(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.

§ 205.199D Interim Remedial Order for Immediate Compliance.

(a) Notwithstanding the provisions of §§ 205.191 through 205.199C, the DOE may issue an Interim Remedial Order for Immediate Compliance, which shall be effective upon issuance and until rescinded or suspended, if it finds:

(1) There is a strong probability that a violation has occurred, is continuing or is about to occur;

(2) Irreparable harm will occur unless the violation is remedied immediately; and

(3) The public interest requires the avoidance of such irreparable harm through immediate compliance and waiver of the procedures afforded under §§ 205.191 through 205.199C.

(b) An Interim Remedial Order for Immediate Compliance shall be served promptly upon the person against whom such Order is issued by personal service, telex or telegram, with a copy served by registered or certified mail. The copy shall contain a written statement of the relevant facts and the legal basis for the Remedial Order for Immediate Compliance, including the

findings required by paragraph (a) of this section.

(c) The DOE may rescind or suspend an Interim Remedial Order for Immediate Compliance if it appears that the criteria set forth in paragraph (a) of this section are no longer satisfied. When appropriate, however, such a suspension or rescission may be accompanied by a Notice of Probable Violation or Proposed Remedial Order issued under § 205.191 or § 205.192.

(d) If at any time in the course of a proceeding commenced by a Notice of Probable Violation or Proposed Remedial Order the criteria set forth in paragraph (a) of the section are satisfied, the DOE may issue an Interim Remedial Order for Immediate Compliance, even if the 30-day period for submitting a reply to that document has not expired.

(e) Any person who is aggrieved by an Interim Remedial Order for Immediate Compliance may contest the basis for the Order within 10 days after the issuance of the Interim Order by filing a Notice of Objection which meets the requirements of § 205.193. The person objecting to the issuance of the Interim Remedial Order for Immediate Compliance shall follow the procedures specified in §§ 205.192A through 205.199C to establish that the Interim Order is erroneous in fact or law or is arbitrary or capricious.

(f) Any aggrieved person who fails to file a timely Notice of Objection to the issuance of an Interim Remedial Order may no longer object to issuance of the Interim Order in final form. Under those circumstances, the Interim Order shall promptly be issued as a final Order of the DOE.

(g) After considering all information received during a proceeding convened pursuant to a Notice of Objection described in paragraph (e) of this section, the Director of the Office of Hearings and Appeals or his designee shall determine whether the Interim Order should be made permanent, should be modified, or should be rescinded. The general procedures in §§ 205.192 through 205.199C shall apply to any such determination.

(h)(1) Any person aggrieved by an Interim Order for Immediate compli

ance may file an Application for Temporary Stay or an Application for Stay of that Order with the Office of Hearings and Appeals. The Office of Hearings and Appeals shall decide an Application for Temporary Stay within two working days after receipt and an Application for Stay within 10 working days after receipt of the application.

(2) A person whose application for a Stay of an Interim Remedial Order is denied may appeal that denial to the Federal Energy Regulatory Commission. The Office of Hearings and Appeals may, on a case by case basis, set reasonable time limits for the Commission to complete action on any such appeal.

(3) After reaching a decision on an appeal involving an Application for Stay, the Federal Energy Regulatory Commission shall refer the matter back to the Office of Hearings and Appeals for proceedings on the merits of the Interim Remedial Order pursuant to paragraphs (e) through (g) of this section.

(i)(1) An administrative appeal to the Federal Energy Regulatory Commission from a Remedial Order for Immediate Compliance issued pursuant to paragraph (g) or this section must be filed within 30 days after service of the Order.

(2) A person who wishes to contest a Remedial Order for Immediate Compliance shall notify the Office of Hearings and Appeals within 30 days after service of the Order that he wishes to contest the Order, and the procedures of § 205.199C (c) and (d) shall apply to the appeal.

(3) In order to exhaust administrative remedies, a person must file an Appeal pursuant to the procedures set forth in this section and await an Order granting or denying the Appeal. § 205.199E Notice of Proposed Disallowance, Proposed Order of Disallowance, and Order of Disallowance.

(a) The ERA shall begin a proceeding under this section by issuing a Notice of Proposed Disallowance pursuant to the provisions of Parts 205 and 212 of this chapter.

(b) Within 30 days after service, the person upon whom the Notice of Pro

posed Disallowance is served may file a reply with the ERA office that issued the Notice. The ERA may extend the 30-day period for good cause shown.

(c) The reply shall set forth all relevant facts and law pertaining to the matter that is the subject of the Notice and be signed by the person filing it. In further proceedings 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 Disallowance unless good cause is shown for the failure to raise the issue.

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

(e) A request for a conference regarding the Notice should be included in the reply.

(f) If a reply has not been filed with the ERA within the 30-day or extended period provided, the recipient shall be deemed to admit the accuracy of the factual allegations and legal conclusions stated in the Notice of Proposed Disallowance, and the Notice shall become a Proposed Order of Disallowance.

(g) After consideration of any timely reply filed, the ERA may adopt, modify, or rescind the Notice of Proposed Disallowance and issue a Proposed Order of Disallowance. The Proposed Order shall set forth the relevant facts and legal bases for the conclusions reached therein.

(h) The procedures specified in §§ 205.192 through 205.199C shall be applicable to Proposed Orders of Disallowance, and shall govern the issuance of Orders of Disallowance and Appeals from Orders of Disallowance. (i) An Order of Disallowance shall be effective upon issuance.

§ 205.199F Ex Parte Communications.

(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 re

spect 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.

§ 205.199H Actions Not Subject to Administrative Appeal.

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. § 205.1991 Remedies.

(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 reIceived 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.

§ 205.199J Consent Order.

(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 § 205.1991 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 ac

(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.

Subpart P-Investigations, Violations, Sanctions, and Judicial Actions

§ 205.200 Purpose and scope.

This subpart establishes the procedures relating to investigations, violations, sanctions, and judicial actions under this chapter, except that the provisions of this subpart shall not apply with respect to sanctions under Part 209, and with respect to investigations, violations, sanctions, and judicial actions under Part 213.

[41 FR 36647, Aug. 31, 1976]

§ 205.201 Investigations.

(a) The DOE may initiate and conduct investigations relating to the scope, nature and extent of compliance by any person with the rules, regulations or statutes of the DOE or any order, court decree or agency action relating thereto.

(b) Any duly designated and authorized representative of DOE has the authority to conduct an investigation and to take such action as he deems necessary and appropriate to the conduct of the investigation including any action pursuant to § 205.8.

(c) There are no parties, as that term is used in adjudicative proceedings, in an investigation under this subpart, and no person may intervene or participate as a matter of right in any investigation under this subpart.

(d) Any person may request the DOE to initiate an investigation pursuant to paragraph (a) of this section. A request for an investigation shall set forth the subject matter to be investigated as fully as possible and include supporting documentation and information. No particular forms or procedures are required.

(e) Any person who is requested to furnish documentary evidence or testimony in an investigation, upon written request, shall be informed of the general purpose of the investigation.

(f) DOE shall not disclose information or documents that are obtained during any investigation unless (1) DOE directs or authorizes the public disclosure of the investigation; (2) the information or documents are a matter of public record; or (3) disclosure is not precluded by the Freedom of Information Act, 5 U.S.C. 552 and 10 CFR Part 1004. A request for confidential treatment of information for purposes of the Freedom of Information Act shall not prevent disclosure by DOE if disclosure is determined to be in the public interest and otherwise permitted by law.

(g) During the course of an investigation any person may submit at any time any document, statement of facts or memorandum of law for the purpose of explaining the person's position or furnish evidence which the person considers relevant to a matter under investigation.

(h) If facts disclosed by an investigation indicate that further action is unnecessary or unwarranted, the investigative file may be closed without prejudice to further investigation by the DOE at any time that circumstances so warrant.

(Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended, 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, and Pub. L. 95-91; Energy Supply and Environmental Coordination Act of 1974, Pub. L. 93-319, as amended; Energy Policy and Conservation Act, Pub. L.