94-163, as amended, Pub. L. 94-385, and Pub. L. 95-70; Department of Energy Organization Act, Pub. L. 95-91; E.O. 11790, 39 FR 23185; E.O. 12009, 42 FR 46267) [44 FR 23202, Apr. 19, 1979]

§ 205.202 Violations.

Any practice that circumvents or contravenes or results in a circumvention or contravention of the requirements of any provision of this chapter or any order issued pursuant thereto is a violation of the DOE regulations stated in this chapter.

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

§ 205.203 Sanctions.

(a) General. Any person who violates any provision of this chapter or any order issued pursuant thereto shall be subject to penalties and sanctions as provided herein.

(1) The provisions herein for penalties and sanctions shall be deemed cumulative and not mutually exclusive.

(2) Each day that a violation of the provisions of this chapter or any order issued pursuant thereto continues shall be deemed to constitute a separate violation within the meaning of the provisions of this chapter relating to criminal fines and civil penalties.

(b) Civil Penalties. (1) Any person who violates any provision of the regulation issued under authority of the Emergency Petroleum Allocation Act of 1973, as amended, or any order issued pursuant thereto shall be subject to a civil penalty:

(i) With respect to activities relating to the production, distribution or refining of crude oil, of not more than $20,000 for each violation;

(ii) With respect to activities relating to the distribution of residual fuel oil or any refined petroleum product (other than activities entirely at the retail level), of not more than $10,000 for each violation; and

(iii) With respect to activities relating to the distribution of residual fuel oil or any refined petroleum product at the retail level or with respect to activities not otherwise referred to in paragraphs (b)(1) (i) and (ii) of this section of not more than $2,500 for each violation.

(2) The DOE may at any time refer a violation to the Department of Justice for the commencement of an action for civil penalties. When the DOE considers it to be appropriate or advisable, it may compromise, settle and collect civil penalties.

(c) Criminal Penalties. (1) Any person who willfully violates any provision of the regulation issued under authority of the Emergency Petroleum Allocation Act of 1973, as amended, or any order issued pursuant thereto may be imprisoned not more than 1 year, or shall be fined:

(i) With respect to activities relating to the production, distribution or refining of crude oil, not more than $40,000 for each violation;

(ii) With respect to activities relating to the distribution of residual fuel oil or any refined petroleum product (other than at the retail level), not more than $20,000 for each violation;

(iii) With respect to activities relating to the distribution of residual fuel oil or any refined petroleum product at the retail level or with respect to activities not otherwise referred to in paragraphs (c)(1) (i) and (ii) of this section, not more than $10,000 for each violation; or both.

(2) The DOE may at any time refer a willful violation to the Department of Justice for criminal prosecution.

(d) Definitions. For purposes of paragraphs (b) and (c) of this section:

(1) Violations with respect to “activities relating to the production, distribution or refining of crude oil" shall mean any violation by a producer or distributor of crude oi! of any provision of Parts 210, 211 or 212 of Title 10, CFR, or any order issued thereunder, relating to the purchase or sale of such crude oil and any reporting requirements related thereto, or any violation by a refiner of any provision of: (i) Parts 210 or 212 of this Title, or any order issued thereunder, relating to the proper calculation, allocation or reporting of crude oil or other input costs, including both product and nonproduct costs, or relating to prices charged or paid for crude oil; or (ii) Part 211 of this Title, or any order issued thereunder, relating to the allocation of crude oil, including but not limited to all provisions of Subpart C

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of Part 211 and any reporting requirements related thereto.

(2) "Distribution at the retail level" shall mean sales to the ultimate consumers of residual fuel oil or refined petroleum products.

(e) Corporate Personnel. (1) Any individual director, officer or agent of a corporation who knowingly and willPe fully authorizes, orders or performs any of the acts or practices constituting in whole or in part a violation of any provision of the regulations issued under authority of the Emergency Petroleum Allocation Act of 1973, as amended, or any order issued pursuant thereto, shall be subject to the penalties specified in paragraphs (b) and (c) of this section without regard to any penalties to which that corporation may be subject under paragraphs (b) and (c) of this section, except that no such individual director, officer or agent shall be subject to imprisonment under paragraph (c) of this section unless he also has knowledge, or reato: sonably should have known, of notice of noncompliance received by the corporation from the DOE.

(2) For purposes of this paragraph (e):

(i) "Agent" shall include any employee or other person acting on behalf of the corporation on either a temporary or permanent basis, whether or not he has authority to engage in the particular activity involved; and

(ii) "Notice of Noncompliance" shall be a Remedial Order issued under §§ 205.192 or 205.193, and a Consent Order issued under § 205.197.

(f) Other penalties. Willful concealment of material facts, or false or fictitious or fraudulent statements or representations, or willful use of any false writing or document containing false, fictitious or fraudulent statements pertaining to matters within the scope of the EPAA or FEAA by any person shall subject such person to the criminal penalties provided in 18 U.S.C. 1001 (1970).

[39 FR 35489, Oct. 1, 1974, as amended at 41 FR 19931, May 14, 1976. Redesignated at 41 FR 36647, Aug. 31, 1976, and further amended at 41 FR 49627, Nov. 10, 1976]

§ 205.204 Injunctions.

$ 205.212

Whenever it appears to the Administrator of the DOE, or his delegates, that any person has engaged, is engaged, or is about to engage in any act or practice constituting a violation of any regulation or order issued under this chapter, the Administrator, or his delegate, may request the Attorney General to bring an action in the appropriate district court of the United States to enjoin such acts or practices and, upon a proper showing, a temporary restraining order or a preliminary restraining order or a preliminary or permanent injunction shall be granted without bond. The relief sought may include a mandatory injunction commanding any person to comply with any such order or regulation, or the return of money received in violation of any such order or regulation.

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

Subpart Q-State Offices

§ 205.210 Purpose and scope.

This subpart establishes the procedures that govern applications for assignment under the state set-aside system, and applications for assignment by new end-users.

§ 205.211 Who may apply.

(a) Set-aside. A wholesale purchaserconsumer or an end-user, as defined in § 211.51, seeking an assignment from the state set-aside system as provided by 211.17 to meet a hardship or emergency requirement, and a wholesale purchaser-reseller, as defined in § 211.51, seeking an assignment to enable him to supply such wholesale purchaser-consumers and end-users, may apply for an assignment under the state set-aside system.

(b) Assignment. A new end-user may apply for an assignment of an allocated product or a supplier.

§ 205.212 What to file.

(a) Set-aside. Application for assignment from a state set-aside system may be by the appropriate DOE form, by other written communication or by verbal, including telephonic request.

(b) Assignment. Applications for assignment by new end-users shall satisfy the requirements of Subpart C of this part.

(c) If any applicant wishes to claim confidential treatment for any information contained in an application or other documents filed under this subpart, the procedures set out in

§ 205.9(f) shall apply.

$ 205.213 Where to file.

(a) Set-aside. All applications shall be filed with, or verbal requests made to, the State Office located in the State in which the product will be physically delivered and in which the applicant is located.

(b) Assignment. All applications for assignment shall be filed with the State Office located in the State in which the product will be physically delivered.

§ 205.214 Notice.

(a) Set-aside. The State Office may notify any person that it determines will be aggrieved by the assignment that comments regarding the application will be accepted.

(b) Assignment. The notice requirements of Subpart C of this part shall apply.

§ 205.215 Contents.

(a) Set-aside. (1) The State Office shall insure that an applicant provide sufficient information in an application for an assignment from the state set-aside system, whether such application is in writing or by verbal request, to enable the State Office to determine that the proposed allocation satisfies the objectives of the EPAA and Part 211 of this chapter. With respect to verbal applications, the State Offices shall establish internal procedures for the recording and verification of any information provided by an applicant. At a minimum, the information received by the State Office should be that required by form DOE20. Such information shall include, but not be limited to:

(i) The identification of any previous assignment order from the state setaside system that was issued to the applicant or to any person that controls or is controlled by the applicant; and

(ii) A statement that the applicant's base period supplier or new supplier is unable to supply his requirements or, if the applicant does not have a supplier, a statement that he has contacted two suppliers that could supply the allocated product and the identification of those suppliers.

(2) If the applicant is a wholesale purchaser-reseller, the application shall contain a description of the wholesale purchaser-consumers and end-users that will be supplied and their hardship and emergency requirements.

(b) Assignment. Applications for an assignment by new end-users shall conform to the requirements of Subpart C of this part.

§ 205.216 State Office evaluation.

(a) Set-aside-(1) Processing. (i) The State Office may initiate an investigation of any statement in an application, whether written or verbal, and utilize in its evaluation any relevant facts obtained by such investigation. The State Office 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 State Office may consider any other source of information. The State Office on its own initiative may convene a conference, if, in its discretion, it considers that a conference will advance its evaluation of the application.

(ii) If the State Office determines that there is insufficient information upon which to base a decision and if upon request the necessary additonal information is not submitted, the State Office may dismiss the application without prejudice. If the failure to supply additional information is repeated or willful, the State Office may dismiss the application with prejudice. (2) Criteria. (i) There shall be assignments only to wholesale purchaser-consumers and end-users located within the State who demonstrate hardship or emergency requirements (or to wholesale purchaser-resellers to enable them to supply such persons) with respect to propane, middle distillate, motor gasoline and residual fuel

oil (except that used by utilities or as bunker fuel for maritime shipping).

(ii) Any assignment ordered by a State Office shall conform to the requirements of section 4(b)(1) of the EPAA and 10 CFR 211.17.

(b) Assignment-(1) Processing. (i) The State Office may initiate an investigation of any statement in an application and utilize in its evaluation any relevant facts obtained by such investigation. The State Office 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 State Office may consider any other source of information. The State Office on its own initiative may convene a conference, if, in its discretion, it considers that a conference will advance its evaluation of the application.

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

(2) Criteria. (i) The State Office shall consider, among other relevant criteria, the quantity of allocated product previously sold or purchased at the end-user's site, the projected volume as calculated prior to construction at the end-user's site and the volume sold or purchased by other similar end-users operating in circumstances similar to the applicant's.

(ii) To be recommended for approval by a State Office, an application must conform to the requirements of the EPAA and 10 CFR Part 211.

(3) Recommendations to the DOE. (i) The State Office shall recommend in writing to the DOE those applications for assignment, other than applications for assignment from the state set-aside system, that it has determined warrant the issuance of an assignment order in accordance with Subpart C of this part, stating therein the reasons for the recommendation. The State Office may recommend that

the application be approved as filed or with modification. Included with such recommendation shall be copies of all documents relevant to the proceeding, including the application.

(ii) Upon consideration of the recommendation and other relevant information received or obtained during the proceeding, the DOE will enter an appropriate order.

[39 FR 35489, Oct. 1, 1974, as amended at 40 FR 48112, Oct. 14, 1975)

§ 205.217 Decision and order.

(a) Set-aside. (1) Upon consideration of the application, whether written or verbal, and other relevant information received or obtained during the proceeding, the State Office shall issue an order (for purposes of this section, an order may be the "authorizing document" referred to in § 211.17(e) of this chapter) denying or granting the application.

(2) 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 State Office in accordance with the procedure of such office.

(3) The order shall state that it is effective upon issuance and shall expire within 10 days of its issuance unless the applicant presents his copy of the order to the prime supplier or a designated local representative of such prime supplier within those 10 days.

(4) The State Office shall serve a copy of the order upon the applicant, the designated state representative of the prime supplier assigned to the applicant and any other person readily identifiable as one who will be aggrieved by said order.

(b) Assignment. (1) Upon consideration of an application and other relevant information received or obtained during the proceeding, the State Office may recommend to the DOE that such application be approved either as filed or with modification, or, as provided in Part 211 of this chapter, may deny the application in whole or in part.

(2) The order denying an application for assignment shall include a brief written statement summarizing the

factual and legal basis upon which it was issued. The order shall provide that any person aggrieved thereby may file an appeal with the State Office in accordance with its appeals procedures.

(3) The State Office shall serve a copy of the order upon the applicant and any other person who participated in the proceeding or who is readily identifiable by the State Office as a person who is aggrieved by the order.

§ 205.218 Timeliness.

(a) Set-aside. (1) If the State Office fails to take action on an application, whether verbal or written, within 10 days of filing (if the application is verbal, it shall be considered to be filed on the date that it is verbally communicated to the State Office), the applicant may treat the application as having been denied in all respects and may appeal therefrom as provided in this subpart.

(2) Notwithstanding paragraph (a) of this section, the State Office may temporarily suspend the running of the 10-day period if it finds that additional information is necessary or that the application was improperly filed. The temporary suspension shall remain in effect until the State Office serves upon the person notice that the additional information has been received and accepted or that the application has been properly filed, as appropriate. Unless otherwise provided in writing by the State Office, the 10day period shall resume running on the first day that is not a Saturday, Sunday, or Federal legal holiday and that follows the day on which the State Office serves upon the person the notice described in this paragraph.

(b) Assignment. If the State Office 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.

§ 205.219 Appeal.

(a) Set-aside. Any person aggrieved by a state set-aside assignment order issued by the State Office may file an appeal with the State Office in accordance with the procedures established

by such office. The appeal shall be filed within 15 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 and the appellate proceeding is completed by the issuance of an order granting or denying the appeal.

(b) Assignment. (1) Any person aggrieved by an order that denies an application for assignment may file an appeal with the State Office in accordance with the procedures established by such office. The appeal shall be filed within 30 days of service of the order from which the appeal taken. There has not been an exhaustion of administrative remedies until an appeal has been filed and the appellate proceeding is completed by the issuance of an order granting or denying the appeal.

(2) The appeal of the denial by the DOE of a State Office's recommendation that an application for assignment be granted shall be in accordance with the procedures stated in Subpart H of this part.

§ 205.220 Establishment of procedures.

(a) The establishment of procedures for the appeal of orders of assignment under the state set-aside system, the stay of such orders, the appeal of an order denying an application for assignment, or any other procedures shall be conducted in a manner designed to give as much notice of the procedures and as much opportunity for participation in the establishment thereof as is feasible. The notice of a proposal to establish procedures shall be published in a sufficient number of newspapers of statewide circulation calculated to receive the widest possible attention, shall be posted in a prominent location in the State Office and shall be widely circulated within the State by other appropriate methods. The State shall provide an opportunity for interested persons to present their views, including oral presentations, at least ten days before the proposed procedures become effective.

(b) Any appellate procedures established shall provide, at a minimum, for notice to persons aggrieved by the order that is the subject of the appeal,