ing to base period. It is intended that a temporary assignment order shall be a one-time order that pertains to a specific situation, and it may not be extended by issuance of another temporary assignment order. If an applicant other than an applicant for assignment pursuant to § 211.12(h) anticipates the requirement for an assignment of longer than 60 days duration, he shall submit contemporaneously with the application for a temporary assignment, or as soon thereafter as feasible, an "Application for Assignment."

(b) A temporary assignment order shall conform to the requirements of § 205.35 and shall be issued only upon a finding that circumstances do not permit issuance of an assignment onphase with the processing of assignment orders in accordance with DOE guidelines, which finding shall be stated in the order.

(c) Notwithstanding the provisions of § 205.35(b)(3), § 211.29 and Special Rule No. 1 issued thereunder, upon application by a synthetic natural gas manufacturer and upon a finding that circumstances do not permit the issuance of an assignment order in accordance with the criteria set forth in § 211.29 and Special Rule No. 1 issued thereunder because additional testing and/or data are required in order to determine if those criteria are met, which finding shall be stated in the order, a temporary assignment order may be issued. Notwithstanding the provisions of paragraph (a) of this section, a temporary assignment order issued on behalf of a synthetic natural gas manufacturer may be extended for a period not to exceed 30 days upon a finding that such extension is required in order to complete the testing and/ or collection of data which occasioned the initial order, which finding shall be stated in the extension. No more than one such extension may be issued respecting a given temporary assignment and in no event shall a temporary assignment order pertaining to a specific situation cover a total period of more than 90 days.

(d) The supplier selected shall be given notice of the temporary assignment order at least 24 hours in advance of its issuance. Notwithstanding

the provision for notice to third persons in § 205.33, the DOE may make a decision on an application for temporary assignment prior to the receipt of written comments.

(e) A temporary assignment order shall be appealable in accordance with § 205.38.

[39 FR 35489, Oct. 1, 1974, as amended at 39 FR 36571, Oct. 11, 1974; 40 FR 4771, Jan. 31, 1975]

Subpart D-Exception

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: Sections 205.56 through 205.69E issued at 44 FR 16887, Mar. 20, 1979, unless otherwise noted.

§ 205.50 Purpose and scope.

(a)(1) This subpart establishes the procedures for applying for an exception from a regulation, ruling or generally applicable requirement based on an assertion of serious hardship or gross inequity and for the consideration of such application by the DOE, except that applications for an exception from a regulation, ruling, or generally applicable requirement under Part 213 shall be based on the provisions of paragraph (a)(2) of this section.

(2)(i) The DOE, in considering an application for an exception by a person affected by Part 213, may, without regard to the limits of the maximum levels of imports established in section 2 of Proclamation No. 3279:

(A) Modify on grounds of exceptional hardship, any import allocation made to any person under Part 213 of this chapter;

(B) Grant allocations of imports of crude oil and unfinished oils in special circumstances to persons with importing histories who do not qualify for al

locations under Part 213 of this chapter;

(C) Grant allocations of imports of finished products on grounds of exceptional hardship;

(D) Grant allocations of imports of crude oil, unfinished oils and finished products to independent refiners or established independent marketers who are experiencing exceptional hardship, or in emergencies in order to assure, insofar as practicable, that adequate supplies are available; and

(E) Grant refunds, in whole or in part, of license fees paid by persons to whom licenses were issued for imports which they subsequently became entitled to make on a fee-exempt basis.

(ii) In its consideration of any application filed pursuant to this paragraph (a)(2), which is based on a claim of exceptional hardship in accordance with paragraphs (a)(2)(i)(A), (C), and (D) of this section, the DOE shall, subject to the provisions of § 213.26, follow the guidelines set forth in Appendix II of this subpart.

(iii) Licenses issued pursuant to allocations made under this subparagraph shall be exempt from license fees prescribed in paragraph (c) of § 213.35 of this chapter.

(b) A request for an interpretation or other specific action which includes, or could be construed to include, an application for an exception may be treated solely as a request for an interpretation or other action, and processed as such by DOE.

(c) The filing of an application for an exception shall not constitute grounds for non-compliance with the requirements of the regulation, ruling or generally applicable requirement from which an exception is sought, unless a stay has been issued in accordance with Subpart I of this part.

[39 FR 35489, Oct. 1, 1974, as amended at 40 FR 36555, Aug. 21, 1975; 41 FR 2227, Jan. 15, 1976; 41 FR 22343, June 3, 1976]

the person filing the application. The applicant shall comply with the general filing requirements stated in § 205.9 in addition to the requirements stated in this subpart.

(b) If the applicant wishes to claim confidential treatment for any information contained in the application or other documents submitted prior to the issuance of a Proposed Decision and Order, the procedures set out in § 205.9(f) shall apply. Section 205.61 governs claims for the confidential treatment of information after the issuance of a Proposed Decision and Order. All documents shall be filed in duplicate, unless they contain confidential information, in which case they must be filed in triplicate, with all confidential information deleted from two of the copies.

[39 FR 35489, Oct. 1, 1974, as amended at 44 FR 16890, Mar. 20, 1979]

§ 205.52 Where to file.

(a) Except as provided in paragraph (b) of this section, all applications for exception shall be filed with the Office of Exceptions and Appeals at the address provided in § 205.12.

(b)(1) All applications for exception to Part 211 that relate to adjustments to base period use of motor gasoline, middle distillates (except for use by electric utilities and as bunker fuel), residual fuel oil (except for use by electric utilities and as bunker fuel), or propane, shall be filed with the appropriate regional office at the address provided in § 205.12.

(2) All applications for exception to Part 212 that relate to the retail sale of motor gasoline, heating oil, diesel fuel, or propane shall be filed with the appropriate regional office at the address provided in § 205.12.

(3) All applications for exemption to § 213.15 by persons seeking to import residual fuel oil into District I in order to satisfy contractual obligations or other projected needs for the allocation period May 1, 1977, through April 30, 1978, shall be filed with the Director of Oil Imports in accordance with Special Guideline I in Appendix II of this subpart.

[39 FR 35489, Oct. 1, 1974, as amended at 39 FR 36854, Oct. 15, 1974; 42 FR 54256, Oct. 5, 1977]

$ 205.53 Notice.

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

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

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

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

The DOE may require the applicant to provide additional or alternative notice, or may determine that the notice required by paragraph (a) of this section is not impracticable, or may determine that notice should be published in the FEDERAL REGISTER.

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

(d) Any person submitting written comments to the DOE with respect to an application filed under this subpart shall send a copy of the comments, or

a copy from which confidential information has been deleted in accordance with § 205.9(f), to the applicant. The person shall certify to the DOE that he 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.

(e) At regular intervals, the DOE shall publish a list of all persons who have applied for an exception under this subpart, with a brief description of the factual situation and the relief requested.

§ 205.54 Contents.

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

(b) The applicant shall state whether he requests or intends to request that there be a conference or hearing regarding the application. Any request not made at the time the application is filed shall be made as soon thereafter as possible, to insure that the conference or hearing is held when it will be most beneficial. The request and the DOE's determination regarding it shall be made in accordance with Subpart M of this part.

(c) The application 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 action sought therein.

(d) The application shall specify the exact nature and extent of the relief requested.

(e) Applications for exceptions to be considered pursuant to § 205.50(a)(2) shall include with the information furnished pursuant to this section, the information specified in the appendix to this subpart.

[39 FR 35489, Oct. 1, 1974, as amended at 40 FR 36555, Aug. 21, 1975]

$ 205.55 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. With respect to applications to be considered pursuant to § 205.50(a)(2), the Office of Exceptions and Appeals shall forward to the Director of Oil Imports copies of all submissions to it, and shall provide the Director opportunity to comment on the application. The DOE may solicit 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 hearing or conference, if, in its discretion, it considers that such hearing or conference will advance its evaluation of the application.

(b) Criteria. (1) The DOE shall only consider an application for an exception when it determines that a more appropriate proceeding is not provided by this part.

(2) An application for an exception may be granted to alleviate or prevent serious hardship or gross inequity, except that an application for an exception by a person affected by Part 213 shall, in accordance with Proclamation No. 3279, as amended, be evaluated in light of the criteria specified in § 205.50(a)(2).

(3) An application for an exception shall be decided in a manner that is, to the extent possible, consistent with the disposition of previous applications for exception.

(4) With regard to an exception from the provisions of Part 215 of this chapter, the criteria shall be those provided in such part.

[39 FR 35489, Oct. 1, 1974, as amended at 40 FR 36555, Aug. 21, 1975]

§ 205.56 Issuance of Proposed Decision and Order.

(a) After considering the submissions of the parties and other relevant information in the record of the proceeding, the Office of Hearings and Appeals ordinarily shall issue a Proposed Decision and Order with respect to the Application for Exception. The decision shall include a written statement of reasons setting forth the facts and law supporting the proposed order.

(b) The DOE shall serve a copy of the Proposed Decision and Order upon the applicant and, after modification to ensure the confidentiality of information protected from disclosure under 18 U.S.C. 1905 and 5 U.S.C. 552, on every person who submitted written comments in the prior proceeding or is known to have a direct and distinctive interest in the proceeding. A copy of the Proposed Decision and Order shall also be placed in the Public Docket Room of the Office of Hearings and Appeals.

$ 205.57 Publication of Proposed Decision and Order.

Except as provided in § 205.69C, the Office of Hearings and Appeals shall publish notice of issuance of a Proposed Decision and Order in the FEDERAL REGISTER. The notice shall specify the person to whom the Proposed Decision and Order was issued and the person's location. The notice shall also describe in general terms whether or not relief has been granted, the nature and time period of any proposed relief, and the products and geographical area involved. The notice shall state that any person wishing to participate in further proceedings involving the matter must file either a Notice of Objection or a Notice of Intent to Participate within ten days after service. Persons who have not been served with the Proposed Decision and Order shall be deemed to have been served three

days after the required publication in the FEDERAL REGISTER.

§ 205.58 Notice of Objection.

(a) Any person who would be aggrieved by the issuance of the Proposed Decision and Order in final form may file a Notice of Objection. A Notice of Objection shall be filed induplicate within 10 days after service of the Proposed Decision and Order and shall contain: (1) A brief statement describing the manner in which the person filing the Notice would be adversely affected should the proposed order become final, (2) a statement that the person intends to file a Statement of Objections in accordance with $205.62, (3) a certification of the names and addresses of all persons served with the notice, and (4) a certification that the requirements of paragraph (c) of this section have been met. This Notice is intended to be brief and should not contain any confidential information. The DOE shall place a copy of the Notice in the Public Docket Room of the Office of Hearings and Appeals.

(b) An aggrieved party who fails to file a timely Notice of Objection shall be deemed to consent to the issuance of the proposed order as a final order and shall also be deemed to waive all appeal rights.

(c) A person filing a Notice of Objection shall serve a copy of the Notice on every other person who participated in prior proceedings through the submission of written comments.

(d) If no person files a timely Notice of Objection or if no person files a timely Statement of Objections, the Office of Hearings and Appeals may issue the Proposed Decision and Order in final form without conducting any further proceedings in the matter.

§ 205.59 Notice of Intent to Participate.

(a) Any person who would not be aggrieved by the issuance of the Proposed Decision and Order in final form but who nevertheless wishes to participate in any further proceedings in the matter must file a Notice of Intent to Participate within 10 days after service of the Proposed Decision and Order.

(b) A Notice of Intent to Participate should briefly state the person's interest in the exception proceeding and the particular aspects of the proceeding (e.g., oral argument, submission of briefs, or discovery) in which the person wishes to participate actively.

(c) The Office of Hearings and Appeals may request any person filing a Notice of Intent to Participate to file additional information describing in detail the person's interest in the proceeding and specifying the reasons why the person's participation in one more stages of the proceeding would substantially contribute to the resolution of the issues involved. The request shall specify the time period within which a reply must be filed.

or

(d) After considering a Notice submitted pursuant to paragraph (b) of this section the Office of Hearings and Appeals may determine that a person is not a proper party or participant in the proceeding or that its participation shall be limited.

(e) Persons with similar interests may be ordered to file a plan indicating how their participation can be coordinated in the interest of fair and efficient proceedings. Such plans ordinarily must be filed within ten days of receipt of an order that they be filed. If a requested plan is inadequate or untimely, the Office of Hearings and Appeals may provide for lead counsel or for a common representative in appropriate cases. In making determinations under this section, the Office of Hearings and Appeals shall consider the interest of persons in having representatives of their own choosing, the need for an expeditious resolution of the issues, the complexity of the issues, the number of persons involved and the degree of similarity of the interests of the persons seeking to participate.

(f) The purpose of a Notice of Intent to Participate is to express the desire of the person filing the document to play an active role in one or more aspects of a proceeding to resolve arguments presented in Statements of Objections. Consequently, if no Statements of Objections are filed in a proceeding, it is likely that the Proposed Decision and Order will be issued in final form without further proceed