(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 appropriate 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 date and estimates for the balance of the current allocation period.

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 such 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 ap

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 II 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 resuit 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]

Subpart E-Exemption

§ 205.70 Purpose and scope.

This subpart establishes the procedures for filing an application for exemption and the consideration of such by DOE. The applicant must be seeking an exemption from no less than an entire part, or subpart thereof, of this chapter. This subpart does not include the procedures for exemption of a product as provided in section 4(g) of the EPAA, and does not provide for exemptions from Part 213.

[40 FR 36557, Aug. 21, 1975]

§ 205.71 Procedures.

(a) An exemption may be effected only by amendment to the regulations. Although an application for an exemp

tion 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.

§ 205.72 What to file.

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.

§ 205.76 Decision and order.

(a) Upon consideration of the appliIcation and other relevant information obtained during the proceeding, the DOE shall issue an appropriate order. If the application is not denied, the