State which of the above supplies are a result of spot purchases. To the extent that purchases already have been consummated or contract prices have been fixed, indicate the average effective cost per barrel of such crude oil supplies delivered to the refinery. Indicate also which of the supplies listed in response to this question involve the utilization of import licenses issued to applicant.

(13) 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 noncompetitive prices and explain the nature of each such contact.

Provide the Board with any responses from suppliers which are or may be in violation of any government sponsored allocation program.

(14) A brief description of ownership participation of applicant in crude pipelines (including gathering systems), in finished product pipelines, and in inland water transportation equipment.

(15) Type and capacity of crude oil storage facilities at each refinery listed in item 4 above at the time of submitting the application and a brief description of mode of crude oil delivery to such facilities (pipeline, tanker, barge, railroad, etc.).

(16) Crude oil inventory at each refinery listed in item 4 above at the time of filing of the petition.

(17) 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.

(18) Provide projected current fiscal year financial statements for the 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.

[40 FR 36556, Aug. 21, 1975. Redesignated at 41 FR 22343, June 3, 1976]

APPENDIX A TO SUBPART D OF PART 205-DISPOSITION OF REQUESTS FOR EXCEPTIONS FROM Part 213

In its consideration of any application filed pursuant to § 205.50(a)(2) which is based on a claim of hardship in accordance with paragraphs (a)(2)(i)(A), (C), and (D) of that section, the DOE shall consider the principles set forth in the Decisions and Orders issued with respect to applications for exception from other generally applicable DOE regulations to the extent that such precedents are relevant and consistent with Proclamation No. 3279, as amended, and shall give particular weight to the following factors:

1. Whether payment of the fee (or other action required under Part 213) would lead to a result unintended by Proclamation No. 3279, as amended, or would impede important national energy policy objectives, including the furtherance of competition at any level of distribution in the petroleum industry and the encouragement of market entry.

2. Whether payment of the fee (or other action required under Part 213) would so affect the operations of the firm applying for exception relief as to cause a significant reduction in service or threaten interruptions in service to present customers.

3. Whether payment of the fee would adversely affect the firm applying for exception relief in a manner which threatens its financial viability in terms of its profitability, liquidity, or the stability of its operations, would place the firm at a significant competitive disadvantage in a market in which the firm operates, or would otherwise significantly reduce competition.

4. Whether the firm applying for exception relief is likely to incur a significant deterioration in its current operating posture in contrast with historic levels as a result of its inability due to competitive conditions to increase its prices to reflect import license fees.

5. Whether the firm makes a convincing showing that adequate domestic supplies of suitable product at competitive prices are not available.

SPECIAL GUIDELINE I

For the allocation period May 1, 1977 through April 30, 1978, any person desiring to import residual fuel oil into District I shall be deemed to be experiencing an exceptional hardship to the extent that his

available fee-exempt licenses, if any, are less than his contractual obligations or other projected needs for that period. Any person SO deemed may receive additional feeexempt licenses in the amount required to meet such obligations or needs by certifying his additional requirements to the Director of Oil Imports. The Director shall issue a license for the amount certified, except where he determines that issuance thereof would not be in accordance with the objectives of Proclamation No. 3279, as amended.

Any license issued pursuant to this Special Guideline shall be subject to the limitations contained in § 213.15(e). Licenses which remain unused at the end of the allocation period shall expire at that time.

[41 FR 22343, June 3, 1976, as amended at 42 FR 54256, Oct. 5, 1977. Redesignated and amended at 44 FR 37938, June 29, 1979]

(a) An exemption may be effected only by amendment to the regulations. Although an application for an exemption is a request for a rulemaking, the application is not subject to the procedures of Subpart L. If a rulemaking proceeding is convened, however, it shall be held in accordance with Subpart L.

(b) An application for an exemption shall be submitted separate and apart from any other application, appeal, petition or other request submitted in accordance with this part. If an application for exemption is included with any other application, appeal, petition, or other request, the application for exemption will not be processed, nor will it be severed for separate consideration.

What to file.

§ 205.72 A person filing under this subpart shall file an "Application for Exemption," which should be clearly labeled as such both on the application 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.

§ 205.73 Where to file.

An application for exemption shall be filed with the Office of Private Grievances and Redress at the address provided in § 205.12.

§ 205.74 Contents.

The application shall contain a full and complete statement of all relevant facts pertaining to the circumstances, act or transaction that is the subject of the application and to the DOE action sought. The application shall identify the part or parts, or subparts thereof, of this chapter from which the exemption is sought; describe the business or other reason that would justify such exemption; identify the persons or classes of persons and acts or transactions that would be affected by such exemption and describe any adverse impact; describe the benefit to the person making the application, or others, that would result if the exemption were effected; and explain the reasons why the action sought by the application cannot be accomplished by any other proceeding provided in this part. Upon request, the applicant shall submit copies of relevant contracts, agreements, leases, instruments, and other documents that are representative of those that would be affected by the granting of the requested exemption.

§ 205.75 DOE evaluation.

(a) Processing. All applications for exemption shall be evaluated by DOE to determine if the institution of rulemaking is warranted and if the DOE action sought by the application could more appropriately be considered in

any other proceeding provided by this part.

(b) Criteria. (1) Rulemaking proceedings for the purposes of considering an application for exemption will be instituted only if the DOE in its discretion determines that such a proceeding would be appropriate. Among the factors that the DOE will evaluate in making a determination with respect to a rulemaking are

(i) The impact that granting the exemption would have on the regulatory scheme and objectives;

(ii) The number of persons who would be exempted; and

(iii) The economic justification for such exemption.

(2) The DOE may summarily deny an application for exemption if

(i) The exemption sought is not from a part or parts, or a subpart thereof, of this chapter;

(ii) The granting of an exemption to the person making the application would not have sufficient national impact, economic or otherwise, to warrant rulemaking proceedings for the purpose of considering an amendment to the regulation;

(iii) It is determined that the statutory criteria cannot be met; or

(iv) It is determined that another proceeding provided by this part is more appropriate.

(a) Upon consideration of the application and other relevant information obtained during the proceeding, the DOE shall issue an appropriate order. If the application is not denied, the order shall provide for publication of a notice of proposed rulemaking regarding the application in the FEDERAL REGISTER.

(b) The order shall include a written statement setting forth the relevant facts and legal basis for the decision. The order denying the application shall state that any person aggrieved thereby may file an appeal with Office of Exceptions and Appeals in accordance with Subpart H of this part.

(c) In addition to the procedures provided in § 202.2 of this chapter, upon the written request of any person, which request is filed after any grant or denial of a request for an

exemption under Part 209, DOE shall furnish such person, within thirty (30) days after the date on which such request is filed, with a copy of the decision and order. All such requests shall be directed to the Director of Public Affairs, Federal Energy Office, Washington, D.C. 20461, and shall be clearly marked on the envelope: "Attention: Information Access Officer." The fees for providing such decision and order shall be determined in accordance with § 202.8 of this chapter.

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

(b) A request for interpretation that includes, or could be construed to include an application for an exception or an exemption may be treated solely as a request for interpretation and processed as such.

(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. 94-385, Energy Policy and Conservation Act, Pub. L. 94-163, as amended, Pub. L. 94-385; E.O. 11790, 39 FR 23185; Department of Energy Organization Act, Pub. L. 95-91; E.O. 12009, 42 FR 46267) [39 FR 35489, Oct. 1, 1974, as amended at 43 FR 14437, Apr. 6, 1978]

(a) A person filing under this subpart shall file a "Request for Interpretation," which should be clearly labeled as such both on the request and on the outside of the envelope in which the request is transmitted, and shall be in writing and signed by the person filing the request. The person filing the request shall comply with the general filing requirements stated in § 205.9 in addition to the requirements stated in this subpart.

(b) If the person filing the request wishes to claim confidential treatment for any information contained in the request or other documents submitted under this subpart, the procedures set out in § 205.9(f) shall apply.

A request for interpretation shall be filed with the General Counsel or his delegate or with the appropriate Regional Counsel at the address provided in § 205.12.

(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. 94-385; Energy Policy and Conservation Act, Pub. L. 94-163, as amended, Pub. L. 94-385; E.O. 11790, 39 FR 23185; Department of Energy Organization Act, Pub. L. 95-91; E.O. 12009, 42 FR 46267) [39 FR 35489, Oct. 1, 1974, as amended at 43 FR 14437, Apr. 6, 1978; 43 FR 17803, Apr. 26, 1978]

(a) The request shall contain a full and complete statement of all relevant facts pertaining to the circumstances, act or transaction that is the subject of the request and to the DOE action sought. Such facts shall include the names and addresses of all affected persons (if reasonably ascertainable) and a full discussion of the pertinent provisions and relevant facts contained in the documents submitted with the request. Copies of all relevant contracts, agreements, leases, instruments, and other documents shall be submitted with the request. When the request pertains to only one step of a larger integrated transaction, the facts, circumstances, and other relevant information pertaining to the entire transaction must be submitted.

(b) The request for interpretation shall include a discussion of all relevant authorities, including, but not limited to, DOE rulings, regulations, interpretations and decisions on appeals and exceptions relied upon to support the particular interpretation sought therein.

§ 205.84 DOE evaluation.

(a) Processing. (1) The DOE may initiate an investigation of any statement in a request and utilize in its evaluation any relevant facts obtained by such investigation. The DOE may accept submissions from third persons relevant to any request for interpretation provided that the person making the request is afforded an opportunity to respond to all third person submissions. In evaluating a request for interpretation, 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 such conference will advance its evaluation of the request.

(2) The DOE shall issue its interpretation on the basis of the information provided in the request, unless that information is supplemented by other information brought to the attention of the General Counsel or a Regional Counsel during the proceeding. The interpretation shall, therefore, depend for its authority on the accuracy of the factual statement and may be

relied upon only to the extent that the facts of the actual situation correspond to those upon which the interpretation was based.

(3) If the DOE determines that there is insufficient information upon which to base a decision and if upon request additional information is not submitted by the person requesting the interpretation, the DOE may refuse to issue an interpretation.

(b) Criteria. (1) The DOE shall base an interpretation on the FEA and EPAA and the regulations and published rulings of the DOE as applied to the specific factual situation.

(2) The DOE shall take into consideration previously issued interpretations dealing with the same or a related issue.

(a) An interpretation may be issued after consideration of the request for interpretation and other relevant information received or obtained during the proceeding.

(b) The interpretation shall contain a statement of the information upon which it is based and a legal analysis of and conclusions regarding the application of rulings, regulations and other precedent to the situation presented in the request.

(c) Only those persons to whom an interpretation is specifically addressed and other persons upon whom the DOE serves the interpretation and who are directly involved in the same transaction or act may rely upon it. No person entitled to rely upon an interpretation shall be subject to civil or criminal penalties stated in Subpart P of this part for any act taken in reliance upon the interpretation, notwithstanding that the interpretation shall thereafter be declared by judicial or other competent authority to be invalid.

(d) An interpretation may be rescinded or modified at any time. Rescission or modification may be effected by notifying persons entitled to rely on the interpretation that it is rescinded or modified. This notification shall include a statement of the reasons for the recision or modification and, in the case of a modification, a re

statement of the interpretation as modified.

(e) An interpretation is modified by a subsequent amendment to the regulations or ruling to the extent that it is inconsistent with the amended regulation or ruling.

(f)(1) Any person aggrieved by an interpretation may submit a petition for reconsideration to the General Counsel within 30 days of service of the interpretation from which the reconsideration is sought. There has not been an exhaustion of administrative remedies until a period of 30 days from the Idate of service of the interpretation has elapsed without receipt by the General Counsel of a petition for reconsideration or, if a petition for reconsideration of the interpretation has been filed in a timely manner, until that petition has been acted on by the General Counsel. However, a petition to which the General Counsel does not respond within 60 days of the date of receipt thereof, or within such extended time as the General Counsel may prescribe by written notice to the petitioner concerned within that 60 day period, shall be considered denied.

(2) A petition for reconsideration may be summarily denied if—

(i) It is not filed in a timely manner, unless good cause is shown; or

(ii) It is defective on its face for failure to state, and to present facts and legal argument in support thereof, that the interpretation was erroneous in fact or in law, or that it was arbitrary or capricious.

(3) The General Counsel may deny any petition for reconsideration if the petitioner does not establish that—

(i) The petition was filed by a person aggrieved by an interpretation;

(ii) The interpretation was erroneous in fact or in law; or

(iii) The interpretation was arbitrary or capricious. The denial of a petition shall be a final order of which the petitioner may seek judicial review.

(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. 94-385, Energy Policy and Conservation Act, Pub. L. 94-163, as amended, Pub. L. 94-385; E.O. 11790, 39 FR