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 conference, if, in its discretion, it considers that a conference will advance its evaluation of the application.

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

(b) Criteria. (1) An application for assignment may be granted in the situations specified in Part 211 of this chapter when such assignment will assure an allocation that to the maximum extent possible provides for—

(i) The protection of public health, safety, and welfare, (including maintenance of residential heating, such as individual homes, apartments, and similar occupied dwelling units) and the national defense;

(ii) Maintenance of all public services (including facilities and services provided by municipally, cooperatively, or investor owned utilities or by any State or local government or authority, and including transportation facilities and services which serve the public at large);

(iii) Maintenance of agricultural operations, including farming, ranching, dairy, and fishing activities, and services directly related thereto;

(iv) Preservation of an economically sound and competitive petroleum industry; including the priority needs to restore and foster competition in the producing, refining, distribution, marketing, and petrochemical sectors of such industry, and to preserve the competitive viability of independent refiners, small refiners, non-branded independent marketers, and branded independent marketers;

(v) The allocation of suitable types, grades, and quality of crude oil to refineries in the United States to permit

such refineries to operate at full capacity;

(vi) Equitable distribution of crude oil, residual fuel oil, and refined petroleum products at equitable prices among all regions and areas of the United States and sectors of the petroleum industry, including independent refiners, small refiners, non-branded independent marketers, branded independent marketers, and among all users;

(vii) Allocation of residual fuel oil and refined petroleum products in such amounts and in such manner as may be necessary for the maintenance of, exploration for, and production or extraction of, fuels, and for required transportation related thereto;

(viii) Economic efficiency; and

(ix) Minimization of economic distortion, inflexibility, and unnecessary interference with market mechanisms.

(2) In the assignment of a base period volume to a wholesale purchaser, as defined in § 211.51, the DOE also shall consider the criteria provided in Part 211 of this chapter and DOE guidelines, rulings and decisions on appeal.

(3) In connection with the assignment of a supplier or a base period volume to a person planning to construct a synthetic natural gas plant after May 1, 1974, or to expand an existing one, the DOE also shall consider the criteria provided in § 211.29 of this chapter and DOE guidelines, rulings and decisions on appeal.

(4) In selecting a supplier for an assignment, the DOE shall consider the goal of equalizing allocation fractions among suppliers and the capability of the supplier to provide the product to an applicant on short notice.

(c) If an assignment is sought in connection with circumstances not referred to in Part 211 of this chapter, application for an exception should be filed with the DOE Office of Exceptions and Appeals at the address provided in § 205.12.

priate order. The order shall state the periods corresponding to base periods to which it applies, and shall be effective for the duration of the Mandatory Petroleum Allocation Program, according to its terms, unless a duration for a lesser period is specified therein.

(b) 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 DOE Office of Exceptions and Appeals or the appropriate Regional Office in accordance with Subpart H of this part. (c) Prior to issuance of an assignment order, the DOE shall contact the proposed supplier for the purpose of determining the accuracy of the facts upon which it intends to base the proposed assignment order and the impact such order may have upon the proposed supplier's operations, and to give the supplier a reasonable opportunity to comment on the proposed order. To the extent a proposed supplier's comments present facts other information that materially differs from those in the application, the applicant shall be advised and given an opportunity to respond verbally. The notice and comment provided herein may be in writing if time permits. (d) The DOE shall serve a copy of the order upon the person who thereby will be directed to supply the product or to establish a base period volume, the applicant and upon any other person readily identifiable by the DOE as one who is aggrieved by said order.

or

(e) Notwithstanding paragraph (a) of this section, any order issued pursuant to this subpart prior to December 31, 1974, other than a temporary assignment order under § 205.39, which order specifies a termination date of December 31, 1974, shall be deemed effective for the duration of the Mandatory Petroleum Allocation Program.

(f) Any effect of paragraph (e) of this section upon any order issued pursuant to this subpart prior to December 31, 1974 shall be deemed to be an DOE order issued under this subpart, which may be appealed by filing an appeal with the DOE Office of Exceptions and Appeals or the appropriate

Regional Office in accordance with the provisions of Subpart H of this part.

[39 FR 35489, Oct. 1, 1974, as amended at 39 FR 44031, Dec. 20, 1974]

§ 205.37 Timeliness.

(a) If the DOE 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 respect and may appeal therefrom as provided in this subpart.

(b) Notwithstanding the provisions of paragraph (a) of this section, if the DOE fails to take action on any application recommended for approval by a State Office pursuant to Subpart Q of this part within 30 days of receipt of such application by the DOE, the applicant may treat the application as having been denied in all respects and may appeal therefrom as provided in this subpart.

§ 205.38 Appeal.

(a) Any person aggrieved by an order issued by the DOE under this subpart may file an appeal with the DOE Office of Exceptions and Appeals or with the appropriate Regional Office in accordance with Subpart H of this part. The appeal shall be filed within 30 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 pursuant to Subpart H and the appellate proceeding is completed by the issuance of an order granting or denying the appeal.

(b) If an appeal is filed in connection with the issuance of an temporary assignment order in accordance with § 205.39, and subsequent to such appeal an assignment order from which said person also appeals is issued to the recipient of the temporary assignment order, the appeal from both the temporary assignment order and the subsequent assignment order shall be consolidated and considered in the same appellate proceeding. § 205.39 Temporary assignment.

(a) In certain circumstances and upon application, the DOE may issue

a temporary assignment order to certain wholesale purchaser-resellers and to wholesale purchaser-consumers or end-users with a requirement for an allocated product for which there is not a state set-aside, or who, in accordance with Part 211 of this chapter, must submit applications for assignment to the National DOE, or who file an application for assignment of supplier pursuant to § 211.12(h). Those end-users, wholesale purchaser-consumers and wholesale purchaser-resellers requesting an assignment to meet the needs of end-users and wholesale purchaser-consumers experiencing hardship or emergency requirements with respect to products for which there is a state set-aside (products in the state set-aside are identified in § 211.17(a)) shall apply to the appropriate State Office for an assignment from the state set-aside system, in accordance with Subpart Q of this part.

The ordering of a temporary assignment shall occur only in dire circumstances and when it is not feasible to issue an assignment order that conforms to the DOE guidelines, including, but not limited to, the requirement that assignment orders for a month be issued, to the maximum extent possible, by the 15th of the preceding month. Temporary assignments are intended to be issued when circumstances do not permit the issuance of an assignment order in the normal time period, i.e., prior to the 15th day of the month preceding the month for which there is the requirement for the assignment. Thus, a temporary assignment is an "off-phase" order. The “Application for Temporary Assignment" or "Application for Assignment" pursuant to § 211.12(h) is to conform to the requirements of § 205.34, except that such requirements may be waived in whole or in part by the DOE for good cause shown. The application shall fully describe why the assignment must be made out of phase with the normal issuance of assignment orders. A temporary assignment order shall have a duration of not longer than 60 days, except that a temporary assignment order issued upon an application pursuant to § 211.12(h) may have a dura

tion of up to 90 days and shall terminate at the end of a period corresponding 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 assign

ment 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 allocations 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]

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 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.

(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.