mation is not submitted, the DOE may dismiss the application without prejudice. If the failure to supply additional information is repeated or willful, the DOE may dismiss the application with prejudice.

(b) Criteria. An application for adjustment will only be granted or validated in the circumstances permitted or required by Part 211 of this chapter. In considering such an application, the DOE will apply the criteria stated in section 4(b) of the EPAA.

§ 205.26 Decision and order.

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

(b) The order shall include a brief written statement summarizing the factual and legal basis upon which the order was issued. The order shall provide that any person aggrieved thereby may file an appeal with the DOE Office of Exceptions and Appeals or the appropriate Regional Office in accordance with Subpart H of this part.

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

(d) Any order issued pursuant to this subpart, unless otherwise specified, shall be effective for the duration of the Mandatory Petroleum Allocation Program, according to its terms.

(e) Notwithstanding paragraph (d) of this section, any order issued pursuant to this subpart prior to December 31, 1974, which order specifies a termination date of December 31, 1974, shall be effective for the duration of the Mandatory Petroleum Allocation Program.

(f) Any effect of paragraph (e) of this section upon any order issued pursuant to this subpart prior to December 31, 1974 shall be deemed to be an DOE order issued under this subpart, which may be appealed by filing an appeal with the DOE Office of Exceptions and Appeals or the appropriate Regional Office in accordance with the provisions of Subpart H of this part.

[39 FR 35489, Oct. 1, 1974, as amended at 39 FR 44031, Dec. 20, 1974]

§ 205.27 Timeliness.

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

§ 205.28 Appeal.

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

§ 205.29 Temporary adjustment.

(a) In certain circumstances and upon application pursuant to the provisions of § 211.12(h), the DOE may issue an appropriate temporary adjustment order to wholesale purchaserconsumers and end-users which apply for adjustments pursuant to § 211.12(h). A temporary adjustment order may be issued only when it is not feasible to issue an adjustment order that conforms to the notice requirements of § 205.23 of this subpart. A temporary adjustment order shall have a duration of no longer than ninety (90) days and shall terminate at the end of a period corresponding to a base period. Such an order shall be a one-time order, and it may not be extended by issuance of another temporary adjustment order. A permanent adjustment order may subsequently be granted on the basis of the original application in accordance with the provisions of this subpart.

(b) A temporary adjustment order shall conform to the requirements of § 205.25 of this subpart and shall be issued only upon a finding that circumstances do not permit issuance of

§ 205.31 What to file.

(a) A person filing under this subpart shall file an “Application for Assignment" or an "Application for Temporary Assignment" as provided in § 205.39, which should be clearly labeled as such both on the application and on the outside of the envelope in which the application is transmitted, and shall be in writing and signed by the person filing the application. The applicant shall comply with the general filing requirements stated in § 205.9 in addition to the requirements stated in this subpart.

(b) An application shall be the appropriate DOE form. If such form is not available, the application shall consist of the information required in § 205.34(b).

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

§ 205.32 Where to file.

(a) Except as provided in paragraph (b), all applications for assignment shall be filed with the office specified in § 205.13, at the address provided in § 205.12.

(b) All applications for assignment by a new end-user who cannot agree on an allocation requirement with his supplier or who cannot locate a supplier shall be filed with the appropriate State Office.

§ 205.33 Notice.

(a) The DOE shall serve notice on any person readily identifiable by the DOE as one who will be aggrieved by the DOE action and may serve notice on any other person that written comments regarding the application for assignment will be accepted if filed within 10 days of service of the notice; or may determine that notice should be published in the FEDERAL REGISTER.

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

§ 205.34 Contents.

(a) The application shall be the appropriate DOE form, which shall be completed in accordance with the instructions that accompany the form. If there is not a current DOE form appropriate or available, the applicant shall file an application that contains the information required by paragraph (b) of this section.

(b) The application shall contain a full and complete statement of all relevant facts pertaining to the circumstances, act or transaction that is the subject of the application and to the DOE action sought. Such facts shall include the names and addresses of all affected persons (if reasonably ascertainable); a complete statement of the business or other reasons that justify the act or transaction; a description of the acts or transactions that would be affected by the requested action; and a full discussion of the pertinent provisions and facts contained in any relevant documents. Copies of all con

tracts, agreements, leases, instruments, and other documents relevant to the application shall be submitted to the DOE upon its request. When the application pertains to only one step of a larger integrated transaction, the facts, circumstances, and other relevant information pertaining to the entire transaction shall be submitted. In addition to such information, the applicant shall include the following information:

(1) Description of applicant's business;

(2) The anticipated use of the allocated product in applicant's operation, including present and anticipated needs of priority customers, if applicable;

(3) An estimate of the anticipated effect that denial of the requested assignment would have on the applicant's operation;

(4) A description of the extent to which the applicant has investigated the possibilities of converting to an alternative fuel or product, and the applicant's conclusion as to the feasibility of making such conversion;

(5) A description of applicant's efforts to find other suppliers;

(6) The identification of any previous assignment order relevant to the present application that has been issued to the applicant or to any person that controls or is controlled by the applicant.

(7) A statement as to whether the applicant had no supplier during the requisite base period, or as to whether the applicant's base period supplier or new supplier is unable to supply his requirements;

(8) The identification of any persons who will be aggrieved by the DOE action sought, including potential suppliers; and

(9) Wholesale purchasers shall provide documentary evidence justifying its proposed base period volume as normal and reasonable for its intended

use.

§ 205.35 DOE evaluation.

(a) Processing. (1) The DOE may initiate an investigation of any statement in an application and utilize in its evaluation any relevant facts obtained by such investigation, the DOE may solic

it and accept submissions from third persons relevant to any application provided that the applicant is afforded an opportunity to respond to all third person submissions. In evaluating an application, 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 a conference will advance its evaluation of the application.

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

(b) Criteria. (1) An application for assignment may be granted in the situations specified in Part 211 of this chapter when such assignment will assure an allocation that to the maximum extent possible provides for—

(i) The protection of public health, safety, and welfare, (including maintenance of residential heating, such as individual homes, apartments, and similar occupied dwelling units) and the national defense;

(ii) Maintenance of all public services (including facilities and services provided by municipally, cooperatively, or investor owned utilities or by any State or local government or authority, and including transportation facilities and ser-vices which serve the public at large);

(iii) Maintenance of agricultural operations, including farming, ranching, dairy, and fishing activities, and services directly related thereto;

(iv) Preservation of an economically sound and competitive petroleum industry; including the priority needs to restore and foster competition in the producing, refining, distribution, marketing, and petrochemical sectors of such industry, and to preserve the competitive viability of independent refiners, small refiners, non-branded independent marketers, and branded independent marketers;

(v) The allocation of suitable types, grades, and quality of crude oil to refineries in the United States to permit

such refineries to operate at full capacity;

(vi) Equitable distribution of crude oil, residual fuel oil, and refined petroleum products at equitable prices among all regions and areas of the United States and sectors of the petroleum industry, including independent refiners, small refiners, non-branded independent marketers, branded independent marketers, and among all users;

(vii) Allocation of residual fuel oil and refined petroleum products in such amounts and in such manner as may be necessary for the maintenance of, exploration for, and production or extraction of, fuels, and for required transportation related thereto;

(viii) Economic efficiency; and (ix) Minimization of economic distortion, inflexibility, and unnecessary interference with market mechanisms.

(2) In the assignment of a base period volume to a wholesale purchaser, as defined in § 211.51, the DOE also shall consider the criteria provided in Part 211 of this chapter and DOE guidelines, rulings and decisions on appeal.

(3) In connection with the assignment of a supplier or a base period volume to a person planning to construct a synthetic natural gas plant after May 1, 1974, or to expand an existing one, the DOE also shall consider the criteria provided in § 211.29 of this chapter and DOE guidelines, rulings and decisions on appeal.

(4) In selecting a supplier for an assignment, the DOE shall consider the goal of equalizing allocation fractions among suppliers and the capability of the supplier to provide the product to an applicant on short notice.

(c) If an assignment is sought in connection with circumstances not referred to in Part 211 of this chapter, application for an exception should be filed with the DOE Office of Exceptions and Appeals at the address provided in § 205.12.

§ 205.36 Decision and order.

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

periods corresponding to base periods to which it applies, and shall be effective for the duration of the Mandatory Petroleum Allocation Program, according to its terms, unless a duration for a lesser period is specified therein.

(b) The order shall include a brief written statement summarizing the factual and legal basis upon which the order was issued. The order shall provide that any person aggrieved thereby may file an appeal with the DOE Office of Exceptions and Appeals or the appropriate Regional Office in accordance with Subpart H of this part.

(c) Prior to issuance of an assignment order, the DOE shall contact the proposed supplier for the purpose of determining the accuracy of the facts upon which it intends to base the proposed assignment order and the impact such order may have upon the proposed supplier's operations, and to give the supplier a reasonable opportunity to comment on the proposed order. To the extent a proposed supplier's comments present facts other information that materially differs from those in the application, the applicant shall be advised and given an opportunity to respond verbally. The notice and comment provided herein may be in writing if time permits.

or

(d) The DOE shall serve a copy of the order upon the person who thereby will be directed to supply the product or to establish a base period volume, the applicant and upon any other person readily identifiable by the DOE as one who is aggrieved by said order.

(e) Notwithstanding paragraph (a) of this section, any order issued pursuant to this subpart prior to December 31, 1974, other than a temporary assignment order under § 205.39, which order specifies a termination date of December 31, 1974, shall be deemed effective for the duration of the Mandatory Petroleum Allocation Program.

(f) Any effect of paragraph (e) of this section upon any order issued pursuant to this subpart prior to December 31, 1974 shall be deemed to be an DOE order issued under this subpart, which may be appealed by filing an appeal with the DOE Office of Exceptions and Appeals or the appropriate Regional Office in accordance with

the provisions of Subpart H of this part.

[39 FR 35489, Oct. 1, 1974, as amended at 39 FR 44031, Dec. 20, 1974]

§ 205.37 Timeliness.

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

(b) Notwithstanding the provisions of paragraph (a) of this section, if the DOE fails to take action on any application recommended for approval by a State Office pursuant to Subpart Q of this part within 30 days of receipt of such application by the DOE, the applicant may treat the application as having been denied in all respects and may appeal therefrom as provided in this subpart.

§ 205.38 Appeal.

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

(b) If an appeal is filed in connection with the issuance of an temporary assignment order in accordance with § 205.39,

and subsequent to such appeal an assignment order from which said person also appeals is issued to the recipient of the temporary assignment order, the appeal from both the temporary assignment order and the subsequent assignment order shall be consolidated and considered in the same appellate proceeding.

§ 205.39 Temporary assignment.

(a) In certain circumstances and upon application, the DOE may issue a temporary assignment order to certain wholesale purchaser-resellers and

to wholesale purchaser-consumers or end-users with a requirement for an allocated product for which there is not a state set-aside, or who, in accordance with Part 211 of this chapter, must submit applications for assignment to the National DOE, or who file an application for assignment of supplier pursuant to § 211.12(h). Those end-users, wholesale purchaser-consumers and wholesale purchaser-resellers requesting an assignment to meet the needs of end-users and wholesale purchaser-consumers experiencing hardship or emergency requirements with respect to products for which there is a state set-aside (products in the state set-aside are identified in § 211.17(a)) shall apply to the appropriate State Office for an assignment from the state set-aside system, in accordance with Subpart Q of this part.

The ordering of a temporary assignment shall occur only in dire circumstances and when it is not feasible to issue an assignment order that conforms to the DOE guidelines, including, but not limited to, the requirement that assignment orders for a month be issued, to the maximum extent possible, by the 15th of the preceding month. Temporary assignments are intended to be issued when circumstances do not permit the issuance of an assignment order in the normal time period, i.e., prior to the 15th day of the month preceding the month for which there is the requirement for the assignment. Thus, a temporary assignment is an "off-phase" order. The "Application for Temporary Assignment" or "Application for Assignment" pursuant to § 211.12(h) is to conform to the requirements of § 205.34, except that such requirements may be waived in whole or in part by the DOE for good cause shown. The application shall fully describe why the assignment must be made out of phase with the normal issuance of assignment orders. A temporary assignment order shall have a duration of not longer than 60 days, except that a temporary assignment order issued upon an application pursuant to § 211.12(h) may have a duration of up to 90 days and shall terminate at the end of a period correspond