The Code of Federal Regulations of the United States of America

(b) A copy of the order that is the subject of the appeal shall be submitted with the appeal.

(c) The appellant shall state whether to the best of his knowledge the same or a related issue, act or transaction that is the subject of the appeal has been or presently is being considered or investigated by any DOE office, other Federal agency, department or instrumentality; or by a State Office, a state or municipal agency or court, or by any law enforcement agency; including, but not limited to, a consideration or investigation in connection with a DOE proceeding described in this part, other than the proceeding from which the appeal is taken. In addition, the appellant shall state whether contact has been made by the appellant or one acting on his behalf with any person who is employed by the DOE or any State Office subsequent to service of the order that is being appealed with regard to the issue, act or transaction that is the subject of the appeal; the name of the person contacted; whether the contact was verbal or in writing; the nature and substance of the contact; and the date or dates of the contact. An appellant shall comply with this paragraph in lieu of § 205.9(e).

(d) The appellant shall state whether he requests or intends to request that there be a conference or hearing regarding the appeal. Any request not made at the time the appeal is filed shall be made as soon thereafter as possible, to insure that the conference or hearing is held when it will be most beneficial. The request and the DOE's determination regarding it shall be made in accordance with Subpart M of this part.

(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]

§ 205.106 DOE Evaluation.

(a) Processing. (1) The DOE may initiate an investigation of any statement in an appeal and utilize in its evaluation any relevant facts obtained by such investigation. With respect to appeals of actions specified in

§ 205.100(a)(2), the Office of Exceptions and Appeals shall forward to the Director of Oil Imports copies of all submissions to it, and shall provide the Director opportunity to comment on the appeal. The DOE may solicit and accept submissions from third persons relevant to any appeal provided that the appellant is afforded an opportunity to respond to all third person submissions. In evaluating an appeal, the DOE may consider any other source of information. The DOE on its own initiative may convene a conference or hearing if, in its discretion, it considers that such conference or hearing will advance its evaluation of the appeal.

(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 appeal with leave to amend within a specified time. If the failure to supply additional information is repeated or willful, the DOE may dismiss the appeal with prejudice. If the appellant fails to provide the notice required by § 205.104, the DOE may dismiss the appeal without prejudice.

(3) Failure to satisfy requirements. (i) If the appellant fails to satisfy the requirements of paragraph (b)(1) of this section, the DOE may issue an order denying the appeal. The order shall state the grounds for the denial and a copy of the order shall be served upon the appellant and any other person who participated in the proceeding.

(ii) The order denying the appeal shall become a final order of the DOE within 10 days of its service upon the appellant, unless within such 10-day period an amendment to the appeal that corrects the deficiencies identified in the order is filed with the Office of Exceptions and Appeals or the appropriate Regional Office.

(iii) Within 10 days of the filing of such amendment, as provided in paragraph (b)(1) of this section, the DOE shall notify the appellant whether the amendment corrects the specified deficiencies. If the amendment does not correct the deficiencies, that notice shall be an order dismissing the appeal as amended. Such order shall be a final order of the DOE of which appellant may seek judicial review.

(b) Criteria. (1) An appeal 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 DOE action was erroneous in fact or in law, or that it was arbitrary or capricious.

(2) The DOE may deny any appeal if the appellant does not establish that(i) The appeal was filed by a person aggrieved by a DOE action;

(ii) The DOE's action was erroneous in fact or in law; or

(iii) The DOE's action was arbitrary or capricious.

The denial of an appeal shall be a final order of DOE of which the appellant may seek judicial review.

[39 FR 35489, Oct. 1, 1974, as amended at 40 FR 36557, Aug. 21, 1975]

(a) Upon consideration of the appeal and other relevant information received or obtained during the proceeding, the DOE shall enter an appropriate order, which may include the modification of the order that is the subject of the appeal.

(b) The order shall include a written statement setting forth the relevant facts and the legal basis of the order. The order shall state that it is a final order of the DOE of which the appellant may seek judicial review.

(c) The DOE shall serve a copy of the order upon the appellant, any other person who participated in the proceeding and upon any other person readily identible by the DOE as one who is aggrieved by such order.

(d) A copy of each order, with such modification as is necessary to insure the confidentiality of information protected from disclosure under 18 U.S.C.

1905 and 5 U.S.C. 552, will be filed in the public docket room described in § 205.15. If such copy contains information that has been claimed by an appellant or other person, to be confidential, notice of the DOE's intention to place a copy in the docket room and an opportunity to respond shall be given to such person no less than five days prior to its placement in such

room.

§ 205.108 Appeal of a remedial order.

The appeal of a remedial order shall be in accordance with the procedures stated in this subpart, except:

(a) The appeal must be filed within 10 days of the service of the remedial order; and

(b) If the appeal is of a remedial order that was issued subsequent to a notice of probable violation that relates to an order or interpretation previously issued by the DOE, with respect to which there was an exhaustion of administrative remedies, no issues will be considered on the current appeal that were raised in that prior proceeding.

(c) If an issue raised on an appeal of a remedial order is also being considered in connection with any other DOE proceeding, the DOE may consolidate such issues and consider them in the appellate proceeding for the remedial order.

within 90 days of serving such notice, the appellant may treat the appeal as having been denied in all respects and may seek judicial review thereof.

(b) Notwithstanding the provisions of paragraph (a) of this section, if the DOE fails to take action on the appeal within 120 days of the filing of the appeal, the appellant may treat it as having been denied in all respects and may seek judicial review thereof.

Subpart I-Stay and Temporary 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: 44 FR 36935, June 25, 1979, unless otherwise noted.

§ 205.120 Purpose and scope of relief.

(a) This subpart establishes the procedures for applying for a stay or a temporary exception. It also specifies the nature of the relief which may be effectuated through the approval of a stay or temporary exception.

(b) An application for a stay or temporary exception will be considered if it is incident to a submission which the DOE procedural regulations specify shall be filed with the Office of Hearings and Appeals. An application for stay may also be considered if the stay is requested pending judicial review of an order issued by the Office of Hearings and Appeals.

(c) All applicable DOE orders, regulations, rulings, and generally applicable requirements shall be complied with unless and until an application for a stay or temporary exception is granted.

(d) The Office of Hearings and Appeals may in its discretion regard an Application for Stay as seeking a temporary exception if it concludes that a temporary exception is the more ap

§ 205.121 What to file.

(a) A person filing under this subpart shall file an "Application for Stay," or an "Application for Temporary Exception" which should be clearly labeled as such both on the application and on the outside of the envelope in which the application is transmitted. The application shall be in writing and signed by the person filing it. 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 under this subpart, the procedures set out in § 205.9(f) shall apply.

(a) An application for stay of a DOE order incident to an appeal from the order shall be filed with the Office of Hearings and Appeals or with the appropriate Regional Office of Hearings and Appeals at the address provided in § 205.12.

(b) An application for stay of any or all DOE regulations, rulings, or generally applicable requirements incident to an application for an exception therefrom shall be filed with the Office of Hearings and Appeals or with the appropriate Regional Office of Hearings and Appeals as specified in § 205.52 at the address provided in § 205.12.

(c) An application for temporary exception incident to an application for exception shall be filed with the Office of Hearings and Appeals or with the appropriate Regional Office of Hearings and Appeals as specified in § 205.52 at the address provided in § 205.12.

(d) An application for stay of a DOE order or of the application of any DOE regulations, rulings or generally applicable requirements pending judicial review shall be filed with the

office that issued the order of which judicial review is sought.

§ 205.123 Notice.

(a) An applicant for stay or temporary exception shall notify each person readily identifiable as one who will be directly aggrieved by the DOE action sought that it has filed an application for stay or an application for temporary exception. The applicant shall serve the application on each identified person and shall notify each such person that the Office of Hearings and Appeals will receive and endeavor to consider, subject to time constraints imposed by the urgency of the proceeding, written comments on the application that are submitted immediately.

(b) Any person submitting written comments to the Office of Hearings and Appeals with respect to an application filed under this subpart shall send a copy of the comments, or a copy from which confidential information has been deleted in accordance with § 205.9(f), to the applicant. The person shall certify to the Office of Hearings and Appeals that it has complied with the requirements of this paragraph. The Office of Hearings and Appeals may notify other persons participating in the proceeding of such comments and provide an opportunity for such persons to respond.

(c) The Office of Hearings and Appeals shall require the applicant to take reasonable measures depending on the circumstances and urgency of the case to notify each person readily identified as one that will be directly aggrieved by the DOE action sought of the date, time and place of any hearing or other proceedings in the matter. However, if the Director of the Office of Hearings and Appeals or his designee concludes that the circumstances presented by the applicant justify immediate action, the Office of Hearings and Appeals may issue a Decision on the application for stay or temporary exception prior to receipt of written comments or the oral presentation of views by adversely affected parties.

Contents.

§ 205.124 (a) An application for stay or temporary exception shall contain a full and complete statement of all relevant facts pertaining to the act or transaction that is the subject of the application and to the DOE action sought. Such facts shall include, but not be limited to, all information that relates to satisfaction of the criteria in § 205.125(b).

(b) The application shall include a description of the proceeding incident to which the stay or temporary exception is being sought. This description shall contain a discussion of all DOE actions relevant to the proceeding.

§ 205.125 DOE evaluation.

(a) Processing. (1) The Office of Hearings and Appeals may initiate an investigation of any statement in an application and utilize in its evaluation any relevant facts obtained by such investigation. The Office of Hearings and Appeals may solicit and accept submissions from third persons relevant to an application provided that the applicant is afforded an opportunity to respond to all third person submissions. In evaluating an application, the Office of Hearings and Appeals may also consider any other source of information.

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

(3) The Office of Hearings and Appeals shall process applications for stay and temporary exception as expeditiously as possible. When administratively feasible, the Office of Hearings and Appeals shall grant or deny an application for stay or temporary

exception within 10 business days after receipt of the application.

(4) Notwithstanding any other provision of the DOE Regulations the Office of Hearings and Appeals may make a decision on an application for stay or temporary exception prior to the receipt of written comments.

(b) Criteria. The criteria to be considered and weighed by the Office of Hearings and Appeals in determining whether a stay or temporary exception should be granted are:

(1) Whether a showing has been made that an irreparable injury will result in the event that the stay or temporary exception is denied;

(2) Whether a showing has been made that a denial of the stay or temporary exception will result in a more immediate hardship or inequity to the applicant than to the other persons affected by the proceeding;

(3) Whether a showing has been made that it would be desirable for public policy reasons to grant immediate relief pending a decision on the merits of the underlying appeal or exception application;

(4) Whether a showing has been made that it is impossible for the applicant to fulfill the requirements of an outstanding order or regulatory provision; and

(5) Whether a showing has been made that there is a strong likelihood of success on the merits.

§ 205.126 Decision and order with regard to applications for stay.

(a) In considering applications for stay the Director of the Office of Hearings and Appeals or his designee may order the submission of additional information and conduct hearings or conferences either in response to requests by parties in the proceeding or on his own initiative.

(b) In reaching a decision with respect to an application for stay, the Office of Hearings and Appeals shall consider all relevant information in the record. An application for stay may be decided by the issuance of an Order either during the course of a hearing or conference in which an official transcript is maintained or in a separate written Decision and Order. Any such order shall include a state

ment of the relevant facts and the legal basis of the decision.

(c) The approval or denial of a stay is not an order of the DOE that is subject to administrative review, except as provided in § 205.199D(h)(2).

(d) In its discretion and upon a determination that it would be desirable to do so in order to further the objectives stated in the regulations or in the statutes the DOE is responsible for administering, the Office of Hearings and Appeals may order a stay on its own initiative.

§ 205.127 Temporary stay.

(a) The Director of the Office of Hearings and Appeals or his designee may issue an order granting a temporary stay if he determines that an applicant has made a compelling showing that it would incur an irreparable injury unless immediate stay relief is granted pending the submission of and determination on an application for stay submitted pursuant to this subpart. If he concludes that a showing has been made that a temporary stay should be granted, the Director of the Office of Hearings, and Appeals or his designee may waive any other procedural requirement of this Part.

(b) An application for temporary stay shall be labeled as such 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. It shall include a description of the proceeding incident to which the stay is being sought and of the facts and circumstances which support the applicant's claim that it will incur an irreparable injury unless immediate stay relief is granted. The applicant shall comply with the general filing requirements stated in § 205.9 in addition to the requirements stated in this section. The Office of Hearings and Appeals may on its own initiative issue an order granting a temporary stay upon a finding that a person will incur an immediate irreparable injury or that the public interest will be adversely affected to a substantial extent unless a temporary stay is ordered.

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