US LAWS, STATUTES & CODES ON-LINE

(1) Documents for which a specific address and/or code number is not provided in accordance with paragraphs (a)(2) through (7) of this section, shall be addressed as follows: Department of Energy, Attn: (name of person to receive document, if known, or subject), Washington, DC 20461.

(2) Documents to be filed with the Office of Exceptions and Appeals, as provided in this part or otherwise, shall be addressed as follows. Office of Exceptions and Appeals, Department of Energy, Attn: (name of person to receive document, if known, and/or labeling as specified in §205.9(c)), Washington, DC 20461.

(3) Documents to be filed with the Office of General Counsel, as provided in this part or otherwise, shall be addressed as follows: Office of the General Counsel, U.S. Department of Energy, Attn: (name of person to receive document, if known, and labeling as specified in §205.9(c)), 1000 Independence Avenue, Washington, DC 20585.

(4) Documents to be filed with the Office of Private Grievances and Redress, as provided in this part or otherwise, shall be addressed as follows: Office of Private Grievances and Redress, Department of Energy, Attn: (name of person to receive document, if known and/or labeling as specified in §205.9(c)), Washington, DC 20461.

(5) All other documents filed, except those concerning price (see paragraph (a)(6) of this section), those designated as DOE or FEO forms (see paragraph (a)(7) of this section), and “Surplus Product Reports” (see paragraph (a)(8) of this section), but including those pertaining to compliance and allocation (adjustment and assignment) of allocated products, are to be identified by one of the code numbers stated below and addressed as follows: Department of Energy, Code__, labeling as specified in §205.9(c), Washington, DC 20461.

(6) Documents pertaining to the price of covered products, except those to be submitted to other offices as provided in this part, shall be addressed to the Department of Energy, Code 1000, Attn: (name of person to receive document, if known, and/or labeling as specified in §205.9(c)), Washington, DC 20461.

(7) Documents designated as DOE or FEO forms shall be submitted in accordance with the instructions stated in the form.

(8) “Surplus Product Reports” shall be submitted to the Department of Energy, Post Office Box 19407, Washington, DC 20036.

(9) Documents to be filed with the Director of Oil Imports, as provided in this part or otherwise, shall be addressed as follows: Director of Oil Imports, Department of Energy, P.O. Box 7414, Washington, DC 20044.

(10) Petitions for rulemaking to be filed with the Economic Regulatory Administration National Office shall be addressed as follows: Economic Regulatory Administration, Attn: Assistant Administrator for Regulations and Emergency Planning (labeled as “Petition for Rulemaking,”) 2000 M Street, N.W., Washington, DC 20461.

(b) All reports, applications, requests, notices, complaints, written communications and other documents to be submitted to or filed with an DOE Regional Office in accordance with this chapter shall be directed to one of the following addresses, as appropriate:

Region 1

(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. 94–385; 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)

[39 FR 35489, Oct. 1, 1974, as amended at 40 FR 36555, Aug. 21, 1975; 45 FR 37684, June 4, 1980]

(a) Except as otherwise specifically provided in other subparts of this part, all documents to be filed with the ERA pursuant to this part shall be filed with the appropriate ERA Regional Office (unless otherwise specified in part 211 of this chapter), except that all documents shall be filed with the ERA National Office that relate to:

(1) The allocation and pricing of crude oil pursuant to subpart C of part 211 and part 212 of this chapter;

(2) Refinery yield controls pursuant to subpart C of part 211 of this chapter;

(3) The pricing of propane, butane and natural gasoline pursuant to part 212 of this chapter and the allocation of butane and natural gasoline pursuant to part 211 of this chapter;

(4) The allocation and pricing of middle distillate fuels pursuant to subpart G of part 211 and part 212 of this chapter, filed by electric utilities;

(5) The allocation and pricing of aviation fuel pursuant to subpart H of part 211 and part 212 of this chapter, filed by civil air carriers (except air taxi/commercial operators);

(6) The allocation and pricing of residual fuel oil pursuant to subpart I of part 211 and part 212 of this chapter, filed by electric utilities;

(7) The allocation and pricing of naphtha and gas oil pursuant to subpart J of part 211 and part 212 of this chapter;

(8) The allocation and pricing of other products pursuant to subpart K of part 211 and part 212 of this chapter;

(9) An application for an exemption under subpart E of this part; requests for a rulemaking proceeding under subpart L of this part or for the issuance of a ruling under subpart K of this part; and petitions to the Office of Private Grievances and Redress under subpart R of this part;

(10) The pricing of products pursuant to part 212 of this chapter, filed by a refiner; and

(11) The allocation of crude oil and other allocated products to meet Department of Defense needs pursuant to part 211 of this chapter.

(12) The allocation of crude oil and other allocated products to be utilized as feedstock in a synthetic natural gas plant, pursuant to §211.29.

(13) Allocations, fee-paid and fee-exempt licenses issued pursuant to part 213 of this chapter.

(b) Applications by end-users and wholesale purchasers for an allocation under the state set-aside system in accordance with §211.17 shall be filed with the appropriate State Office.

(c) Applications to a State Office or a DOE Regional Office shall be directed to the office located in the state or region in which the allocated product will be physically delivered. An applicant doing business in more than one state or region must apply separately to each State or region in which a product will be physically delivered, unless the State Offices or Regional Offices involved agree otherwise.

[39 FR 35489, Oct. 1, 1974, as amended at 39 FR 36571, Oct. 11, 1974; 39 FR 39022, Nov. 5, 1974; 40 FR 28446, July 7, 1975; 40 FR 36555, Aug. 21, 1975; 44 FR 60648, Oct. 19, 1979]

All interpretations, orders, notices of probable violation or other directives issued, all proceedings initiated, and all other actions taken in accordance with part 205 as it existed prior to the effective date of this amendment, are hereby confirmed and ratified, and shall remain in full force and effect as if issued under this amended part 205, unless or until they are altered, amended, modified or rescinded in accordance with the provisions of this part.

There shall be established at the DOE National Office, 12th and Pennsylvania Avenue, NW., Washington, DC, a public docket room in which shall be made available for public inspection and copying:

(a) A list of all persons who have applied for an exception, an exemption, or an appeal, and a digest of each application;

(b) Each decision and statement setting forth the relevant facts and legal basis of an order, with confidential information deleted, issued in response to an application for an exception or exemption or at the conclusion of an appeal;

(c) The comments received during each rulemaking proceeding, with a verbatim transcript of the public hearing if such a public hearing was held; and

(d) Any other information required by statute to be made available for public inspection and copying, and any information that the DOE determines should be made available to the public.

(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.

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 relevant 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.

(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 date 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.

(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]

There is no administrative appeal of an interpretation.

(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)

[43 FR 14437, Apr. 6, 1978]

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.

(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.

(a) A ruling may be modified or rescinded by:

(1) Publication of the modification or rescission in the Federal Register; or

(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.

A written comment on or objection to a published ruling may be filed at any time with the General Counsel at the address specified in §205.12.

There is no administrative appeal of a ruling.

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.

(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.

(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]

(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.

(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.

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.

(a) If the ERA finds, after the 30-day 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 accompanied 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.

(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.

(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.

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.

(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.

(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 certificate 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.

(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 erroneous, 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 include 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.

(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 any issue of fact or law advanced in a Statement of Objections be dismissed. Any such request shall be accompanied by a full discussion of the reasons supporting the dismissal.

(b) A participant may submit a Reply to any Response within 10 days after the date of service of the Response.

(a) If a person intends to file a Motion for Discovery, he must file it at the same time that he files his Statement of Objections or at the same time he files his Response to a Statement of Objections, whichever is earlier. All Motions for Discovery and related filings must be served upon the person to whom the discovery is directed. If the person to whom the discovery is directed is not on the official service list, the documents served upon him shall include a copy of this section, the address of the Office of Hearings and Appeals and a statement that objections to the Motion may be filed with the Office of Hearings and Appeals.

(b) A Motion for Discovery may request that:

(1) A person produce for inspection and photocopying non-privileged written material in his possession;

(2) A person respond to written interrogatories;

(3) A person admit to the genuineness of any relevant document or the truth of any relevant fact; or

(4) The deposition of a material witness be taken.

(c) A Motion for Discovery shall set forth the reasons why the particular discovery is necessary in order to obtain relevant and material evidence and shall explain why such discovery would not unduly delay the proceeding.

(d) Within 20 days after a Motion for Discovery is served, a participant or a person to whom the discovery is directed may file a request that the Motion be denied in whole or in part, stating the reasons which support the request.

(e) Discovery may be conducted only pursuant to an Order issued by the Office of Hearings and Appeals. A Motion for Discovery will be granted if it is concluded that discovery is necessary for the party to obtain relevant and material evidence and that discovery will not unduly delay the proceeding. Depositions will be permitted if a convincing showing is made that the participant cannot obtain the material sought through one of the other discovery means specified in paragraph (b) of this section.

(f) The Director of the Office of Hearings and Appeals or his designee may issue subpoenas in accordance with §205.8 in support of Discovery Orders, except that §205.8 (h)(2), (3), and (4) shall not apply to such subpoenas.

(g) The Office of Hearings and Appeals may order that any direct expenses incurred by a person to produce evidence pursuant to a Motion for Discovery be charged to the person who filed the Motion.

(h)(1) If a person fails to comply with an order relating to discovery, the Office of Hearings and Appeals may order appropriate sanctions.

(2) It shall be the duty of aggrieved participants to request that appropriate relief be fashioned in such situations.

(i) Any order issued by the Office of Hearings and Appeals with respect to discovery shall be subject to further administrative review or appeal only upon issuance of the determination referred to in §205.199B.

A participant who has unsuccessfully attempted in writing to obtain information that another participant claims is confidential may file a Motion for Discovery and Protective Order. This motion shall meet the requirements of §205.198 and shall specify the particular confidential information that the movant seeks and the reasons why the information is necessary to adequately present the movant's position in the proceeding. A copy of the written request for information, a certification concerning when and to whom it was served and a copy of the response, if any, shall be appended to the motion. The motion must give the possessor of the information notice that a Response to the Motion must be filed within ten days. The Response shall specify the safeguards, if any, that should be imposed if the information is ordered to be released. The Office of Hearings and Appeals may issue a Protective Order upon consideration of the Motion and the Response.

(a) Filing Requirements. At the time a person files a Statement of Objections he may also file a motion requesting an evidentiary hearing be convened. A motion requesting an evidentiary hearing may be filed by any other participant within 30 days after that participant is served with a Statement of Objections.

(b) Contents of Motion for Evidentiary Hearing. A Motion for Evidentiary Hearing shall specify each disputed issue of fact and the bases for the alternative findings the movant asserts. The movant shall also describe the manner in which each disputed issue of fact was raised in any prior administrative proceeding which led to issuance of the Proposed Remedial Order, or why it was not raised. The movant shall with respect to each disputed or alternative finding of fact:

(1) As specifically as possible, identify the witnesses whose testimony is required;

(2) State the reasons why the testimony of the witnesses is necessary; and

(3) State the reasons why the asserted position can be effectively established only through the direct questioning of witnesses at an evidentiary hearing.

(c) Response to Motion for Evidentiary Hearing. Within 20 days after service of any Motion for Evidentiary Hearing, the Office that issued the Proposed Remedial Order shall, and any other participant may file a Response with the Office of Hearings and Appeals. The Response shall specify:

(1) Each particular factual representation which is accepted as correct for purposes of the proceeding;

(2) Each particular factual representation which is denied;

(3) Each particular factual representation which the participant is not in a position to accept or deny;

(4) Each particular factual representation which is not accepted and the participant wishes proven by the submission of evidence;

(5) Each particular factual representation which the participant is prepared to dispute through the testimony of witnesses or the submission of verified documents; and

(6) Each particular factual representation which the participant asserts should be dismissed as immaterial or irrelevant.

(d) Prehearing Conferences. After all submissions with respect to a Motion for Evidentiary Hearing are filed, the Office of Hearings and Appeals may conduct conferences or hearings to resolve differences of view among the participants.

(e) Decision on Motion for Evidentiary Hearing. After considering all relevant information received in connection with the Motion, the Office of Hearings and Appeals shall enter an Order. In the Order the Office of Hearings and Appeals shall direct that an evidentiary hearing be convened if it concludes that a genuine dispute exists as to relevant and material issues of fact and an evidentiary hearing would substantially assist it in making findings of fact in an effective manner. If the Motion for Evidentiary Hearing is granted in whole or in part, the Order shall specify the parties to the hearing, any limitations on the participation of a party, and the issues of fact set forth for the evidentiary hearing. The Order may also require parties that have adopted similar positions to consolidate their presentations and to appear at the evidentiary hearing through a common representative. If the Motion is denied, the Order may allow the movant to file affidavits and other documents in support of his asserted findings of fact.

(f) Review of Decision. The Order of the Office of Hearings and Appeals with respect to a Motion for Evidentiary Hearing shall be subject to further administrative review or appeal only upon issuance of the determination referred to in §205.199B.

(g) Conduct of Evidentiary Hearing. All evidentiary hearings convened pursuant to this section shall be conducted by the Director of the Office of Hearings and Appeals or his designee. At any evidentiary hearing the parties shall have the opportunity to present material evidence which directly relates to a particular issue of fact set forth for hearing. The presiding officer shall afford the parties an opportunity to cross examine all witnesses. The presiding officer may administer oaths and affirmations, rule on objections to the presentation of evidence, receive relevant material, rule on any motion to conform the Proposed Remedial Order to the evidence presented, rule on motions for continuance, dispose of procedural requests, determine the format of the hearing, modify any order granting a Motion for Evidentiary Hearing, direct that written motions or briefs be provided with respect to issues raised during the course of the hearing, issue subpoenas, and otherwise regulate the conduct of the hearing. The presiding officer may take reasonable measures to exclude duplicative material from the hearing, and may place appropriate limitations on the number of witnesses that may be called by a party. The presiding officer may also require that evidence be submitted through affidavits or other documents if the direct testimony of witnesses will unduly delay the orderly progress of the hearing and would not contribute to resolving the issues involved in the hearing. The provisions of §205.8 which relate to subpoenas and witness fees shall apply to any evidentiary hearing, except that subsection §205.8(h) (2), (3), and (4) shall not apply.

(a) A participant is entitled upon timely request to a hearing to present oral argument with respect to the Proposed Remedial Order, whether or not an evidentiary hearing is requested or convened. A participant's request shall normally be considered untimely, if made more than 10 days after service of a determination regarding any motion filed by the requestor or, if no motions were filed by him, if made after the date for filing his Reply or his Response to a Statement of Objections.

(b) If an evidentiary hearing is convened, and a hearing for oral argument is requested, the Office of Hearings and Appeals shall determine whether the hearing for oral argument shall be held in conjunction with the evidentiary hearing or at a separate time.

(c) A hearing for the purpose of receiving oral argument will generally be conducted only after the issues involved in the proceeding have been delineated, and any written material which the Office of Hearings and Appeals has requested to supplement a Statement of Objections or Responses has been submitted. The presiding officer may require further written submissions in support of any position advanced or issued at the hearing, and shall allow responses any such submissions.

(a) After considering all information received during the proceeding, the Director of the Office of Hearings and Appeals or his designee may issue a final Remedial Order. The Remedial Order may adopt the findings and conclusions contained in the Proposed Remedial Order or may modify or rescind any such finding or conclusion to conform the Order to the evidence or on the basis of a determination that the finding or conclusion is erroneous in fact or law or is arbitrary or capricious. In the alternative, the Office of Hearings and Appeals may determine that no Remedial Order should be issued or may remand all or a portion of the Proposed Remedial Order to the issuing DOE office for further consideration or modification. Every determination made pursuant to this section shall state the relevant facts and legal bases supporting the determination.

(b) The DOE shall serve a copy of any determination issued pursuant to paragraph (a) of this section upon the person to whom it is directed, any person who was served with a copy of the Proposed Remedial Order, the DOE office that issued the Proposed Remedial Order, the DOE Assistant General Counsel for Administrative Litigation and any other person on the official service list. Appropriate deletions may be made in the determinations to ensure that confidentiality of information protected from disclosure under 18 U.S.C. 1905 and 5 U.S.C. 552. A copy of the determination with appropriate deletions to protect confidential and proprietary data shall be placed in the Office of Hearings and Appeals Public Docket Room.

(a) The person to whom a Remedial Order is issued by the Office of Hearings and Appeals may file an administrative appeal if the Remedial Order proceeding was initiated by a Notice of Probable Violation issued after October 1, 1977, or, in those situations in which no Notice of Probable Violation was issued, if the proceeding was initiated by a Proposed Remedial Order issued after October 1, 1977.

(b) Any such appeal must be initiated within 30 days after service of the Order by giving written notice to the Office of Hearings and Appeals that the person to whom a Remedial Order is issued wishes to contest the Order.

(c) The Office of Hearings and Appeals shall promptly advise the Federal Energy Regulatory Commission of its receipt of a notice described in paragraph (b) of this section.

(d) The Office of Hearings and Appeals may, on a case by case basis, set reasonable time limits for the Federal Energy Regulatory Commission to complete its action on such an appeal proceeding.

(e) In order to exhaust administrative remedies, a person who is entitled to appeal a Remedial Order issued by the Office of Hearings and Appeals must file a timely appeal and await a decision on the merits. Any Remedial Order that is not appealed within the 30-day period shall become effective as a final Order of the DOE and is not subject to review by any court.

(a) No person who is not employed or otherwise supervised by the Office of Hearings and Appeals shall submit ex parte communications to the Director or any person employed or otherwise supervised by the Office with respect to any matter involved in Remedial Order or Order of Disallowance proceedings.

(1) Ex parte communications include any ex parte oral or written communications relative to the merits of a Proposed Remedial Order, Interim Remedial Order for Immediate Compliance, or Proposed Order of Disallowance proceeding pending before the Office of Hearings and Appeals. The term shall not, however, include requests for status reports, inquiries as to procedures, or the submission of proprietary or confidential information. Notice that proprietary or confidential submissions have been made shall be given to all persons on the official service list.

(b) If any communication occurs that violates the provisions of this section, the Office of Hearings and Appeals shall promptly make the substance of the communication available to the public and serve a copy of a written communication or a memorandum summarizing an oral communication to all participants in the affected proceeding. The Office of Hearings and Appeals may also take any other appropriate action to mitigate the adverse impact to any person whose interest may be affected by the ex parte contact.

The Director of the Office of Hearings and Appeals or his designee may permit upon motion any document or submission referred to in this subpart other than appeals to FERC to be amended or withdrawn after it has been filed or to be filed within a time period different from that specified in this subpart. The Director or his designee may upon motion or on his own initiative issue any interim or ancillary Orders, reconsider any determinations, or make any rulings or determinations that are deemed necessary to ensure that the proceedings specified in this subpart are conducted in an appropriate manner and are not unduly delayed.

A Notice of Probable Violation, Notice of Proposed Disallowance, Proposed Remedial Order or Interim Remedial Order for Immediate Compliance issued pursuant to this subpart shall not be an action from which there may be an administrative appeal pursuant to subpart H. In addition, a determination by the Office of Hearings and Appeals that a Remedial Order, an Order of Disallowance, or a Remedial Order for Immediate Compliance should not be issued shall not be appealable pursuant to subpart H.

(a) A Remedial Order, a Remedial Order for Immediate Compliance, an Order of Disallowance, or a Consent Order may require the person to whom it is directed to roll back prices, to make refunds equal to the amount (plus interest) charged in excess of those amounts permitted under DOE Regulations, to make appropriate compensation to third persons for administrative expenses of effectuating appropriate remedies, and to take such other action as the DOE determines is necessary to eliminate or to compensate for the effects of a violation or any cost disallowance pursuant to §212.83 or §212.84. Such action may include a direction to the person to whom the Order is issued to establish an escrow account or take other measures to make refunds directly to purchasers of the products involved, notwithstanding the fact that those purchasers obtained such products from an intermediate distributor of such person's products, and may require as part of the remedy that the person to whom the Order is issued maintain his prices at certain designated levels, notwithstanding the presence or absence of other regulatory controls on such person's prices. In cases where purchasers cannot be reasonably identified or paid or where the amount of each purchaser's overcharge is incapable of reasonable determination, the DOE may refund the amounts received in such cases directly to the Treasury of the United States on behalf of such purchasers.

(b) The DOE may, when appropriate, issue final Orders ancillary to a Remedial Order, Remedial Order for Immediate Compliance, Order of Disallowance, or Consent Order requiring that a direct or indirect recipient of a refund pass through, by such means as the DOE deems appropriate, including those described in paragraph (a) of this section, all or a portion of the refund, on a pro rata basis, to those customers of the recipient who were adversely affected by the initial overcharge. Ancillary Orders may be appealed to the Office of Hearings and Appeals only pursuant to subpart H.

(a) Notwithstanding any other provision of this subpart, the DOE may at any time resolve an outstanding compliance investigation or proceeding, or a proceeding involving the disallowance of costs pursuant to §205.199E with a Consent Order. A Consent Order must be signed by the person to whom it is issued, or a duly authorized representative, and must indicate agreement to the terms contained therein. A Consent Order need not constitute an admission by any person that DOE regulations have been violated, nor need it constitute a finding by the DOE that such person has violated DOE regulations. A Consent Order shall, however, set forth the relevant facts which form the basis for the Order.

(b) A Consent Order is a final Order of the DOE having the same force and effect as a Remedial Order issued pursuant to §205.199B or an Order of Disallowance issued pursuant to §205.199E, and may require one or more of the remedies authorized by §205.199I and §212.84(d)(3). A Consent Order becomes effective no sooner than 30 days after publication under paragraph (c) of this section, unless (1) the DOE makes a Consent Order effective immediately, because it expressly deems it necessary in the public interest, or (2) the Consent Order involves a sum of less than $500,000 in the aggregate, excluding penalties and interest, in which case it will be effective when signed both by the person to whom it is issued and the DOE, and will not be subject to the provisions of paragraph (c) of this section unless the DOE determines otherwise. A Consent Order shall not be appealable pursuant to the provisions of §205.199C or §205.199D and subpart H, and shall contain an express waiver of such appeal or judicial review rights as might otherwise attach to a final Order of the DOE.

(c) When a Consent Order has been signed, both by the person to whom it is issued and the DOE, the DOE will publish notice of such Consent Order in the Federal Register and in a press release to be issued simultaneously therewith. The Federal Register notice and the press release will state at a minimum the name of the company concerned, a brief summary of the Consent Order and other facts or allegations relevant thereto, the address and telephone number of the DOE office at which copies of the Consent Order will be available free of charge, the address to which comments on the Consent Order will be received by the DOE, and the date by which such comments should be submitted, which date will not be less than 30 days after publication of the Federal Register notice. After the expiration of the comment period the DOE may withdraw its agreement to the Consent Order, attempt to negotiate a modification of the Consent Order, or issue the Consent Order as signed. The DOE will publish in the Federal Register, and by press release, notice of any action taken on a Consent Order and such explanation of the action taken as deemed appropriate. The provisions of this paragraph shall be applicable notwithstanding the fact that a Consent Order may have been made immediately effective pursuant to paragraph (b) of this section (except in cases where the Consent Order involves sums of less than $500,000 in the aggregate, excluding penalties and interest).

(d) At any time and in accordance with the procedures of subpart J, a Consent Order may be modified or rescinded, upon petition by the person to whom the Consent Order was issued, and may be rescinded by the DOE upon discovery of new evidence which is materially inconsistent with evidence upon which the DOE's acceptance of the Consent Order was based. Modifications of a Consent Order which is subject to public comment under the provisions of paragraph (c) of this section, which in the opinion of the DOE significantly change the terms or the impact of the original Order, shall be republished under the provisions of that paragraph.

(e) Notwithstanding the issuance of a Consent Order, the DOE may seek civil or criminal penalties or compromise civil penalties pursuant to subpart P concerning matters encompassed by the Consent Order, unless the Consent Order by its terms expressly precludes the DOE from so doing.

(f) If at any time after a Consent Order becomes effective it appears to the DOE that the terms of the Consent Order have been violated, the DOE may refer such violations to the Department of Justice for appropriate action in accordance with subpart P.

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.

Off-the-record communication 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, non-profit 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.

Reasonable prior notice means 7 days' written notice stating the nature and purpose of the communication.

Relevant to the merits means a communication directly related to the merits of a specific adjudication but does not include general background discussions about an entire industry or communications of a general nature made in the course of developing agency policy for future general application.

(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-the-record 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.

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. 94–385, 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.

(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.

(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.

(c) After considering the comments submitted, the Director of the Office of Hearings and Appeals or his designee shall issue a final Decision and Order which shall govern the disposition of the refunds. The final Decision and Order shall also be published in the Federal Register.

(d) The final Decision and Order shall set forth the standards and procedures that will be used in evaluating individual Applications for Refunds and distributing the refund amount. Those standards and procedures shall be consistent with the provisions of this subpart.

(e) In establishing standards and procedures for implementing refund distributions, the Office of Hearings and Appeals shall take into account the desirability of distributing the refunds in an efficient, effective and equitable manner and resolving to the maximum extent practicable all outstanding claims. In order to do so, the standards for evaluation of individual claims may be based upon appropriate presumptions.

(a) Any person entitled to a refund pursuant to a final Decision and Order issued pursuant to §205.282 may file an Application for Refund. All Applications must be signed by the applicant and specify the DOE order to which they pertain. Any Application for a refund in excess of $100 must be file in duplicate, and a copy of that Application will be available for public inspection in the DOE Public Docket Room at 2000 M Street, NW., Washington, DC. Any applicant who believes that his Application contains confidential information must so indicate on the first page of his Application and submit two additional copies of his Application from which the information that the applicant claims is confidential has been deleted, together with a statement specifying why any such information is privileged or confidential.

(b) The contents of an Application for Refund shall be specified in the final Decision and Order referred to in §205.282(c). A filing deadline for Applications shall also be specified in the final Decision and Order, and shall be no less than 90 days after the publication of the Order in the Federal Register.

(c) Each Application shall be in writing and signed by the applicant, and shall indicate whether the applicant or any person acting on his instructions has filed or intends to file any other Application or claim of whatever nature regarding the matters at issue in the underlying enforcement proceeding. Each Application shall also include a sworn statement by the applicant that all information in his Application is true and correct to the best of his knowledge and belief.

(a) The Director of the Office of Hearings and Appeals may appoint an administrator to evaluate Applications under guidelines established by the Office of Hearings and Appeals. The administrator, if he is not a Federal Government employee, may be compensated from the funds referred to in the Remedial Order or Consent Order. The administrator may design and distribute an optional application form for the convenience of the applicants.

(b) The Office of Hearings and Appeals or its designee may initiate an investigation of any statement made in an Application and may require verification of any document submitted in support of a claim. In evaluating an Application, the Office of Hearings and Appeals or its designee may solicit and consider information obtained from any source and may on its own initiative convene a hearing or conference, if it determines that a hearing or conference will advance its evaluation of an Application.

(c) The Director of the Office of Hearings and Appeals or his designee shall conduct any hearing or conference convened with respect to an Application for Refund and shall specify the time and place for the hearing or conference and notify the applicant. 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. The provisions of §205.8 of this part which relate to subpoenas and witness fees shall apply to any hearing convened with respect to an application for refund, except that §205.8(h) (2), (3) and (4) shall not apply.

(d) Upon consideration of an Application and other relevant information received during the course of a refund proceeding, the Director of the Office of Hearings and Appeals or his designee shall issue an order granting or denying the Application. The order shall contain a concise statement of the relevant facts and the legal basis for the order. A copy of the order, with such modification as is necessary to ensure the confidentiality of information protected from public disclosure by 18 U.S.C. 1905, may be obtained upon request by an applicant or any other person who participated in the proceeding.

An Application for Refund must be filed no later than the date that the Office of Hearings and Appeals establishes pursuant to §205.283(b). Any Application that is not filed on a timely basis may be summarily dismissed. The Office of Hearings and Appeals or its designee may, however, grant extensions of time for good cause shown. Any request for an extension of time must generally be submitted in writing prior to the deadline.

(a) The aggregate amount of all refunds approved by the Office of Hearings and Appeals or its designee in a given case shall not exceed the amount to be remitted pursuant to the relevant DOE enforcement order, plus any accumulated interest, reduced by the amount of any administrative costs approved by the Office of Hearings and Appeals. In the event that the aggregate amount of approved claims exceeds the aggregate amount of funds specified above, the Office of Hearings and Appeals may make refunds on a pro rata basis. The Office of Hearings and Appeals may delay payment of any refunds until all Applications have been processed.

(b) The Office of Hearings and Appeals may decline to consider Applications for refund amounts that, in view of the direct administrative costs involved, are too small to warrant individual consideration.

(a) In implementing the refund procedures specified in this subpart, the Director of the Office of Hearings and Appeals or his designee shall issue an order providing for the custody of the funds to be tendered pursuant to the Remedial Order or Consent Order. This Order may require placement of the funds in an appropriate interest-bearing escrow account, retention of the funds by the firm in a segregated account under such terms and conditions as are specified by the DOE, or the posting of a sufficient bond or other guarantee to ensure payment.

(b) All costs and charges approved by the Office of Hearings and Appeals and incurred in connection with the processing of Applications for Refund or incurred by an escrow agent shall be paid from the amount of funds, including any accumulated interest, to be remitted pursuant to the Remedial Order or Consent Order.

(c) After the expenses referred to in paragraph (b) of this section have been satisfied and refunds distributed to successful applicants, any remaining funds remitted pursuant to the Remedial Order or Consent Order shall be deposited in the United States Treasury or distributed in any other manner specified in the Decision and Order referred to in §205.282(c).

(d) Funds contained in an escrow account, segregated fund, or guaranteed by other approved means shall be disbursed only upon written order of the Office of Hearings and Appeals.

The Director of the Office of Hearings and Appeals or his designee may issue any interim or ancillary orders, or make any rulings or determinations to ensure that refund proceedings, including the actions of the administrator and the custodian of the funds involved in a refund proceeding, are conducted in an appropriate manner and are not unduly delayed.

Authority:  Department of Energy Organization Act, Pub. L. No. 95–91, 91 Stat. 565 (42 U.S.C. Section 7101). Federal Power Act, Pub. L. 66–280, 41 Stat. 1063 (16 U.S.C. Section 792) et seq., Department of Energy Delegation Order No. 0204–4 (42 FR 60726). E.O. 10485, 18 FR 5397, 3 CFR, 1949–1953, Comp., p. 970 as amended by E.O. 12038, 43 FR 4957, 3 CFR 1978 Comp., p. 136.

Source:  45 FR 71560, Oct. 28, 1980; 46 FR 63209, Dec. 31, 1981, unless otherwise noted.

(Approved by the Office of Management and Budget under Control No. 1901–0245)

(a) An electric utility or other entity subject to DOE jurisdiction under part II of the Federal Power Act who proposes to transmit any electricity from the United States to a foreign country must submit an application or be a party to an application submitted by another entity. The application shall be submitted to the Office of Utility Systems of the Economic Regulatory Administration (EPA).

(b) In connection with an application under §§205.300 through 205.309, attention is directed to the provisions of §§205.320 through 205.327, below, concerning applications for Presidential Permits for the construction, connection, operation, or maintenance, at the borders of the United States, of facilities for the transmission of electric energy between the United States and a foreign country in compliance with Executive Order 10485, as amended by Executive Order 12038.

Each application should be made at least six months in advance of the initiation of the proposed electricity export, except when otherwise permitted by the ERA to resolve an emergency situation.

Every application shall contain the following information set forth in the order indicated below:

(a) The exact legal name of the applicant.

(b) The exact legal name of all partners.

(c) The name, title, post office address, and telephone number of the person to whom correspondence in regard to the application shall be addressed.

(d) The state or territory under the laws of which the applicant is organized or incorporated, or authorized to operate. If the applicant is authorized to operate in more than one state, all pertinent facts shall be included.

(e) The name and address of any known Federal, State or local government agency which may have any jurisdiction over the action to be taken in this application and a brief description of that authority.

(f) A description of the transmission facilities through which the electric energy will be delivered to the foreign country, including the name of the owners and the location of any remote facilities.

(g) A technical discussion of the proposed electricity export's reliability, fuel use and system stability impact on the applicant's present and prospective electric power supply system. Applicant must explain why the proposed electricity export will not impair the sufficiency of electric supply on its system and why the export will not impede or tend to impede the regional coordination of electric utility planning or operation.

(h) The original application shall be signed and verified under oath by an officer of the applicant having knowledge of the matters set forth therein.

There shall be filed with the application and as a part thereof the following exhibits:

(a) Exhibit A. A copy of the agreement or proposed agreement under which the electricity is to be transmitted including a listing of the terms and conditions. If this agreement contains proprietary information that should not be released to the general public, the applicant must identify such data and include a statement explaining why proprietary treatment is appropriate.

(b) Exhibit B. A showing, including a signed opinion of counsel, that the proposed export of electricity is within the corporate power of the applicant, and that the applicant has complied or will comply with all pertinent Federal and State laws.

(c) Exhibit C. A general map showing the applicant's overall electric system and a detailed map highlighting the location of the facilities or the proposed facilities to be used for the generation and transmission of the electric energy to be exported. The detailed map shall identify the location of the proposed border crossing point(s) or power transfer point(s) by Presidential Permit number whenever possible.

(d) Exhibit D. If an applicant resides or has its principal office outside the United States, such applicant shall designate, by irrevocable power of attorney, an agent residing within the United States. A verified copy of such power of attorney shall be furnished with the application.

(e) Exhibit E. A statement of any corporate relationship or existing contract between the applicant and any other person, corporation, or foreign government, which in any way relates to the control or fixing of rates for the purchase, sale or transmission of electric energy.

(f) Exhibit F. An explanation of the methodology (Operating Procedures) to inform neighboring electric utilities in the United States of the available capacity and energy which may be in excess of the applicant's requirements before delivery of such capacity to the foreign purchaser. Approved firm export, diversity exchange and emergency exports are exempted from this requirement. Those materials required by this section which have been filed previously with the ERA may be incorporated by reference.

Where the application is for authority to export less than 1,000,000 kilowatt hours annually, applicants need not furnish the information called for in §§205.302(g) and 205.303 (Exhibit C). Applicants, regardless of the amount of electric energy to be exported, may be required to furnish such supplemental information as the ERA may deem pertinent.

(a) An authorization to transmit electric energy from the United States to a foreign country granted by order of the ERA under section 202(e) of the Federal Power Act shall not be transferable or assignable. Provided written notice is given to the ERA within 30 days, the authorization may continue in effect temporarily in the event of the involuntary transfer of this authority by operation of law (including transfers to receivers, trustees, or purchasers under foreclosure or judicial sale). This continuance is contingent on the filing of an application for permanent authorization and may be effective until a decision is made thereon.

(b) In the event of a proposed voluntary transfer of this authority to export electricity, the transferee and the transferor shall file jointly an application pursuant to this subsection, setting forth such information as required by §§205.300 through 205.304, together with a statement of reasons for the transfer.

(c) The ERA may at any time subsequent to the original order of authorization, after opportunity for hearing, issue such supplemental orders as it may find necessary or appropriate.

No authorization granted pursuant to section 202(e) of the Act shall be deemed to prevent an authorization from being granted to any other person or entity to export electric energy or to prevent any other person or entity from making application for an export authorization.

An original and two conformed copies of an application containing the information required under §§205.300 through 205.309 must be filed.

(a) Persons authorized to transmit electric energy from the United States shall promptly file all supplements, notices of succession in ownership or operation, notices of cancellation, and certificates of concurrence. In general, these documents should be filed at least 30 days prior to the effective date of any change.

(b) A change in the tariff arrangement does not require an amendment to the authorization. However, any entity with an authorization to export electric energy shall file with the ERA, and the appropriate state regulatory agency, a certified copy of any changed rate schedule and terms. Such changes may take effect upon the date of filing of informational data with the ERA.

(c) Persons receiving authorization to transmit electric energy from the United States shall submit to the ERA, by February 15 each year, a report covering each month of the preceding calendar year detailing the gross amount of kilowatt-hours of energy, by authorized category, received or delivered, and the cost and revenue associated with each category.

[45 FR 71560, Oct. 28, 1980, as amended at 46 FR 63209, Dec. 31, 1981]

Applications shall be addressed to the Office of Utility Systems of the Economic Regulatory Administration. Every application shall be accompanied by a fee of $500.00. Fee payment shall be by check, draft, or money order payable to the Treasurer of the United States. Copies of applications and notifications of rate changes shall be furnished to the Federal Energy Regulatory Commission and all affected State public utility regulatory agencies.

(a) Any person, firm, co-operative, corporation or other entity who operates an electric power transmission or distribution facility crossing the border of the United States, for the transmission of electric energy between the United States and a foreign country, shall have a Presidential Permit, in compliance with Executive Order 10485, as amended by Executive Order 12038. Such applications should be filed with the Office of Utility Systems of the Economic Regulatory Administration.

Note: E.O. 12038, dated February 3, 1978, amended E.O. 10485, dated September 3, 1953, to delete the words “Federal Power Commission” and “Commission” and substitute for each “Secretary of Energy.” E.O. 10485 revoked and superseded E.O. 8202, dated July 13, 1939.

(b) In connection with applications hereunder, attention is directed to the provisions of §§205.300 to 205.309, above, concerning applications for authorization to transmit electric energy from the United States to a foreign country pursuant to section 202(e) of the Federal Power Act.

Pursuant to the DOE's responsibility under the National Environmental Policy Act, the DOE must make an environmental determination of the proposed action. If, as a result of this determination, an environmental impact statement (EIS) must be prepared, the permit processing time normally will be 18–24 months. If no environmental impact statement is required, then a six-month processing time normally would be sufficient.

Every application shall be accompanied by a fee prescribed in §205.326 of this subpart and shall provide, in the order indicated, the following:

(a) Information regarding the applicant. (1) The legal name of the applicant;

(2) The legal name of all partners;

(3) The name, title, post office address, and telephone number of the person to whom correspondence in regard to the application shall be addressed;

(4) Whether the applicant or its transmission lines are owned wholly or in part by a foreign government or directly or indirectly assisted by a foreign government or instrumentality thereof; or whether the applicant has any agreement pertaining to such ownership by or assistance from any foreign government or instrumentality thereof.

(5) List all existing contracts that the applicant has with any foreign government, or any foreign private concerns, relating to any purchase, sale or delivery of electric energy.

(6) A showing, including a signed opinion of counsel, that the construction, connection, operation, or maintenance of the proposed facility is within the corporate power of the applicant, and that the applicant has complied with or will comply with all pertinent Federal and State laws;

(b) Information regarding the transmission lines to be covered by the Presidential Permit. (1)(i) A technical description providing the following information: (A) Number of circuits, with identification as to whether the circuit is overhead or underground; (B) the operating voltage and frequency; and (C) conductor size, type and number of conductors per phase.

(ii) If the proposed interconnection is an overhead line the following additional information must also be provided: (A) The wind and ice loading design parameters; (B) a full description and drawing of a typical supporting structure including strength specifications; (C) structure spacing with typical ruling and maximum spans; (D) conductor (phase) spacing; and (E) the designed line to ground and conductor side clearances.

(iii) If an underground or underwater interconnection is proposed, the following additional information must also be provided: (A) Burial depth; (B) type of cable and a description of any required supporting equipment, such as insulation medium pressurizing or forced cooling; and (C) cathodic protection scheme. Technical diagrams which provide clarification of any of the above items should be included.

(2) A general area map with a scale not greater than 1 inch=40 kilometers (1 inch=25 miles) showing the overall system, and a detailed map at a scale of 1 inch=8 kilometers (1 inch=5 miles) showing the physical location, longitude and latitude of the facility on the international border. The map shall indicate ownership of the facilities at or on each side of the border between the United States and the foreign country. The maps, plans, and description of the facilities shall distinguish the facilities or parts thereof already constructed from those to be constructed.

(3) Applications for the bulk power supply facility which is proposed to be operated at 138 kilovolts or higher shall contain the following bulk power system information:

(i) Data regarding the expected power transfer capability, using normal and short time emergency conductor ratings;

(ii) System power flow plots for the applicant's service area for heavy summer and light spring load periods, with and without the proposed international interconnection, for the year the line is scheduled to be placed in service and for the fifth year thereafter. The power flow plots submitted can be in the format customarily used by the utility, but the ERA requires a detailed legend to be included with the power flow plots;

(iii) Data on the line design features for minimizing television and/or radio interference caused by operation of the subject transmission facilities;

(iv) A description of the relay protection scheme, including equipment and proposed functional devices;

(v) After receipt of the system power flow plots, the ERA may require the applicant to furnish system stability analysis for the applicant's system.

(c) Information regarding the environmental impacts shall be provided as follows for each routing alternative:

(1) Statement of the environmental impacts of the proposed facilities including a list of each flood plain, wetland, critical wildlife habitat, navigable waterway crossing, Indian land, or historic site which may be impacted by the proposed facility with a description of proposed activities therein.

(2) A list of any known Historic Places, as specified in 36 CFR part 800, which may be eligible for the National Register of Historic Places.

(3) Details regarding the minimum right-of-way width for construction, operation and maintenance of the transmission lines and the rationale for selecting that right-of-way width.

(4) A list of threatened or endangered wildlife or plant life which may be located in the proposed alternative.

(d) A brief description of all practical alternatives to the proposed facility and a discussion of the general environmental impacts of each alternative.

(e) The original of each application shall be signed and verified under oath by an officer of the applicant, having knowledge of the matters therein set forth.

(a) Neither a permit issued by the ERA pursuant to Executive Order 10485, as amended, nor the facility shall be transferable or assignable. Provided written notice is given to the ERA within 30 days, the authorization may continue in effect temporarily in the event of the involuntary transfer of the facility by operation of law (including transfers to receivers, trustees, or purchases under foreclosure or judicial sale). This continuance is contingent on the filing of an application for a new permit and may be effective until a decision is made thereon.

(b) In the event of a proposed voluntary transfer of the facility, the permittee and the party to whom the transfer would be made shall file a joint application with the ERA pursuant to this paragraph, setting forth information as required by §205.320 et seq., together with a statement of reasons for the transfer. The application shall be accompanied by a filing fee pursuant to §205.326.

(c) No substantial change shall be made in any facility authorized by permit or in the operation thereof unless or until such change has been approved by the ERA.

(d) Permits may be modified or revoked without notice by the President of the United States, or by the Administrator of the ERA after public notice.

All applicants shall file an original and two conformed copies of the application and all accompanying documents required under §§205.320 through 205.327.

Persons receiving permits to construct, connect, operate or maintain electric transmission facilities at international boundaries shall submit to the ERA, by February 15 each year, a report covering each month of the preceding calendar year, detailing by category the gross amount of kilowatt-hours of energy received or delivered and the cost and revenue associated with each category.

Applications shall be forwarded to the Office of Utility Systems of the Economic Regulatory Administration and shall be accompanied by a filing fee of $150. The application fee will be charged irrespective of the ERA's disposition of the application. Fee payment shall be by check, draft, or money order payable to the Treasurer of the United States. Copies of applications shall be furnished to the Federal Energy Regulatory Commission and all affected State public utility regulatory agencies.

The applicant may be required after filing the application to furnish such supplemental information as the ERA may deem pertinent. Such requests shall be written and a prompt response will be expected. Protest regarding the supplying of such information should be directed to the Administrator of the ERA.

(a) NEPA Compliance. Except as provided in paragraphs (c) and (e) of this section, when an applicant seeks a Presidential Permit, such applicant will be responsible for the costs of preparing any necessary environmental document, including an Environmental Impact Statement (EIS), arising from ERA's obligation to comply with the National Environmental Policy Act of 1969 (NEPA). ERA will determine whether an environmental assessment (EA) or EIS is required within 45 days of the receipt of the Presidential Permit application and of environmental information submitted pursuant to 10 CFR 205.322 (c) and (d). ERA will use these and other sources of information as the basis for making the environmental determination:

(1) If an EIS is determined to be necessary, the applicant shall enter into a contract with an independent third party, which may be a Government-owned, contractor-operated National Laboratory, or a qualified private entity selected by ERA. The third party contractor must be qualified to conduct an environmental review and prepare an EIS, as appropriate, under the supervision of ERA, and may not have a financial or other interest in the outcome of the proceedings. The NEPA process must be completed and approved before ERA will issue a Presidential Permit.

(2) If an EA is determined to be necessary, the applicant may be permitted to prepare an environmental assessment pursuant to 10 CFR 1506.5(b) for review and adoption by ERA, or the applicant may enter into a third party contract as set forth in this section.

(b) Environmental Review Procedure. Except as provided in paragraphs (c) and (e) of this section, environmental documents, including the EIS, where necessary, will be prepared utilizing the process set forth above. ERA, the applicant, and the independent third party, which may be a Government-owned, contractor-operated National Laboratory or a private entity, shall enter into an agreement in which the applicant will engage and pay directly for the services of the qualified third party to prepare the necessary environmental documents. The agreement shall outline the responsibilities of each party and its relationship to the other two parties regarding the work to be done or supervised. ERA shall approve the information to be developed and supervise the gathering, analysis and presentation of the information. In addition, ERA will have the authority to approve and modify any statement, analysis, and conclusion contained in the environmental documents prepared by the third party. Before commencing preparation of the environmental document the third party will execute an ERA-prepared disclosure document stating that it does not have any conflict of interest, financial or otherwise, in the outcome of either the environmental process or the Permit application.

(c) Financial Hardship. Whenever ERA determines that a project is no longer economically feasible, or that a substantial financial burden would be imposed by the applicant bearing all of the costs of the NEPA studies, ERA may waive the requirement set forth in paragraphs (a) and (b) of this section and perform the necessary environmental review, completely or in part, with its own resources.

(d) Discussions Prior to Filing. Prior to the preparation of any Presidential Permit application and environmental report, a potential applicant is encouraged to contact ERA and each affected State public utility regulatory agency to discuss the scope of the proposed project and the potential for joint State and Federal environmental review.

(e) Federal Exemption. Upon a showing by the applicant that it is engaged in the transaction of official business of the Federal Government in filing the application pursuant to 10 CFR 205.320 et seq., it will be exempt from the requirements of this section.

[48 FR 33819, July 25, 1983]

(a) NEPA Compliance. Except as provided in paragraph (b) and (e) of this section, applicants seeking Presidential Permits will be financially responsible for the expenses of any contractor chosen by ERA to prepare any necessary environmental document arising from ERA's obligation to comply with the National Environmental Policy Act of 1969 (NEPA) in issuing such Presidential Permits:

(1) ERA will determine whether an Environmental Impact Statement (EIS) or an Environmental Assessment (EA) is required within 45 days of receipt of the Presidential Permit application and of the environmental information submitted pursuant to 10 CFR 205.322 (c) and (d). ERA will use these and other sources of information as the basis for making the environmental determination.

(2) If an EIS is determined to be necessary, ERA will notify the applicant of the fee for completing the EIS within 90 days after the submission of the application and environmental information. The fee shall be based on the expenses estimated to be incurred by DOE in contracting to prepare the EIS (i.e., the estimated fee charges to ERA by the contractor). DOE employee salaries and other fixed costs, as set forth in OMB Circular A–25, shall not be included in the applicant's fee. Fee payment shall be by check, draft, or money order payable to the Treasurer of the United States, and shall be submitted to ERA. Upon submission of fifty percent of the environmental fee, ERA will provide to the applicant a tentative schedule for completion of the EIS.

(3) If an EA is determined to be necessary, the applicant may be permitted to prepare an environmental assessment pursuant to 40 CFR 1506.5(b) for review and adoption by ERA, or the applicant may choose to have ERA prepare the EA pursuant to the fee procedures set forth above.

(4) The NEPA process must be completed and approved before ERA will issue a Presidential Permit.

(b) Financial Hardship. Whenever ERA determines that a project is no longer economically feasible, or that a substantial financial burden would be imposed by the applicant bearing all of the costs of the NEPA studies, ERA may waive the requirement set forth in paragraphs (a) and (b) of this section and perform the necessary environmental review, completely or in part, with its own resources.

(c) Discussions Prior to Filing. Prior to the preparation of any Presidential Permit application and environmental assessment, a potential applicant is encouraged to contact ERA and each affected State public utility regulatory agency to discuss the scope of the proposed project and the potential for joint State and Federal environmental review.

(d) Fee Payment. The applicant shall make fee payment for completing the EIS to ERA in the following manner:

(1) 50 percent of the total amount due to be paid within 30 days of receipt of the fee information from DOE;

(2) 25 percent to be paid upon publication of the draft EIS; and

(3) 25 percent to be paid upon publication of the final EIS.

If costs are less than the amount collected, ERA will refund to the applicant the excess fee collected. If costs exceed the initial fee, ERA will fund the balance, unless the increase in costs is caused by actions or inactions of the applicant, such as the applicant's failure to submit necessary environmental information in a timely fashion. If the application is withdrawn at any stage prior to issuance of the final EIS, the fee will be adjusted to reflect the costs actually incurred; payment shall be made by the applicant within 30 days of above referenced events.

(e) Federal Exemption. Upon a showing by the applicant that it is engaged in the transaction of official business of the Federal Government in filing an application pursuant to 10 CFR 205.320 et seq., it will be exempt from the requirements of this section.

[48 FR 33820, July 25, 1983]

Authority:  Department of Energy Organization Act, Pub. L. 95–91 (42 U.S.C. 7101); Federal Power Act, Pub. L. 66–280 (16 U.S.C. 791 et seq.)

Source:  Sections 205.350 through 205.353 appear at 51 FR 39745, Oct. 31, 1986, unless otherwise noted.

§ 205.350   General purpose.

The purpose of this rule is to establish a procedure for the Office of International Affairs and Energy Emergencies (IE) to obtain current information regarding emergency situations on the electric energy supply systems in the United States so that appropriate Federal emergency response measures can be implemented in a timely and effective manner. The data also may be utilized in developing legislative recommendations and reports to the Congress.

For the purpose of this section, a report or a part of a report may be made jointly by two or more entities. Every electric utility or other entity engaged in the generation, transmission or distribution of electric energy for delivery and/or sale to the public shall report promptly, through the DOE Emergency Operations Center, by telephone, the occurrence of any event such as described in paragraphs (a) through (d) of this section. These reporting procedures are mandatory. Entities that fail to comply within 24 hours will be contacted and reminded of their reporting obligation.

(a) Loss of Firm System Loads, caused by:

(1) Any load shedding actions resulting in the reduction of over 100 megawatts (MW) of firm customer load for reasons of maintaining the continuity of the bulk electric power supply system.

(2) Equipment failures/system operational actions attributable to the loss of firm system loads for a period in excess of 15 minutes, as described below:

(i) Reports from entities with a previous year recorded peak load of over 3000 MW are required for all such losses of firm loads which total over 300 MW.

(ii) Reports from all other entities are required for all such losses of firm loads which total over 200 MW or 50 percent of the system load being supplied immediately prior to the incident, whichever is less.

(3) Other events or occurrences which result in a continuous interruption for 3 hours or longer to over 50,000 customers, or more than 50 percent of the total customers being served immediately prior to the interruption, whichever is less.

(b) Voltage Reductions or Public Appeals:

(1) Reports are required for any anticipated or actual system voltage reductions of 3 percent or greater for purposes of maintaining the continuity of the bulk electric power supply system.

(2) Reports are required for any issuance of a public appeal to reduce the use of electricity for purposes of maintaining the continuity of the bulk electric power system.

(c) Vulnerabilities that could Impact System Reliability:

(1) Reports are required for any actual or suspected act(s) of physical sabotage (not vandalism) or terrorism directed at an electric power supply system, local or regional, in an attempt to either:

(i) Disrupt or degrade the service reliability of the local or regional bulk electric power supply system, or

(ii) Disrupt, degrade, or deny bulk electric power service to:

(A) A specific facility (industrial, military, governmental, private), or

(B) A specific service (transportation, communications), or

(C) A specific locality (town, city, county).

(2) Reports are required for any abnormal emergency system operating condition(s) or other event(s) which in the judgment of the reporting entity could or would constitute a hazard to maintaining the continuity of the bulk electric power supply system. Examples will be provided in the DOE pamphlet on reporting procedures.

(d) Fuel Supply Emergencies:

(1) Reports are required for any anticipated or existing fuel supply emergency situation which would threaten the continuity of the bulk electric power supply system, such as:

(i) Fuel stocks or hydro project water storage levels are at 50 percent (or less) of normal for that time of the year, and a continued downward trend is projected.

(ii) Unscheduled emergency generation is dispatched causing an abnormal use of a particular fuel type, such that the future supply or stocks of that fuel could reach a level which threatens the reliability or adequacy of electric service.

The emergency situation data shall be supplied to the DOE Emergency Operations Center in accordance with the current DOE pamphlet on reporting procedures. The initial report shall include the utility name; the area affected; the time of occurrence of the initiating event; the duration or an estimate of the likely duration; an estimate of the number of customers and amount of load involved; and whether any known critical services such as hospitals, military installations, pumping stations or air traffic control systems, were or are interrupted. To the extent known or reasonably suspected, the report shall include a description of the events initiating the disturbance. The DOE may require further clarification during or after restoration of service.

If directed by the Director, Office of Energy Emergency Operations in writing and noticed in the Federal Register, a utility or other subject entity experiencing a condition described in §205.351 above shall submit a full report of the technical circumstances surrounding a specific power system disturbance, including the restoration procedures utilized. The report shall be filed at such times as may be directed by the Director, Office of Energy Emergency Operations.

Authority:  Department of Energy Organization Act, Pub. L. 95–91, 91 Stat. 565 (42 U.S.C. 7101). Federal Power Act, Pub. L. 66–280, 41 Stat. 1063 (16 U.S.C. 791(a))

Source:  Sections 205.370 through 205.379 appear at 46 FR 39987, Aug. 6, 1981, unless otherwise noted.

§ 205.370   Applicability.

Sections 202(c) and 202(d) of the Federal Power Act are applicable to any “entity” which owns or operates electric power generation, transmission or distribution facilities. An “entity” is a private or public corporation (utility), a governmental agency, a municipality, a cooperative or a lawful association of the foregoing. Under this section, the DOE has the authority to order the temporary connection of facilities, or the generation or delivery of electricity, which it deems necessary to alleviate an emergency. Such orders shall be effective for the time specified and will be subject to the terms and conditions the DOE specifies. The DOE retains the right to cancel, modify or otherwise change any order, with or without notice, hearing, or report. Requests for action under these regulations will be accepted from any “entity,” State Public Utility Commission, State Energy Agency, or State Governor. Actions under these regulations also may be initiated by the DOE on its own motion. Orders under this authority may be made effective without prior notice.

“Emergency,” as used herein, is defined as an unexpected inadequate supply of electric energy which may result from the unexpected outage or breakdown of facilities for the generation, transmission or distribution of electric power. Such events may be the result of weather conditions, acts of God, or unforeseen occurrences not reasonably within the power of the affected “entity” to prevent. An emergency also can result from a sudden increase in customer demand, an inability to obtain adequate amounts of the necessary fuels to generate electricity, or a regulatory action which prohibits the use of certain electric power supply facilities. Actions under this authority are envisioned as meeting a specific inadequate power supply situation. Extended periods of insufficient power supply as a result of inadequate planning or the failure to construct necessary facilities can result in an emergency as contemplated in these regulations. In such cases, the impacted “entity” will be expected to make firm arrangements to resolve the problem until new facilities become available, so that a continuing emergency order is not needed. Situations where a shortage of electric energy is projected due solely to the failure of parties to agree to terms, conditions or other economic factors relating to service, generally will not be considered as emergencies unless the inability to supply electric service is imminent. Where an electricity outage or service inadequacy qualifies for a section 202(c) order, contractual difficulties alone will not be sufficient to preclude the issuance of an emergency order.

An original and two conformed copies of the applications and reports required under §§205.370 through 205.379 shall be filed with the Division of Power Supply and Reliability, Department of Energy. Copies of all documents also shall be served on:

(a) The Federal Energy Regulatory Commission;

(b) Any State Regulatory Agency having responsibility for service standards, or rates of the “entities” that are affected by the requested order;

(c) Each “entity” suggested as a potential source for the requested emergency assistance;

(d) Any “entity” that may be a potential supplier of transmission services;

(e) All other “entities” not covered under paragraphs (c) and (d) of this section which may be directly affected by the requested order; and

(f) The appropriate Regional Reliability Council.

Every application for an emergency order shall set forth the following information as required. This information shall be considered by the DOE in determining that an emergency exists and in deciding to issue an order pursuant to sections 202(c) and 202(d) of the Federal Power Act.

(a) The exact legal name of the applicant and of all other “entities” named in the application.

(b) The name, title, post office address, and telephone number of the person to whom correspondence in regard to the application shall be addressed.

(c) The political subdivision in which each “entity” named in the application operates, together with a brief description of the area served and the business conducted in each location.

(d) Each application for a section 202(c) order shall include the following baseline data:

(1) Daily peak load and energy requirements for each of the past 30 days and projections for each day of the expected duration of the emergency;

(2) All capacity and energy receipts or deliveries to other electric utilities for each of the past 30 days, indicating the classification for each transaction;

(3) The status of all interruptible customers for each of the past 30 days and the anticipated status of these customers for each day of the expected duration of the emergency, assuming both the granting and the denial of the relief requested herein;

(4) All scheduled capacity and energy receipts or deliveries to other electric utilities for each day of the expected duration of the emergency.

(e) A description of the situation and a discussion of why this is an emergency, including any necessary background information. This should include any contingency plan of the applicant and the current level of implementation.

(f) A showing that adequate electric service to firm customers cannot be maintained without additional power transfers.

(g) A description of any conservation or load reduction actions that have been implemented. A discussion of the achieved or expected results or these actions should be included.

(h) A description of efforts made to obtain additional power through voluntary means and the results of such efforts; and a showing that the potential sources of power and/or transmission services designated pursuant to paragraphs (i) through (k) of this section informed that the applicant believed that an emergency existed within the meaning of §205.371.

(i) A listing of proposed sources and amounts of power necessary from each source to alleviate the emergency and a listing of any other “entities” that may be directly affected by the requested order.

(j) Specific proposals to compensate the supplying “entities” for the emergency services requested and to compensate any transmitting “entities” for services necessary to deliver such power.

(k) A showing that, to the best of the applicant's knowledge, the requested relief will not unreasonably impair the reliability of any “entity” directly affected by the requested order to render adequate service to its customers.

(l) Description of the facilities to be used to transfer the requested emergency service to the applicant's system.

(1) If a temporary interconnection under the provisions of section 202(c) is proposed independently, the following additional information shall be supplied for each such interconnection:

(i) Proposed location;

(ii) Required thermal capacity or power transfer capability of the interconnection;

(iii) Type of emergency services requested, including anticipated duration;

(iv) An electrical one line diagram;

(v) A description of all necessary materials and equipment; and

(vi) The projected length of time necessary to complete the interconnection.

(2) If the requested emergency assistance is to be supplied over existing facilities, the following information shall be supplied for each existing interconnection:

(i) Location;

(ii) Thermal capacity of power transfer capability of interconnection facilities; and

(iii) Type and duration of emergency services requested.

(m) A general or key map on a scale not greater than 100 kilometers to the centimeter showing, in separate colors, the territory serviced by each “entity” named in the application; the location of the facilities to be used for the generation and transmission of the requested emergency service; and all connection points between systems.

(n) An estimate of the construction costs of any proposed temporary facilities and a statement estimating the expected operation and maintenance costs on an annualized basis. (Not required on section 202(d) applications.)

(o) Applicants may be required to furnish such supplemental information as the DOE may deem pertinent.

Each “entity” designated as a potential source of emergency assistance or as a potential supplier of transmission services and which has received a copy of the application under §205.373, shall have three (3) calendar days from the time of receipt of the application to file the information designated below with the DOE. The DOE will grant extensions of the filing period when appropriate. The designated “entities” shall provide an analysis of the impact the requested action would have on its system reliability and its ability to supply its own interruptible and firm customers. The effects of the requested action on the ability to serve firm loads shall be clearly distinguished from the ability to serve contractually interruptible loads. The designated “entity” also may provide other information relevant to the requested action, which is not included in the reliability analysis. Copies of any response shall be provided to the applicant, the Federal Energy Regulatory Commission, any State Regulatory Agency having responsibility for service standards or rates of any “entity” that may be directly involved in the proposed action, and the appropriate Regional Electric Reliability Council. Pursuant to section 202(c) of the Federal Power Act, DOE may issue an emergency order even though a designated “entity” has failed to file a timely response.

An inadequate utility system fuel inventory or energy supply is a matter of managerial and engineering judgment based on such factors as fuels in stock, fuels en route, transportation time, and constraints on available storage facilities. A system may be considered to have an inadequate fuel or energy supply capability when, combined with other conditions, the projected energy deficiency upon the applicant's system without emergency action by the DOE, will equal or exceed 10 percent of the applicant's then normal daily net energy for load, or will cause the applicant to be unable to meet its normal peak load requirements based upon use of all of its otherwise available resources so that it is unable to supply adequate electric service to its ultimate customers. The following conditions will be considered in determining that a system has inadequate fuel or energy supply capability:

(1) System coal stocks are reduced to 30 days (or less) of normal burn days and a continued downward trend in stock is projected;

(2) System residual oil stocks are reduced to 15 days (or less) of normal burn days and a continued downward trend in stocks is projected;

(3) System distillate oil stocks which cannot be replaced by alternate fuels are reduced to 15 days (or less) of normal burn days and a continued downward trend in stocks is projected;

(4) System natural gas deliveries which cannot be replaced by alternate fuels have been or will be reduced 20 percent below normal requirements and no improvement in natural gas deliveries is projected within 30 days;

(5) Delays in nuclear fuel deliveries will extend a scheduled refueling shutdown by more than 30 days; and

(6) Water supplies required for power generation have been reduced to the level where the future adequacy of the power supply may be endangered and no near term improvement in water supplies is projected.

The use of the prescribed criteria does not preclude an applicant from claiming the existence of an emergency when its stocks of fuel or water exceed the amounts and time frames specified above.

The applicant and the generating or transmitting systems from which emergency service is requested are encouraged to utilize the rates and charges contained in approved existing rate schedules or to negotiate mutually satisfactory rates for the proposed transactions. In the event that the DOE determines that an emergency exists under section 202(c), and the “entities” are unable to agree on the rates to be charged, the DOE shall prescribe the conditions of service and refer the rate issues to the Federal Energy Regulatory Commission for determination by that agency in accordance with its standards and procedures.

In addition to the information specified below, the DOE may require additional reports as it deems necessary.

(a) Where the DOE has authorized the temporary connection of transmission facilities, all “entities” whose transmission facilities are thus temporarily interconnected shall report the following information to the DOE within 15 days following completion of the interconnection:

(1) The date the temporary interconnection was completed;

(2) The location of the interconnection;

(3) A description of the interconnection; and

(4) A one-line electric diagram of the interconnection.

(b) Where the DOE orders the transfer of power, the “entity” receiving such service shall report the following information to the DOE by the 10th of each month for the preceding month's activity for as long as such order shall remain in effect:

(1) Amounts of capacity and/or energy received each day;

(2) The name of the supplier;

(3) The name of any “entity” supplying transmission services; and

(4) Preliminary estimates of the associated costs.

(c) Where the DOE has approved the installation of permanent facilities that will be used only during emergencies, any use of such facilities shall be reported to the DOE within 24 hours. Details of such usage shall be furnished as deemed appropriate by the DOE after such notification.

(d) Any substantial change in the information provided under §205.373 shall be promptly reported to the DOE.

[46 FR 39989, Aug. 6, 1981, as amended at 46 FR 63209, Dec. 31, 1981]

Upon the termination of any emergency for the mitigation of which the DOE ordered the construction of temporary facilities, such facilities shall be disconnected and any temporary construction removed or otherwise disposed of, unless application is made as provided in §205.379 for permanent connection for emergency use. This disconnection and removal of temporary facilities shall be accomplished within 30 days of the termination of the emergency unless an extension is granted by the DOE. The DOE shall be notified promptly when such removal of facilities is completed.

Application for DOE approval of a permanent connection for emergency use only shall conform with the requirements in §205.373. However, the baseline data specified in §205.373(d) need not be included in an application made under this section. In addition, the application shall state in full the reasons why such permanent connection for emergency use is in the public interest.

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