The Code of Federal Regulations of the United States of America

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]

§ 205.86 Appeal.

There is no administrative appeal of an interpretation.

(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) [43 FR 14437, Apr. 6, 1978]

Subpart G-Other Proceedings

§ 205.90 Purpose and scope.

(a) In general. This subpart establishes the procedures for the filing of such other applications, petitions, or requests as may be required or permitted from time to time under the provisions of this chapter, but (except to the extent otherwise provided in this subpart) does not supplant any procedures presently provided for in this part, including petitions to the Office of Hearings and Appeals filed in accordance with Subpart R of this part. This subpart specifically provides for applications by motor gasoline retail sales outlets in accordance with the provisions of § 211.106 and petitions to use multiple allocation fractions in accordance with the provisions of § 211.10(b).

(b) Petitions under § 212.78. This subpart also establishes general procedures for applications for certifications in accordance with the provisions of § 212.78. However, §§ 205.95 and 205.96 of this subpart shall not be applicable to such applications. Such applications shall be governed exclusively by § 205.98, in lieu of §§ 205.95 and 205.96.

(Emergency Petroleum Allocation Act of 1973, 15 U.S.C. 751 et seq., 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. 94385; Federal Energy Administration Act of 1974, 15 U.S.C. 787 et seq., Pub. L. 93-275, as amended, Pub. L. 94-332, Pub. L. 94-385, Pub. L. 95-70, and Pub. L. 95-91; Energy

(a) A person filing under this subpart shall file an “Application (petition or request, if applicable) for (identify action requested)," 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.

(b) If the person wishes to claim confidential treatment for any information contained in the application, petition, request, or other documents submitted under this subpart, the procedures set out in § 205.9(f) shall apply. § 205.92 Where to file.

(a) All applications, petitions or requests not described in other subparts of this part shall be filed in accordance with any ERA regulations or forms and instructions that relate thereto. If no such regulations or forms and instructions have been issued by the ERA, all such applications, petitions or requests shall be filed with the ERA office specified in § 205.13, at the address provided in § 205.12.

(b) An application by a motor gasoline retail sales outlet in accordance with the provisions § 211.106 shall be filed with the Regional Office for the region in which the retail sales outlets are located. Applications which involve retail sales outlets located in more than one region shall be filed with the appropriate Regional Office in each affected region.

(c) An application to use multiple allocation fractions in accordance with the provisions of § 211.10(b) shall be filed with the DOE National Office at the address provided in § 205.12.

(d) An application for certification of a tertiary enhanced recovery project in accordance with the provisions of § 212.78 shall be filed with the Administrator, Economic Regulatory Administration, Department of Energy, Attention: Manager, Tertiary Enhanced Recovery Program, Office of Fuels Regulation. If the application is determined to be sufficiently complete and adequate to commence processing, the ERA shall provide formal notice in writing to the applicant that such application has been accepted for processing.

§ 205.94 DOE evaluation.

(a) Processing. (1) The DOE may initiate an investigation of any statement in an application, petition or request and utilize in its evaluation any relevant facts obtained by such investigation. The DOE may solicit and accept submissions from third persons relevant to any application, petition or request provided that the person who filed is afforded an opportunity to respond to all third person submissions. In evaluating an application, petition or request, 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 ad

vance its evaluation of the application, petition or request.

(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, petition or request without prejudice. If the failure to supply additional information is repeated or willful, the DOE may dismiss the application, petition or request with prejudice.

(b) Criteria. In considering an application, petition or request, the DOE will apply the criteria stated in any DOE regulation, ruling, form or instruction that relates to such application, petition or request.

(a) Upon consideration of the application, petition or request and other relevant information received or obtained during the proceeding, if DOE action is required, the DOE shall issue an appropriate order.

(b) The order shall include a written statement setting forth the relevant facts and the legal basis of the order. 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) The DOE shall serve a copy of the order upon the person who filed and any other person who participated in the proceeding and may serve a copy of the order upon any person who is readily identifiable as one who is aggrieved by said order.

§ 205.96 Timeliness.

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 respects and may appeal therefrom as provided in this subpart.

§ 205.97 Appeal.

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 of this part and the appellate proceeding is completed by the issuance of an order granting or denying the appeal.

§ 205.98 Decision and review concerning applications under § 212.78.

(a) Upon consideration of the application for certification and other relevant evidence received or obtained during the proceeding, the ERA, in the person of the certifying authority identified in § 212.78, shall issue a proposed decision and order. Such proposed decision and order shall contain the relevant findings and conclusions, and shall be served upon the applicant and published by notice in the FEDERAL REGISTER, except that any matters contained in such proposed decision and order which are exempt from disclosure under 5 U.S.C. 552(b)(4) shall be deleted from the published decision and order.

(b) Any interested person may file a written objection to such proposed decision and order: Provided, That such objection is received by the certifying authority within 30 calendar days from the date of publication in the FEDERAL REGISTER of the proposed decision and order. If no objection is received within that period, the certifying authority may consider such proposed decision and order to be final, and may sign such order, unless such certifying authority determines otherwise on his own motion. No certification under § 212.78 shall be considered final until the certifying authority signs a final decision and order to that effect and such final decision and order has either not been appealed within the time prescribed under § 205.97 or has been affirmed on appeal.

(c) Any objection shall be signed by the party submitting it, shall state the grounds upon which objection is made, and shall set forth any evidence substantiating such objection. The certifying authority shall consider any

timely objection, and may in his discretion provide for formal or informal written submissions or oral presentations in connection therewith. Upon review of the matters submitted, the certifying authority may proceed to issue a final decision and order in the form proposed, issue a modified proposed or final decision and order, withhold further action upon the matter until other pertinent matters are resolved or clarified, or take such other action as is appropriate under the circumstances. The certifying authority shall notify the interested parties of the action taken and shall serve a copy of any final or modified proposed decision and order upon the party or parties.

(d) Appeal of a final decision and order issued under this section may be taken in accordance with the provisions of § 205.97: Provided, That no person who failed to make objection to a proposed decision and order as provided in this section may appeal a final decision and order issued in substantially the form proposed: And provided further, That a person making objection to a proposed decision and order may not raise any new grounds on appeal if the final decision and order is issued in substantially the form proposed.

Subpart H-Appeal

§ 205.100 Purpose and scope.

(a)(1) This subpart establishes the procedures for the filing of an administrative appeal of DOE actions taken under Subparts B, C, D, E, G, O, or T of this part, Subpart I of Part 212, or actions of the Director of Oil Imports specified in paragraph (a)(2) of this section, and the consideration of such appeal by the DOE. Appeals of orders

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issued by State Offices shall be in accordance with Subpart R.

(2) Actions of the Director of Oil Imports subject to appeal under this subpart are:

(i) Actions taken erroneously on applications for allocations of imports under Part 213 of this chapter; and

(ii) Denial of refunds pursuant to § 213.35(d) of license fees, whether in whole or in part, theretofore paid by a person.

(b) A person who has appeared before the DOE in connection with a matter arising under Subparts B, C, D, E, G, O, or T of this part, Subpart I of Part 212, or actions of the Director of Oil Imports specified in paragraph (a)(2) of this section, has not exhausted his administrative remedies until an appeal has been filed under this subpart and an order granting or denying the appeal has been issued.

§ 205.102 What to file.

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

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

(a) When the order upon which the appeal is based was issued by the DOE National Office, the appeal shall be filed with the Office of Exceptions and Appeals at the address provided in § 205.12.

(b) When the order upon which the appeal is based was issued by a Regional Office, the appeal shall be filed with that Regional Office at the address provided in § 205.12.

(a) The appellant shall send by United States mail a copy of the appeal and any subsequent amendments or other documents relating to the appeal, or a copy from which confidential information has been deleted in accordance with § 205.09(f), to each person who is reasonably ascertainable by the appeallant as a person who will be aggrieved by the DOE action sought, including those who participated in the prior proceeding. The copy of the appeal shall be accompanied by a statement that the person may submit comments regarding the appeal to the DOE office with which the appeal was filed within 10 days. The appeal filed with the DOE shall include certification to the DOE that the appellant has complied with the requirements of this paragraph and shall include the names and addresses of each person to whom a copy of the appeal was sent.

(b) Notwithstanding the provisions of paragraph (a) of this section, if an appellant determines that compliance with paragraph (a) of this section would be impracticable, the appellant shall:

(1) Comply with the requirements of paragraph (a) of this section with regard to those persons whom it is reasonable and possible to notify; and

(2) Include with the appeal a description of the persons or class or classes of persons to whom notice was not sent. The DOE may require the appellant 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 appeal will be accepted if filed within 10 days of service of that notice.

(d) Any person submitting written comments to the DOE with respect to an appeal filed under this subpart shall send a copy of the comments, or a copy from which confidential information has been deleted in accordance

(a) The appeal shall contain a concise statement of grounds upon which it is brought and a description of the relief sought. It 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 appeal. If the appeal includes a request for relief based on significantly changed circumstances, there shall be a complete description of the events, acts, or transactions that comprise the significantly changed circumstances, and the appellant shall state why, if the significantly changed circumstance is new or newly discovered facts, such facts were not or could not have been presented during the prior proceeding. For purposes of this subpart, the term "significantly changed circumstances"

shall mean

(1) The discovery of material facts that were not known or could not have been known at the time of the prior proceeding;

(2) The discovery of a law, regulation, interpretation, ruling, order or decision on an appeal or an exception that was in effect at the time of the proceeding upon which the order or interpretation is based and which, if such had been made known to DOE, would have been relevant to the proceeding and would have substantially altered the outcome; or

(3) A substantial change in the facts or circumstances upon which an outstanding and continuing order affecting the appellant was issued, which change has occurred during the interval between issuance of the order and the date of the appeal and was caused by forces or circumstances beyond the control of the appellant.

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