the Decision and Order referred to in § 205.69B.

§ 205.68 Evidentiary Hearing.

(a) If an Order is issued granting a Motion for an Evidentiary Hearing, in whole or in part, the Order shall specify the parties to the hearing, any limitations on the participation of a party, and the issues of fact to be considered at the evidentiary hearing. The Order may also require parties that have adopted similar positions to consolidate their presentations pursuant to a joint plan as specified in § 205.59(e). If the Office of Hearings and Appeals determines that requiring the filing of a plan would cause undue delay, it may dispense with that requirement of § 205.59(e).

(b) All evidentiary hearings convened pursuant to this Subpart shall be conducted by the Director of the Office of Hearings and Appeals or his designee. At any evidentiary hearing the parties shall have the opportunity to present material evidence that directly relates to a particular issue of fact set forth for hearing. The Presiding Officer shall afford the parties an opportunity to cross examine all witnesses concerning disputed material facts or opinions. The Presiding Officer may administer oaths or affirmations, rule on objections to the presentation of evidence, receive relevant material, require the advance submission of documents offered as evidence, rule on any motion to conform the Proposed Decision and Order to the evidence presented, rule on motions for continuance, dispose of procedural requests, determine the format of the hearing, modify any order granting a Motion for Evidentiary Hearing, direct the written motions, documents or briefs be filed with respect to issues raised during the course of the hearing, ask questions of witnesses, issue subpoenas, and otherwise regulate the conduct of the hearing. The Presiding Officer may take reasonable measures to exclude duplicative material from the hearing and may place appropriate limitations on the number of witnesses that may be called by a party. The presiding officer may also require that evidence be submitted through affidavits or other documents if the

§ 205.69 Hearing for the purpose of oral argument only.

(a) A person who has filed a Statement of Objections or a Response is entitled, upon timely request, to a hearing for the presentation of oral argument with respect to the Proposed Decision and Order. A request for oral argument will be considered timely if it is filed at the same time the Statement of Objections or the Response is filed.

(b) The Office of Hearings and Appeals may, upon motion or on its own initiative, convene a hearing for the purpose of receiving oral argument with respect to a Proposed Decision and Order. The Office of Hearings and Appeals may also require that parties participating in an oral argument file appropriate briefs, outlines or documents prior to the hearing.

(c) If an evidentiary hearing is convened and a hearing for oral argument has been requested, the Office of Hearings and Appeals shall determine whether the hearing for oral argument shall be held in conjunction with the evidentiary hearing or at a separate time.

(d) A hearing for the purpose of receiving oral argument will generally be conducted only after the issues involved in the proceeding have been delineated and after all written material requested by the Office of Hearings and Appeals has been submitted. The Presiding Officer may, however, require further written submissions in support of any position advanced or issue raised at the hearing, and may allow responses to any such submissions.

(e) In conducting a hearing for the purpose of oral argument the Presiding Officer may limit or extend the

length of arguments, consolidate parties, make rulings concerning the relevance of argument, question the participants, determine the format of the hearing, make other procedural rulings and otherwise regulate the conduct of the hearing.

§ 205.69A Interim Decision and Order.

an

(a) Notwithstanding any other provisions of this Subpart, the Director of the Office of Hearings and Appeals or his designee may, upon motion or on his own initiative, issue an Interim Order for the purpose of granting exception relief during the pendency of an exception proceeding. Such order may be issued only after a Proposed Decision and Order has been issued and only if the Office of Hearings and Appeals determines that public interest considerations strongly favor the approval of an interim exception pending the completion of the procedures ordinarily required by this Subpart. In making that determination the Office of Hearings and Appeals shall consider the following factors:

(1) The probability that exception relief will ultimately be granted;

(2) The harm an applicant is likely to incur unless exception relief is approved immediately; and

(3) The harm other persons are likely to incur if the Interim Order is issued.

(b) An Interim Decision and Order issued pursuant to this Section shall be served promptly on all persons on the Official Service List. The Decision shall specify the facts and law on which it is based, including a discussion of the factors listed in paragraph (a) of this section.

(c) Any person aggrieved by an Interim Decision and Order may file an Application for a Stay under Subpart I with the Office of Hearings and Appeals.

(d) An Interim Order issued under this section is interlocutory in nature and is therefore subject to appeal only upon issuance of the Decision and Order referred to in § 205.69B.

(a) After considering the entire record, the Director of the Office of Hearings and Appeals or his designee shall issue a final Decision and Order. The Decision shall state the factual and legal basis for the Order. In cases considered to be clearly controlled by prior Decisions of the Office of Hearings and Appeals, or a court, the Decision may be limited to a summary statement of the reasons for the Decision and a citation to precedent.

(b) The Order shall provide that any person whose interest is adversely affected by a denial of exception relief may appeal to the Federal Energy Regulatory Commission, in accordance with the Commission's regulations, within 30 days after the issuance of the Decision and Order.

(c) In order to exhaust administrative remedies in the case of a denial of exception relief, a person must file a timely appeal under paragraph (b) of this section and await the issuance of a final order in the appeal proceeding.

§ 205.69C Special Decision and Order Procedure; Waiver of Federal Register Notice.

(a) When the circumstances warrant, the Office of Hearings and Appeals may issue a Final Decision and Order pursuant to § 205.69B without first issuing a Proposed Decision and Order pursuant to § 205.56 after considering the following factors:

(1) The thoroughness with which issues have already been argued in the proceeding;

(2) The nature of the evidence that has already been presented in the proceeding and the likelihood that additional useful evidence would be submitted subsequent to the issuance of a Proposed Decision and Order;

(3) The need for a expeditious determination of the issues presented; (4) The financial resources with which existing parties can participate effectively in continued proceedings;

(5) Whether an exception was previously granted or denied to the applicant for the same reasons advanced in the present proceeding; and

(6) The public interest.

(b) In the alternative, the Director of the Office of Hearings and Appeals or his designee may, after considering the factors referred to in paragraph (a) of this section issue a Proposed Decision and Order but waive the notice requirements specified in § 205.57.

§ 205.69D Presiding

Officer; Deadlines; Limitations; Adverse Findings.

(a) The Presiding Officer referred to in this Subpart shall be the Director of the Office of Hearings and Appeals or his designee.

(b) The Presiding Officer may exercise any of the authority and issue any of the orders specified in this Part.

(c) The Presiding Officer may permit any document or submission filed under this subpart, other than an appeal 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 Presiding Officer may issue ancillary Orders, reconsider any determination, or make any ruling or determination deemed necessary to ensure that the proceedings specified in this subpart are conducted in an appropriate manner and are not unduly delayed.

(d) The Presiding Officer may determine that it is appropriate to make findings of fact adverse to the interests of any party or participant who violates an order, fails to make a timely filing or interferes with the orderly conduct of the proceedings.

(e) After notifying a participant or party of proposed action under paragraph (d) of this section and providing an opportunity for oral argument, the Presiding Officer may limit further participation in a proceeding by that person or his representative for disruptive or dilatory conduct or for a failure to participate actively.

(f) The Presiding Officer may issue subpoenas and special report orders with respect to any matter under his jurisdiction pursuant to this subpart.

(g) The Presiding Officer also may specify the time and place for hearings or for other methods of obtaining information specified in §§ 205.64, 205.66, 205.68, 205.69 or in other provisions of this subpart.

(h) The Presiding Officer may issue rulings or orders which are appropri

ate to conduct a fair, orderly or efficient proceeding, including the authority to administer oaths and affirmations, to regulate the conduct of the parties, to rule on the admissibility or form of submission of evidence, to modify orders, to direct the submission of written evidence or briefs, to place or remove limitations on the presentations of the parties, to provide for recesses or postponements, to determine that specified issues be resolved based on written submissions rather than on testimony and otherwise to provide for fair, orderly or efficient hearings.

§ 205.69E Ex Parte Communications: Prohibition and disclosure requirement.

(a)(1) Following the issuance of a Proposed Decision and Order, no person who is a party or who is otherwise participating in a contested exception proceeding pursuant to a notice filed in accordance with § 205.59 shall engage in an ex parte communication with an officer or employee of the Department of Energy concerning the pending Application for Exception. This restriction does not apply to communications authorized by §§ 205.56 through 205.69D or exempted by this section.

(2) Following the issuance of a Proposed Decision and Order, any person communicating with an officer or employee of the Department of Energy concerning a pending exception proceeding other than in the manner specified in §§ 205.56 through 205.69D shall inform the DOE official that the communication relates to a pending exception matter.

(b) Communications which consist of a request for status reports, an inquiry as to procedures or a submission of confidential data pursuant to § 205.61 are not subject to the restrictions set forth in paragraph (a) of this section. In addition, the prohibition contained in paragraph (a)(1) of this section does not apply to communications with officers or employees of the DOE who are not or will not be involved either directly or indirectly in the analysis of the exception application or the decision reached with respect to the matter.

(c) 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 shall notify in writing all participants in the affected proceeding. The Office of Hearings and Appeals may also take any other appropriate action to mitigate the adverse impact on any person whose interest may be affected by the ex parte contact, including the determination of issues adversely to the interest of the offending party or the issuance of an adverse Decision and Order.

[44 FR 16890, Mar. 20, 1979, as amended at 44 FR 22712, Apr. 17, 1979]

APPENDIX I TO SUBPART D OF PART 205-APPLICATIONS FOR EXCEPTIONS

BY PERSONS AFFECTED BY PART 213

1. Contents of Application.

Applications to be considered pursuant to § 205.50(a)(2) shall include the information required pursuant to § 205.54, as well as information required under section 2 or 3 of this Appendix, as appropriate.

2. Applications for Allocations of Finished Product.

In order that applications for finished product allocations may be processed, the applicant shall furnish the items listed below.

(1) Company ownership. If applicant is not a sole proprietorship, list all companies, individuals or stockholders possessing 10 percent or more of company ownership or stock.

(2) The relief requested (expressed in barrels per day and total barrels), the particular commodity for which relief is requested, and the specific period for which relief is requested.

(3) Market area, specifying Districts, in which applicant, its subsidiaries or affiliates operate.

(4) State whether applicant, its subsidiaries or affiliates sell products to (a) motorists, (b) home owners, (c) industrial and other commercial accounts, (d) governmental agencies, (e) farmers, and (f) independent marketers for resale without brand names or under brand names different from the brand name(s) used by applicant, its subsidiaries or affiliates.

(5) State for each of the last 3 years applicant's gross sales separately by product for the particular product(s) which are the subject of the application, and, where such sales are made; specify figures for: (a) Gasoline, (b) No. 2 fuel oil, (c) residual fuel oil, (d) other products or services (Estimate where appropriate). Also state gross sales to

State the product volumes which the applicant acquired in each of the last 3 years through spot purchases. If past suppliers terminated any supply contracts or allocated deliveries for the current year, state the name(s) of such supplier(s), the circumstances of contract termination, and the actual amount by which deliveries were or will be reduced.

(8) State, showing docket number, all previous filings with the Oil Import Appeals Board or the DOE in the present and 3 preceding years, the amount of product requested by the applicant in each such filing, all awards received as a result of these filings, and the amounts imported, exchanged, or otherwise obtained by the authority of such awards. The reasons why any portion of an award was not utilized should be explained in detail.

(9) List all suppliers contacted for the product(s) for which import allocations are sought for the current allocation period

who did not offer any product or offered it at non-competitive prices and explain the nature of each contact.

(10) List and describe storage facilities, transportation equipment, and any other equipment or installations relevant to the petroleum industry owned or controlled by applicant, its subsidiaries or affiliates. State whether products are supplied to applicant by tanker, barge, pipeline, railroad, or motorized equipment.

(11) Provide financial statements (Profit and Loss Statements and Balance Sheets) for the last three fiscal years and for the current fiscal year to date through the most recently completed fiscal quarter, for the applicant and any other business directly or indirectly controlled by the applicant. In the event that audited financial statements are prepared for the businesses, please submit a copy of these statements. If financial statements are not prepared for the businesses, submit a copy of income tax returns for the last three fiscal years.

(12) Provide projected current fiscal year financial statements for applicant assuming: (a) That the exception is granted as requested, and (b) that the exception request is denied. In addition, please provide a detailed description of the manner in which these projections are made and fully explain all assumptions which are included in the projections.

(13) Name the principal competitors of applicant, its subsidiaries and affiliates, in the business of marketing petroleum products. (Depending on size of applicant's operations, not more than five to ten competitors should be named.)

3. Applications for Allocations of Crude Oil and Unfinished Oils.

In order to process applications for allocations of crude oil and unfinished oils, the DOE requires the information set forth below:

(1) Company ownership. If applicant is not a sole proprietorship, list all companies, individuals or stockholders possessing 10 percent or more of company ownership or stock.

(2) The relief requested (expressed in barrels per day and total barrels), and whether the request is for offshore or Canadian crude oil, or for unfinished oils, or both, and the specific period for which relief is requested.

(3) All domestic subsidiaries and affiliates, if any, in which applicant holds an interest of 15 percent or more.

(4) Location and rated capacity of each domestic refinery owned or controlled by applicant.

(5) Average daily inputs of each refinery listed in item 5 above: (a) Of crude oil and (b) of other raw materials, in each of the last 3 calendar years, and in each elapsed month of the current allocation period.

(6) The volumes of (a) crude oil import allocations and (b) finished products import allocations received by the petitioner in the current year and in each of the 3 preceding years from the Office of Oil and Gas, the Oil Import Administration, or the Director, Oil Imports, as the case may be, and the amounts imported, exchanged or otherwise obtained by the authority of such awards. Unused awards should be explained in detail.

(7) State, showing docket number, all previous filings by petitioner with the Oil Import Appeals Board or the DOE in the present and 3 preceding years, the amount of product requested by the applicant in each such filing, all awards received as a result of these filings, and the amounts imported, exchanged or otherwise obtained by the authority of such awards. The reasons why any portion of an award was not utilized should be explained in detail.

(8) The approximate product yields (as percentage of total production) at each refinery listed in item 4 above during the current allocation period and the 2 preceding years.

(9) The percentages of total production of (a) gasoline, (b) No. 2 fuel oil, and (c) residual fuel oil sold to independent marketers during each quarter of the last calendar year. With respect to each of said product categories indicate what portions of such sales involved exchanges for finished product import licenses that had been issued to independent marketers.

(10) Specify the domestic and foreign sources (indicating company names) of crude oil supplies and other refinery feedstocks obtained by the applicant and the quantities received from each, in each of the last 3 years. Indicate which of these quantities involved the utilization of import licenses issued to the petitioner. In addition, state the volume of crude oil which the applicant acquired in each of the last 3 years through spot purchases.

(11) For each quarter of the last calendar year, list the weighted average cost per barrel of applicant's crude oil or other raw material supplies delivered to the refinery.

(12) List actual and/or prospective suppliers for the current allocation period of crude oil and other refinery feedstocks. Indicate the quantities already obtained as well as offered or expected during the current allocation period: