Procedure Act (5 U.S.C. 551, et. seq. (1970)), the FEAA, and the EPCA.

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

§ 205.161 What to file.

(a) Comments in connection with a rulemaking. Any comments filed in connection with a rulemaking shall be filed in accordance with the instructions in the Notice of Proposed Rulemaking published in the FEDERAL REGPISTER. Such comments shall be in writing and signed by the person filing them.

(b) Petition for rulemaking. (1) Any person may at any time file a petition regarding any DOE, regulation or amendment thereto or, by letter, request that a rulemaking proceeding be instituted. Such petition or request shall be signed by the person filing it.

(2) Upon due consideration of a petition for rulemaking, expressly designated as such, the DOE shall either: (i) Institute a rulemaking as proposed or as modified in its discretion; (ii) notify the petitioner in writing that it does not intend to institute a rulemaking as proposed or as modified and stating the reasons therefore; or (iii) notify the petitioner in writing that the matter is under continuing consideration and that no decision can be made at that time because of the inad

equacy of available information,

changing circumstances or other reasons as set forth therein.

§ 205.162 Where to file.

All comments filed in connection with a rulemaking shall be submitted in accordance with the instructions in the Notice of Proposed Rulemaking. Any other petition or request shall be filed with the DOE General Counsel at the address provided in § 205.12.

Subpart M-Conferences, Hearings, and Public Hearings

$ 205.170 Purpose and scope.

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.

§ 205.171 Conferences.

(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.

§ 205.172 Hearings.

(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 dis

cretion 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]

§ 205.173 Public hearings.

(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.

Subpart N [Reserved]

Subpart O-Notice of Probable Violation, Remedial Order, Notice of Proposed Disallowance, and Order of Disallowance

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.

§ 205.191 Notice of probable violation; commencement of enforcement proceedings.

(a) The ERA may begin a proceeding under this subpart by issuing a Notice of Probable Violation if the ERA has reason to believe that a violation has occurred, is continuing or is about to occur.

(b) Within 30 days after the service of a Notice of Probable Violation, the person upon whom the Notice is served may file a reply with the ERA office that issued the Notice of Probable Violation at the address provided in § 205.12. The ERA may extend the 30-day period for good cause shown.

(c) The reply shall be in writing and signed by the person filing it. The reply shall contain a statement of all relevant facts pertaining to the act or transaction that is the subject of the Notice of Probable Violation. The reply shall include a statement of the legal, business and other reasons for the act or transaction; a description of the act or transaction; and a discussion of the pertinent provisions and relevant facts reflected in any documents submitted with the reply. Copies of all relevant contracts, agreements, leases, instruments, and other documents shall be submitted with the reply. When the Notice or Probable Violation pertains to only one step of a larger integrated transaction, the facts regarding the entire transaction shall be submitted. In further proceed

ings regarding this act or transaction, the Office of Hearings and Appeals will decline to consider an issue that was not raised in the reply to the Notice of Probable Violation unless good cause is shown for the failure to raise the issue.

(d) The reply shall include a discussion of the relevant authorities which support the position asserted, including rulings, regulations, interpretations, and previous decisions issued by DOE or its predecessor agencies.

(e) The reply should indicate whether the person requests an informal conference regarding the notice. A request for a conference must be in writing.

(f) If a person has not filed a reply with the ERA within the 30-day or other period authorized for reply, the person shall be deemed to have admitted the accuracy of the factual allegations and legal conclusions stated in the Notice of Probable Violation, and the ERA may proceed to issue a Proposed Remedial Order in accordance with § 205.192.

(g) If the ERA finds, during or after the 30-day or other period authorized for reply, that no violation has occurred, is continuing, or is about to occur, or that for any reason the issuance of a Proposed Remedial Order would not be appropriate, it shall rescind the Notice of Probable Violation and inform the person to whom the Notice was issued of the rescission.

§ 205.192 Proposed remedial order.

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

§ 205.192A Burden of Proof.

(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.

§ 205.193 Notice of Objection.

(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.

§ 205.193A Submission of ERA Supplemental Information.

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.

§ 205.194 Participants; Official Service List.

(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