The Code of Federal Regulations of the United States of America

sion and order upon the party or parties.

(d) Appeal of a final decision and order issued under this section may be taken in accordance with the provisions of § 205.97: Provided, That no person who failed to make objection to a proposed decision and order as provided in this section may appeal a final decision and order issued in substantially the form proposed: And provided further, That a person making objection to a proposed decision and order may not raise any new grounds on appeal if the final decision and order is issued in substantially the form proposed.

(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) 143 FR 33687, Aug. 1, 1978]

Subpart H-Appeal

$205.100 Purpose and scope.

: (a)(1) This subpart establishes the procedures for the filing of an administrative appeal of DOE actions taken under Subparts B, C, D, E, G, O, or T of this part, Subpart I of Part 212, or actions of the Director of Oil Imports specified in paragraph (a)(2) of this section, and the consideration of such appeal by the DOE. Appeals of orders issued by State Offices shall be in accordance with Subpart R.

(2) Actions of the Director of Oil Imports subject to appeal under this subpart are:

(i) Actions taken erroneously on applications for allocations of imports under Part 213 of this chapter; and

(ii) Denial of refunds pursuant to § 213.35(d) of license fees, whether in whole or in part, theretofore paid by a person.

(b) A person who has appeared before the DOE in connection with a matter arising under Subparts B, C, D, E, G, O, or T of this part, Subpart I of Part 212, or actions of the Director of Oil Imports specified in paragraph

(a)(2) of this section, has not exhausted his administrative remedies until an appeal has been filed under this subpart and an order granting or denying the appeal has been issued.

(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) [40 FR 36557, Aug. 21, 1975, as amended at 41 FR 22343, June 3, 1976; 43 FR 14437, Apr. 6, 1978]

§ 205.101 Who may file.

Any person aggrieved by an order issued by the DOE under Subparts B, C, D, E, G, O, or T of this part, Subpart I of Part 212, or actions of the Director of Oil Imports specified in § 205.100(a)(2) may file an appeal under this subpart.

§ 205.102 What to file.

(a) A person filing under this subpart shall file an "Appeal of Order", which should be clearly labeled as such both on the appeal and on the outside of the envelope in which the appeal is transmitted, and shall be in writing and signed by the person filing the appeal. The appellant shall comply with the general filing requirements stated in § 205.9 in addition to the requirements stated in this subpart.

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

(Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended, Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133, Pub. L. 94-163, and Pub. L. 94-385, Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended, Pub. L. 94-385, Energy Policy and Conservation Act, Pub. L. 94-163, as amended, Pub. L. 94-385; E.O. 11790, 39 FR 23185; Department of Energy Organization Act, Pub. L. 95-91; E.O. 12009, 42 FR 46267) [39 FR 35489, Oct. 1, 1974, as amended at 43 FR 14437, Apr. 6, 1978]

§ 205.103 Where to file.

(a) When the order upon which the appeal is based was issued by the DOE National Office, the appeal shall be filed with the Office of Exceptions and Appeals at the address provided in § 205.12.

(b) When the order upon which the appeal is based was issued by a Regional Office, the appeal shall be filed with that Regional Office 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]

§ 205.104 Notice.

(a) The appellant shall send by United States mail a copy of the appeal and any subsequent amendments or other documents relating to the appeal, or a copy from which confidential information has been deleted in accordance with § 205.09(f), to each person who is reasonably ascertainable by the appeallant as a person who will be aggrieved by the DOE action sought, including those who participated in the prior proceeding. The copy of the appeal shall be accompanied by a statement that the person may submit comments regarding the appeal to the DOE office with which the appeal was filed within 10 days. The appeal filed with the DOE shall include certification to the DOE that the appellant has complied with the requirements of this paragraph and shall include the names and addresses

of each person to whom a copy of the appeal was sent.

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

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

(2) Include with the appeal a description of the persons or class or classes of persons to whom notice was not sent. The DOE may require the appellant 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 appeal will be accepted if filed within 10 days of service of that notice.

(d) Any person submitting written comments to the DOE with respect to an appeal 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 appellant. 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.

§ 205.105 Contents.

(a) The appeal shall contain a concise statement of grounds upon which it is brought and a description of the relief sought. It 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 appeal. If the appeal includes a request for relief based on significantly changed circumstances, there shall be a complete description of the events, acts, or trans

(1) The discovery of material facts that were not known or could not have been known at the time of the prior proceeding;

(2) The discovery of a law, regulation, interpretation, ruling, order or decision on an appeal or an exception that was in effect at the time of the proceeding upon which the order or interpretation is based and which, if such had been made known to DOE, would have been relevant to the proceeding and would have substantially altered the outcome; or

(3) A substantial change in the facts or circumstances upon which an outstanding and continuing order affecting the appellant was issued, which change has occurred during the interval between issuance of the order and the date of the appeal and was caused by forces or circumstances beyond the control of the appellant.

(b) A copy of the order that is the subject of the appeal shall be submitted with the appeal.

(c) The appellant shall state whether to the best of his knowledge the same or a related issue, act or transaction that is the subject of the appeal has been or presently is being considered or investigated by any DOE office, other Federal agency, department or instrumentality; or by a State Office, a state or municipal agency or court, or by any law enforcement agency; including, but not limited to, a consideration or investigation in connection with a DOE proceeding described in this part, other than the proceeding from which the appeal is taken. In addition, the appellant shall state whether contact has been made by the appellant or one acting on his behalf with any person who is employed by the DOE or any State Office subsequent to service of the order that is being appealed with regard to the issue, act or transaction

that is the subject of the appeal; the name of the person contacted; whether the contact was verbal or in writing; the nature and substance of the contact; and the date or dates of the contact. An appellant shall comply with this paragraph in lieu of § 205.9(e).

(d) The appellant shall state whether he requests or intends to request that there be a conference or hearing regarding the appeal. Any request not made at the time the appeal 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.

(Emergency Petroleum Allocation Act of 1973. Pub. L. 93-159, as amended, Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133. Pub. L. 94-163, and Pub. L. 94-385, Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended, Pub. L. 94-385, Energy Policy and Conservation Act, Pub. L. 94-163, as amended. Pub. L. 94-385; E.O. 11790, 39 FR 23185; Department of Energy Organization Act, Pub. L. 95-91; E.O. 12009, 42 FR 46267) [39 FR 35489, Oct. 1, 1974, as amended at 43 FR 14437, Apr. 6, 1978]

§ 205.106 DOE Evaluation.

(a) Processing. (1) The DOE may initiate an investigation of any statement in an appeal and utilize in its evaluation any relevant facts obtained by such investigation. With respect to appeals of actions specified in § 205.100(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 appeal. The DOE may solicit and accept submissions from third persons relevant to any appeal provided that the appellant is afforded an opportunity to respond to all third person submissions. In evaluating an appeal, the DOE may consider any other source of information. The DOE on its own initiative may convene a conference or hearing if, in its discretion, it considers that such conference or hearing will advance its evaluation of the appeal.

(2) If the DOE determines that there is insufficient information upon which to base a decision and if, upon request, the necessary additional in

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formation is not submitted, the DOE may dismiss the appeal with leave to amend within a specified time. If the failure to supply additional information is repeated or willful, the DOE may dismiss the appeal with prejudice. If the appellant fails to provide the notice required by § 205.104, the DOE may dismiss the appeal without prejudice.

(3) Failure to satisfy requirements. (i) If the appellant fails to satisfy the requirements of paragraph (b)(1) of this section, the DOE may issue an order denying the appeal. The order shall state the grounds for the denial and a copy of the order shall be served upon the appellant and any other person who participated in the proceeding.

(ii) The order denying the appeal shall become a final order of the DOE within 10 days of its service upon the appellant, unless within such 10-day period an amendment to the appeal that corrects the deficiencies identified in the order is filed with the Office of Exceptions and Appeals or the appropriate Regional Office.

(iii) Within 10 days of the filing of such amendment, as provided in paragraph (b)(1) of this section, the DOE shall notify the appellant whether the amendment corrects the specified deficiencies. If the amendment does not correct the deficiencies, that notice shall be an order dismissing the appeal as amended. Such order shall be a final order of the DOE of which appellant may seek judicial review.

(b) Criteria. (1) An appeal 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 DOE action was erroneous in fact or in law, or that it was arbitrary or capricious.

(2) The DOE may deny any appeal if the appellant does not establish that— (i) The appeal was filed by a person aggrieved by a DOE action;

(ii) The DOE's action was erroneous in fact or in law; or

(iii) The DOE's action was arbitrary or capricious.

(a) Upon consideration of the appeal and other relevant information received or obtained during the proceeding, the DOE shall enter an appropriate order, which may include the modification of the order that is the subject of the appeal.

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

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

(d) A copy of each order, with such modification as is necessary to insure the confidentiality of information protected from disclosure under 18 U.S.C. 1905 and 5 U.S.C. 552, will be filed in the public docket room described in § 205.15. If such copy contains information that has been claimed by an appellant or other person, to be confidential, notice of the DOE's intention to place a copy in the docket room and an opportunity to respond shall be given to such person no less than five days prior to its placement in such

room.

(Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended, Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133, Pub. L. 94-163, and Pub. L. 94-385, Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended, Pub. L. 94-385, Energy Policy and Conservation Act, Pub. L. 94-163, as amended, Pub. L. 94-385; E.O. 11790, 39 FR 23185; Department of Energy Organization Act, Pub. L. 95-91; E.O. 12009, 42 FR 46267) [39 FR 35489, Oct. 1, 1974, as amended at 43 FR 14437, Apr. 6, 1978]

§ 205.108 Appeal of a remedial order.

The appeal of a remedial order shall be in accordance with the procedures stated in this subpart, except:

(a) The appeal must be filed within 10 days of the service of the remedial order; and

(b) If the appeal is of a remedial order that was issued subsequent to a notice of probable violation that relates to an order or interpretation previously issued by the DOE, with respect to which there was an exhaustion of administrative remedies, no issues will be considered on the current appeal that were raised in that prior proceeding.

(c) If an issue raised on an appeal of a remedial order is also being considered in connection with any other DOE proceeding, the DOE may consolidate such issues and consider them in the appellate proceeding for the remedial order.

§ 205.109 Timeliness.

(a) When the DOE has received all substantive information deemed necessary to process any appeal filed under this subpart, the DOE shall serve notice of that fact upon the appellant and all other persons who received notice of the proceeding pursuant to the provisions of § 205.104; and if the DOE fails to take action on the appeal within 90 days of serving such notice, the appellant may treat the appeal as having been denied in all respects and may seek judicial review thereof.

(b) Notwithstanding the provisions of paragraph (a) of this section, if the DOE fails to take action on the appeal within 120 days of the filing of the appeal, the appellant may treat it as having been denied in all respects and may seek judicial review thereof.

Subpart 1-Stay

§ 205.120 Purpose and scope.

This subpart establishes the procedures for the application for and granting of a stay by the DOE. An application for a stay will only be considered

(a) Incident to or pending an appeal from an order of the DOE;

(b) Incident to an application for an exception from the application of any DOE regulations, rulings, or generally applicable requirements when the stay sought is of the same regulation, ruling or generally applicable require

(a) A person filing under this subpart shall file an "Application for Stay," 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) 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.

§ 205.122 Where to file.

(a) An application for stay of a DOE order incident to an appeal from such order shall be filed with the Office of Exceptions and Appeals or with the appropriate Regional Office at the address provided in § 205.12.

(b) An application for stay of the application of any or all DOE regulations, rulings, or generally applicable requirements incident to an application for an exception therefrom shall be filed with the Office of Exceptions and Appeals or with the appropriate Regional Office as specified in § 205.52 at the address provided in § 205.12.

(c) An application for stay of a DOE order or of the application of any DOE regulations, rulings or generally applicable requirements pending judicial review shall be filed with the office that issued the order of which judicial review is sought.

§ 205.123 Notice.

(a) When administratively feasible, the DOE shall notify each person readily identifiable by the DOE as one who would be aggrieved by the DOE

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