product costs, or relating to prices charged or paid for crude oil; or

(ii) Part 211 of this title, or any order issued thereunder, relating to the allocation of crude oil, including but not limited to all provisions of subpart C of part 211 and any reporting requirements related thereto.

(2) "Distribution at the retail level" shall mean sales to the ultimate consumers of residual fuel oil or refined petroleum products.

(e) Corporate personnel. (1) Any individual director, officer or agent of a corporation who knowingly and willfully authorizes, orders or performs any of the acts or practices constituting in whole or in part a violation of any provision of the regulations issued under authority of the Emergency Petroleum Allocation Act of 1973, as amended, or any order issued pursuant thereto, shall be subject to the penalties specified in paragraphs (b) and (c) of this section without regard to any penalties to which that corporation may be subject under paragraphs (b) and (c) of this section, except that no such individual director, officer or agent shall be subject to imprisonment under paragraph (c) of this section unless he also has knowledge, or reasonably should have known, of notice of noncompliance received by the corporation from the DOE.

(2) For purposes of this paragraph (e):

(i) "Agent" shall include any employee or other person acting on behalf of the corporation on either a temporary or permanent basis, whether or not he has authority to engage in the particular activity involved; and

(ii) "Notice of Noncompliance" shall be a Remedial Order issued under §§ 205.192 or 205.193, and a Consent Order issued under § 205.197.

(f) Other penalties. Willful concealment of material facts, or false or fictitious or fraudulent statements or representations, or willful use of any false writing or document containing false, fictitious or fraudulent statements pertaining to matters within the scope of the EPAA or FEAA by any person shall subject such person to the criminal penalties provided in 18 U.S.C. 1001 (1970).

[39 FR 35489, Oct. 1, 1974, as amended at 41 FR 19931, May 14, 1976. Redesignated at 41 FR 36647, Aug. 31, 1976, and amended at 41 FR 49627, Nov. 10, 1976]

§ 205.204 Injunctions.

Whenever it appears to the Administrator of the DOE, or his delegates, that any person has engaged, is engaged, or is about to engage in any act or practice constituting a violation of any regulation or order issued under this chapter, the Administrator, or his delegate, may request the Attorney General to bring an action in the appropriate district court of the United States to enjoin such acts or practices and, upon a proper showing, a temporary restraining order or a preliminary restraining order or a preliminary or permanent injunction shall be granted without bond. The relief sought may include a mandatory injunction commanding any person to comply with any such order or regulation, or the return of money received in violation of any such order or regulation.

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

Subpart Q-[Reserved]

Subpart R-Office of Private Grievances and Redress

§ 205.230 Purpose and scope.

(a) This subpart establishes the procedures for the DOE Office of Private Grievances and Redress.

(b) The Office shall receive and consider petitions that seek special redress, relief or other extraordinary assistance apart from or in addition to the other proceedings described in this part. Such petitions shall include those seeking special assistance based on an assertion that the DOE or a State Office is not complying with the FEAA, EPAA, DOE regulations, orders or rulings, or otherwise.

(c) The Office also shall receive applications for exemption filed in accordance with subpart E of this part. Such applications shall be processed by the Office in accordance with that subpart. Therefore the procedures provided in this subpart shall only be

applicable to "Petitions for Special Redress or Other Relief."

§ 205.231 Who may file.

Any person aggrieved by the regulations contained in 10 CFR chapter II may file a petition under this subpart.

§ 205.232 What to file.

The person aggrieved shall file a "Petition for Special Redress or Other Relief," which shall be clearly labeled as such both on the petition and on the outside of the envelope in which it is transmitted, and shall be in writing and signed by the person filing it. The petition shall comply with the general filing requirements stated in § 205.9 in addition to the requirements stated in this subpart.

(a) The person filing the petition, except a petition that asserts that the DOE or a State Office is not complying with the FEAA, EPAA, DOE regulations, orders or rulings or otherwise, shall send by United States mail a copy of the petition and any subsequent admendments or other documents relating to the petition, or a copy from which confidential information has been deleted in accordance with § 205.9(f), to each person who is reasonably ascertainable by the petitioner as a person who will be aggrieved by the DOE action sought. The copy of the petition shall be accompanied by a statement that the person may submit comments regarding the petition to the Office of Private Grievances and Redress within 10 days. The copy filed with the Office shall include certification to the DOE that the requirements of this paragraph have been complied with and shall include the names and addresses of each person to whom a copy of the petition was sent.

(b) Notwithstanding the provisions of paragraph (a) of this section, if the petitioner determines that compliance with paragraph (a) of this section

would be impracticable, the petitioner shall:

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

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

(3) The DOE may require the petitioner 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 that written comments regarding the petition will be accepted if filed within 10 days of service of that notice.

(d) Any person submitting written comments to the DOE regarding a petition filed under this subpart shall send a copy of the comments, or a copy from from which confidential information has been deleted in accordance with § 205.9(f), to the petitioner. 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.

The petition shall contain a full and complete statement of all relevant facts pertaining to the circumstances, act or transaction that is the subject of the petition and to the DOE action sought. Such facts shall include, but not be limited to, 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, if applicable; a description of the acts or transactions that would be affected by the requested action; a full discussion of the pertinent provisions and relevant facts contained in the documents submitted with the petition, and an explanation of how the

petitioner is aggrieved by the regulation. Copies of all contracts, agreements, leases, instruments, and other documents relevant to the petition shall be submitted to the DOE upon its request. When the petition pertains to only one step of a larger integrated transaction, the facts, circumstances, and other relevant information pertaining to the entire transaction must be submitted.

§ 205.236 DOE evaluation of request.

(a) Processing. (1) The DOE may initiate an investigation of any statements in a petition 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 petition provided that the petitioner is afforded an opportunity to respond to all third person submissions. In evaluating a petition, 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 will advance its evaluation of the petition.

(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 petition without prejudice. If the failure to supply additional information is repeated or willful, the DOE may dismiss the petition with prejudice. If the petitioner fails to provide the notice required by § 205.234, the DOE may dismiss the petition without prejudice.

(b) Criteria. (1) The DOE will dismiss without prejudice a "Petition for Special Redress or Other Relief" if it determines that another more appropriate proceeding is provided by this part. Upon that determination, the Office will transmit the petition to the DOE Office responsible for such other proceeding and the petition thereafter will be processed as an application or request for such other DOE action. The petitioner shall be given a reasonable period of time to conform the petition to the procedural requirements of the other proceeding, if necessary.

(2) The DOE will dismiss with prejudice a "Petition for Special Redress or

Other Relief" filed by a person who has exhausted his administrative remedies with respect to any proceeding provided by this part, as provided in subpart H, and received a final order therefrom that deals with the same issue or transaction; and, similarly, will dismiss with prejudice such petition if filed by a person who has not exhausted his administrative remedies as provided in this part.

§ 205.237 Decision and response.

(a) Upon consideration of the petition and other relevant information received or obtained during the proceeding, the DOE will issue an order granting or denying the petition, except a petition regarding the DOE or a State Office. The latter petition will be considered to be advice only and no order shall be issued in response thereto.

(b) The order denying or granting the petition shall include a written statement setting forth the relevant facts and legal basis for the order. Such order shall state that it is a final order of the DOE of which the petitioner may seek judicial review.

Subparts S-T-[Reserved]

Subpart U-Procedures for Electricity Export Cases

AUTHORITY: Federal Power Act, 41 Stat. 1063, as amended; Executive Order 10485, as amended by Executive Order 12038; Federal Energy Administration Act of 1974, 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, Pub. L. 95-70; Department of Energy Organization Act, Pub. L. 95-91; E.O. 11790, 39 FR 23185; E.O. 12009, 42 FR 46267.

SOURCE: 49 FR 35315, Sept. 6, 1984, unless otherwise noted.

§ 205.260 Purpose and scope.

(a) The purpose of this section is to state the procedures that will be followed by the Economic Regulatory Administration of the Department of Energy in electricity export adjudications.

(b) Definitions.

As used in this subpart

Administrator means the Administrator of the Economic Regulatory Administration.

Decisional employees means the Administrator, presiding officers at adjudicatory hearings, and other employees of the Department, including consultants and contractors, who are, or may reasonably be expected to be, involved in the decision-making process, which includes advising the Administrator in resolving the issues in an adjudication. The term does not include those employees of the Department performing investigative or trial functions in an adjudication, unless they are specifically requested by the Administrator or his delegate to participate in the decision-making process. Department means the Department of Energy.

communication

Off-the-record means an ex parte communication, which is an oral or written communication relevant to the merits of an adjudication and not on the record and with respect to which reasonable prior notice to all participants and opportunity to be present at, or respond to, the communication is not given, but does not include a communication relating solely to procedures which are not relevant to the merits of the adjudication.

Interested person means a person outside the Department whose interest in the adjudication goes beyond the general interest of the public as a whole and includes applicants, intervenors, competitors of applicants, nonprofit and public interest organizations, and other individuals and organizations, including state, local and other public officials, with a proprietary, financial or other special interest in the outcome of the adjudication. The term does not include other federal agencies, unless an agency is a participant in the adjudication.

Participant means any applicant or intervenor participating in the adjudication.

Adjudication means a formal proceeding employing procedures identical or similar to those required by the Administrative Procedure Act, as codified in 5 U.S.C. 551, 556, and 557, to consider an application to export electricity.

§ 205.270

Off-the-record communications. (a) In any proceeding which is subject to this subpart

(1) No interested person shall make an off-the-record communication or knowingly cause an off-the-record communication to be made to any decisional employee.

(2) No decisional employee shall make an off-the-record communication or knowingly cause an off-therecord communication to be made to any interested person.

(3) A decisional employee who receives, makes, or knowingly causes to be made an oral communication prohibited by this section shall prepare a memorandum stating the substance of the communication and any responses made to it.

(4) With 48 hours of receiving, making or knowingly causing to be made a communication prohibited by this section, a decisional employee shall deliver all written off-the-record communications and all memoranda prepared in compliance with paragraph (a)(3) of this section to the Director of the Coal and Electricity Division, ERA, who will immediately place the materials described above in the public record associated with the adjudication, available for public inspection.

(5) Upon receipt of a communication knowingly made or knowingly caused to be made by a participant in violation of this section, the Administrator or presiding officer may, to the extent consistent with the interests of justice and the applicable statutory policy, require the participant to show cause why his or her claim or interest in the

adjudication should not be dismissed, denied, disregarded, or otherwise adversely affected on account of the violation.

(6) The prohibitions of this section shall apply beginning at the time an adjudication is noticed for hearing (or the person responsible for the communication acquires knowledge that it will be noticed), a protest is filed, or a petition or notice to intervene in opposition to the requested Department action is filed, whichever occurs first.

(b) The prohibition, cited at 18 CFR 1.30(f), against participation in the decision-making process by Department employees who perform investigative or trial functions in an adjudication, shall no longer be applicable to ERA.

Subpart V-Special Procedures for

Distribution of Refunds

AUTHORITY: Economic Stabilization Act of 1970, Pub. L. 92-210; 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. 94385, Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended, Pub. L. 94-332, 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; E.O. 11790, 39 FR 23185; E.O. 12009, 42 FR 46267.

SOURCE: 44 FR 8566, Feb. 9, 1979, unless otherwise noted.

§ 205.280 Purpose and scope.

This subpart establishes special procedures pursuant to which refunds may be made to injured persons in order to remedy the effects of a violation of the regulations of the Department of Energy. This subpart shall be applicable to those situations in which the Department of Energy is unable to readily identify persons who are entitled to refunds specified in a Remedial Order, a Remedial Order for Immediate Compliance, an Order of Disallowance or a Consent Order, or to readily ascertain the amounts that such persons are entitled to receive.

§ 205.281 Petition for implementation of special refund procedures.

(a) At any time after the issuance of a Remedial Order (including for purposes of this subpart a Remedial Order for Immediate Compliance and an Order of Disallowance), or a Consent Order, the Special Counsel of the Department of Energy, the ERA Office of Enforcement, or any other enforcement official of the Department of Energy may file with the Office of Hearings and Appeals a Petition for the Implementation of Special Refund Procedures.

(b) The Petition shall state that the person filing it has been unable readily either to identify the persons who are entitled to refunds to be remitted pursuant to a Remedial Order or a Consent Order or to ascertain the amounts of refunds that such persons are entitled to receive. The Petition shall request that the Office of Hearings and Appeals institute appropriate proceedings under this Subpart to distribute the funds referred to in the enforcement documents.

(c) The Petition shall contain a copy of each relevant enforcement document, shall be filed in duplicate, and shall meet the requirements of § 205.9 of this part.

§ 205.282 Evaluation of petition by the Office of Hearings and Appeals.

(a) After considering the Petition, the Director of the Office of Hearings and Appeals or his designee shall issue a Proposed Decision and Order. The Proposed Decision and Order shall generally describe the nature of the particular refund proceeding and shall set forth the standards and procedures that the Office of Hearings and Appeals intends to apply in evaluating refund claims.

(b) The Proposed Decision and Order shall be published in the FEDERAL REGISTER together with a statement that any member of the public may submit written comments to the Office of Hearings and Appeals with respect to the matter. At least 30 days following publication in the FEDERAL REGISTER shall be provided for the submission of comments.