply with the general filing requirements stated in § 205.9 in addition to the requirements stated in this section. The Office of Hearings and Appeals may on its own initiative issue an order granting a temporary stay upon a finding that a person will incur an immediate irreparable injury or that the public interest will be adversely affected to a substantial extent unless a temporary stay is ordered.

(c) An order granting a temporary stay shall expire by its terms within twenty (20) business days after its issuance, unless the Office of Hearings and Appeals specifies a shorter expiration date.

(d) The grant or denial of a temporary stay is not an order of the DOE subject to administrative review, except as provided in § 205.199D(h)(2). § 205.128 Temporary exception.

(a) After considering the factors set forth in § 205.125(b), the Director of the Office of Hearings and Appeals or his designee may issue an Order granting a temporary exception to an applicant. A temporary exception may implement on an immediate basis any relief appropriate to the application and available in response to an application for exception filed pursuant to subpart D. A temporary exception may also order any person subject to the jurisdiction of the DOE under part 211 or part 212 to take action which the Office of Hearings and Appeals determines to be appropriate in order to alleviate the adverse impact which the applicant for exception relief claims would otherwise occur. The action referred to in this subparagraph includes but is not limited to an order to a supplier to sell crude oil or a petroleum product to a firm at a price specified in or determined pursuant to a temporary exception decision.

(b) A temporary exception may, in the discretion of the Office of Hearings and Appeals, remain in effect until a final Decision and Order is issued with respect to the Application for Exception filed or to be filed by the applicant.

(c) In considering applications for temporary exception, the Director of the Office of Hearings and Appeals or his designee may order the submission of additional information and conduct conferences or hearings either in response to requests by the parties or on his own initiative.

(d) An application for temporary exception shall include a description of the proceeding incident to which the temporary exception is being sought and of the facts and circumstances which support the applicant's claim

that on balance, it satisfies the criteria set forth in § 205.125(b). In reaching a decision with respect to an application for temporary exception, the Office of Hearings and Appeals shall consider all relevant information in the record. An application for temporary exception may be decided by the issuance of an Order either during the course of a hearing or conference in which an official transcript is maintained or in a separate Decision and Order. Any such Order shall include a statement of the relevant facts and the legal basis of the decision.

(e) A temporary exception shall, to the extent practicable, be issued only after notice to each person that can be readily identified as one that will be directly aggrieved by the temporary exception decision. However, if a showing is made that immediate action is necessary to prevent an irreparable injury to the applicant or to the public interest the Director of the Office of Hearings and Appeals or his designee may waive the notice requirements for applications for temporary exception that are otherwise specified in this part and issue an immediate decision with regard to the application for temporary exception. The Office of Hearings and Appeals may also on its own initiative issue an order granting a temporary exception upon a finding that a person will incur an immediate irreparable injury if such an order is not issued or that the public interest will be adversely affected to a substantial extent unless a temporary exception is approved. Any firm that is adversely affected to a direct and substantial extent by the issuance of a temporary exception and did not have notice of the pendency of the proceeding may request a reconsideration of the determination within 10 days of service of the temporary exception order. The Office of Hearings and Appeals shall decide any such request for reconsideration within twenty (20) business days.

(f) An order granting an application for temporary exception shall automatically expire within twenty (20) business days after issuance unless, within that period of time or within an earlier period if so specified by the Office of Hearings and Appeals, the

applicant files an Application for Exception pursuant to subpart D.

(g) The grant or denial of a temporary exception is not an order of the DOE subject to administrative review.

Subpart J-Modification or Rescission

§ 205.130 Purpose and scope.

This subpart establishes the procedures for the filing of an application for modification or rescission of a DOE order. An application for modification or rescission is a summary proceeding that will be initiated only if the criteria described in § 205.135(b) are satisfied.

(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 an "Application for Modification (or Rescission)", which should be clearly labeled as such both on the application and on the outside of the envelope in which the application is transmitted, and shall be in writing and signed by the person filing the application. The applicant shall comply with the general filing requirements stated in § 205.9 in addition to the requirements stated in this subpart.

(b) If the applicant wishes to claim confidential treatment for any information contained in the application or other documents submitted under this subpart, the procedures set out in § 205.9(f) shall apply.

(b) When the order sought to be modified or rescinded was issued by a Regional Office, the application shall be filed with that Regional Office at the address provided in § 205.12.

§ 205.133 Notice.

(a) The applicant shall send by United States mail a copy of the application and any subsequent amendments or other documents relating to the application, from which confidential information has been deleted in accordance with § 205.9(f), to each person who is reasonably ascertainable by the applicant as a person who will be aggrieved by the DOE action sought, including persons who participated in the prior proceeding. The copy of the application shall be accompanied by a statement that the person may submit comments regarding the application to the DOE office with which the application was filed within 10 days. The application filed with the DOE shall include certification to the DOE that the applicant has complied with the requirements of this paragraph and shall include the names and addresses of each person to whom a copy of the application was sent.

(b) Notwithstanding paragraph (a) of this section, if an applicant determines that compliance with paragraph (a) of this section would be impracticable, the applicant shall:

(1) Comply with the requirements of paragraph (a) of this section with regard to those persons whom it is reasonable and possible to notify; and

(2) Include with the application a description of the persons or class or classes of persons to whom notice was not sent.

The DOE may require the applicant to provide additional or alternative notice, or may determine that the

notice required by paragraph (a) of this section is not impracticable, or may determine that notice should be published in the FEDERAL REGISTER.

(c) The DOE shall serve notice on any other person readily identifiable by the DOE as one who will be aggrieved by the DOE action sought and may serve notice on any other person that written comments regarding the application will be accepted if filed within 10 days of service of that notice.

(d) Any person submitting written comments to the DOE with respect to an application filed under this subpart shall send a copy of the comments, or a copy from which confidential information has been deleted in accordance with § 205.9(f), to the applicant. The person shall certify to the DOE that it has complied with the requirements of this paragraph. The DOE may notify other persons participating in the proceeding of such comments and provide an opportunity for such persons to respond.

(a) 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. Such facts shall include the names and addresses of all affected persons (if reasonably ascertainable); a complete statement of the business or other reasons that justify the act or transaction; a description of the acts or transactions that would be affected by the requested action; and a full description of the pertinent provisions and relevant facts contained in any relevant documents. Copies of all contracts, agreements, leases, instruments, and other documents relevant to the application shall be submitted to the DOE upon its request. A copy of the order of which modification or rescission is sought shall be included with the application. When the application pertains to only one step of a larger integrated transaction, the facts, circumstances, and other relevant information pertaining to the entire transaction shall be submitted.

(b) The applicant shall state whether he requests or intends to request that there be a conference regarding the application. Any request not made at the time the application is filed shall be made as soon thereafter as possible, to insure that the conference is held when it will be most beneficial. The request and the DOE's determination regarding it shall be made in accordance with subpart M of this part. (c) The applicant shall fully describe the events, acts, or transactions that comprise the significantly changed circumstances, defined in § 205.135(b)(2), upon which the application is based. The applicant shall state why, if the significantly changed circumstance is new or newly discovered facts, such facts were not or could not have been presented during the prior proceeding.

(d) The application shall include a discussion of all relevant authorities, including, but not limited to, DOE rulings, regulations, interpretations and decisions on appeal and exception relied upon to support the action sought therein.

§ 205.135 DOE evaluation.

(a) Processing. (1) The DOE may initiate an investigation of any statement in an application and utilize in its evaluation any relevant facts obtained by such investigation. The DOE may solicit and accept submissions from third persons relevant to any application for modification or rescission provided that the applicant is afforded an opportunity to respond to all third person submissions. In evaluating an application for modification or rescission, the DOE may convene a conference, on its own initiative, if, in its discretion, it considers that such conference will advance its evaluation of the application.

(2) If the DOE determines that there is insufficient information upon which to base a decision and if upon request the necessary additional information is not submitted, the DOE may dismiss the application without prejudice. If the failure to supply additional information is repeated or willful, the DOE may dismiss the application with prejudice. If the applicant fails to provide the notice required by § 205.133, the DOE may dismiss the application without prejudice.

(3) Failure to satisfy requirements. (i) If the applicant fails to satisfy the requirements of paragraph (b)(1) of this section, the DOE shall issue an order denying the application. The order shall state the grounds for the denial.

(ii) The order denying the application shall become final within 10 days of its service upon the applicant, unless within such 10 days period an amendment to correct the deficiencies identified in the order is filed with the Office of Exceptions and Appeals or the appropriate Regional Office.

(iii) Within 10 days of the filing of such amendment, the DOE shall notify the applicant whether the amendment corrects the specified deficiencies. If the amendment does not correct the deficiencies, the notice shall be an order dismissing the application as amended. Such order shall be a final order of the DOE of which the applicant may seek judicial review.

(b) Criteria. (1) An application for modification or rescission of an order shall be processed only if:

(i) The application demonstrates that it is based on significantly

changed circumstances; and

(ii) The 30-day period within which a person may file an appeal has lapsed or, if an appeal has been filed, a final order has been issued.

(2) For purposes of this subpart, the term "significantly changed circumstances" shall mean:

(i) The discovery of material facts that were not known or could not have been known at the time of the proceeding and action upon which the application is based;

(ii) The discovery of a law, regulation, interpretation, ruling, order or decision on appeal or exception that

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