was in effect at the time of the proceeding upon which the application is based and which, if such had been made known to the DOE, would have been relevant to the proceeding and would have substantially altered the outcome; or

(iii) There has been a substantial change in the facts or circumstances upon which an outstanding and continuing order of the DOE affecting the applicant was issued, which change has occurred during the interval between issuance of such order and the date of the application and was caused by forces or circumstances beyond the control of the applicant. (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]

§ 205.136 Decision and order.

(a) Upon consideration of the application and other relevant information received or obtained during the proceeding, the DOE shall issue an order granting or denying the application.

(b) The order shall include a written statement setting forth the relevant facts and the legal basis of the order. The order shall state that it is a final order of which the applicant may seek judicial review.

(c) The DOE shall serve a copy of the order upon the applicant, any other person who participated in the proceeding and upon any other person readily identifiable by the DOE as one who is aggrieved by such order.

Subpart K-Rulings

§ 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.

§ 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.

(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, no person shall be entitled to rely upon the ruling.

Subpart L-Rulemaking

§ 205.160 Purpose and scope.

(a) This subpart establishes the procedures that govern a rulemaking proceeding. The initiation of a rulemaking proceeding is within the sole discretion of the DOE.

(b) Rulemaking by the DOE shall be in accordance with the Administrative Procedure Act (5 U.S.C. 551, et. seq. (1970)), the FEAA, and the EPCA.

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

§ 205.161 What to file.

(a) Comments in connection with a rulemaking. Any comments filed in connection with a rulemaking shall be filed in accordance with the instructions in the Notice of Proposed Rulemaking published in the FEDERAL REGISTER. Such comments shall be in writing and signed by the person filing them.

(b) Petition for rulemaking. (1) Any person may at any time file a petition regarding any DOE, regulation or amendment thereto or, by letter, request that a rulemaking proceeding be instituted. Such petition or request shall be signed by the person filing it.

(2) Upon due consideration of a petition for rulemaking, expressly designated as such, the DOE shall either: (i) Institute a rulemaking as proposed or as modified in its discretion; (ii) notify the petitioner in writing that it does not intend to institute a rulemaking as proposed or as modified and stating the reasons therefore; or (iii) notify the petitioner in writing that the matter is under continuing consideration and that no decision can be made at that time because of the inadequacy of available information, changing circumstances or other reasons as set forth therein.

§ 205.162 Where to file.

All comments filed in connection with a rulemaking shall be submitted in accordance with the instructions in the Notice of Proposed Rulemaking. Petitions for rulemaking relating to the functions of the Economic Regulatory Administration (ERA) including, but not limited to, those administered

under parts 210, 211, 212, 213, and 214 of 10 CFR shall be filed with the Economic Regulatory Administration National Office at the address provided in § 205.12 and addressed to the attention of the Assistant Administrator for Regulations and Emergency Planning. Copies of all petitions for rulemaking filed with ERA shall also be filed with Office of General Counsel at the address indicated in § 205.12, addressed to the attention of the Deputy General Counsel for Regulations. Any other petition or request shall be filed with the Office of General Counsel at the address indicated in § 205.12, addressed to the attention of the Deputy General Counsel for Regulations.

(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. 94385; 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)

[45 FR 37684, June 4, 1980]

Subpart M-Conferences, Hearings, and Public Hearings

§ 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.

§ 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.

§ 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:

(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]

§ 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.

presid

(e) The DOE shall appoint ing 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 Viola

tion, a Notice of Probable Disallowance, a Proposed Remedial Order, a Proposed Order of Disallowance, or an Interim Remedial Order for Immediate Compliance.

§ 205.191 [Reserved]

§ 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 pri

marily 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