(a) A Remedial Order, a Remedial Order for Immediate Compliance, an Order of Disallowance, or a Consent Order may require the person to whom it is directed to roll back prices, to make refunds equal to the amount (plus interest) charged in excess of those amounts permitted under DOE Regulations, to make appropriate compensation to third persons for administrative expenses of effectuating appropriate remedies, and to take such other action as the DOE determines is necessary to eliminate or to compensate for the effects of a violation or any cost disallowance pursuant to § 212.83 or § 212.84. Such action may include a direction to the person to whom the Order is issued to establish an escrow account or take other measures to make refunds directly to purchasers of the products involved, notwithstanding the fact that those purchasers obtained such products from an intermediate distributor of such person's products, and may require as part of the remedy that the person to whom the Order is issued maintain his prices at certain designated levels, notwithstanding the presence or absence of other regulatory controls on such person's prices. In cases where purchasers cannot be reasonably identified or paid or where the amount of each purchaser's overcharge is incapable of reasonable determination, the DOE may refund the amounts received in such cases directly to the Treasury of the United States on behalf of such purchasers.

(b) The DOE may, when appropriate, issue final Orders ancillary to a Remedial Order, Remedial Order for Immediate Compliance, Order of Disallowance, or Consent Order requiring that a direct or indirect recipient of a refund pass through, by such means as the DOE deems appropriate, including those described in paragraph (a) of this section, all or a portion of the refund, on a pro rata basis, to those customers of the recipient who were adversely affected by the initial overcharge. Ancillary Orders may be appealed to the Office of Hearings and Appeals only pursuant to Subpart H.

§ 205.199J Consent Order.

(a) Notwithstanding any other provision of this subpart, the DOE may at any time resolve an outstanding compliance investigation or proceeding, or a proceeding involving the disallowance of costs pursuant to § 205.199E with a Consent Order. A Consent Order must be signed by the person to whom it is issued, or a duly authorized representative, and must indicate agreement to the terms contained therein. A Consent Order need not constitute an admission by any person that DOE regulations have been violated, nor need it constitute a finding by the DOE that such person has violated DOE regulations. A Consent Order shall, however, set forth the relevant facts which form the basis for the Order.

(b) A Consent Order is a final Order of the DOE having the same force and effect as a Remedial Order issued pursuant to § 205.199B or an Order of Disallowance issued pursuant to § 205.199E, and may require one or more of the remedies authorized by § 205.1991 and § 212.84(d)(3). A Consent Order becomes effective no sooner than 30 days after publication under paragraph (c) of this section, unless (1) the DOE makes a Consent Order effective immediately, because it expressly deems it necessary in the public interest, or (2) the Consent Order involves a sum of less than $500,000 in the aggregate, excluding penalties and interest, in which case it will be effective when signed both by the person to whom it is issued and the DOE, and will not be subject to the provisions of paragraph (c) of this section unless the DOE determines otherwise. A Consent Order shall not be appealable pursuant to the provisions of 205.199C or § 205.199D and Subpart H, and shall contain an express waiver of such appeal or judicial review rights as might otherwise attach to a final Order of the DOE.

(c) When a Consent Order has been signed, both by the person to whom it is issued and the DOE, the DOE will publish notice of such Consent Order in the FEDERAL REGISTER and in a press release to be issued simultaneously therewith. The FEDERAL REGISTER

notice and the press release will state at a minimum the name of the company concerned, a brief summary of the Consent Order and other facts or allegations relevant thereto, the address and telephone number of the DOE office at which copies of the Consent Order will be available free of charge, the address to which comments on the Consent Order will be received by the DOE, and the date by which such comments should be submitted, which date will not be less than 30 days after publication of the FEDERAL REGISTER notice. After the expiration of the comment period the DOE may withdraw its agreement to the Consent Order, attempt to negotiate a modification of the Consent Order, or issue the Consent Order as signed. The DOE will publish in the FEDERAL REGISTER, and by press release, notice of any action taken on a Consent Order and such explanation of the action taken as deemed appropriate. The provisions of this paragraph shall be applicable notwithstanding the fact that a Consent Order may have been made to immediately effective pursuant paragraph (b) of this section (except in cases where the Consent Order involves sums of less than $500,000 in the aggregate, excluding penalties and interest).

(d) At any time and in accordance with the procedures of Subpart J, a Consent Order may be modified or rescinded, upon petition by the person to whom the Consent Order was issued, and may be rescinded by the DOE upon discovery of new evidence which is materially inconsistent with evidence upon which the DOE's acceptance of the Consent Order was based. Modifications of a Consent Order which is subject to public comment under the provisions of paragraph (c) of this section, which in the opinion of the DOE significantly change the terms or the impact of the original Order, shall be republished under the provisions of that paragraph.

(e) Notwithstanding the issuance of a Consent Order, the DOE may seek civil or criminal penalties or compromise civil penalties pursuant to Subpart P concerning matters passed by the Consent Order, unless

encom

the Consent Order by its terms expressly precludes the DOE from so doing.

(f) If at any time after a Consent Order becomes effective it appears to the DOE that the terms of the Consent Order have been violated, the DOE may refer such violations to the Department of Justice for appropriate action in accordance with Subpart P.

Subpart P-Investigations, Violations, Sanctions, and Judicial Actions

§ 205.200 Purpose and scope.

This subpart establishes the procedures relating to investigations, violations, sanctions, and judicial actions under this chapter, except that the provisions of this subpart shall not apply with respect to sanctions under Part 209, and with respect to investigations, violations, sanctions, and judicial actions under Part 213.

[41 FR 36647, Aug. 31, 1976]

§ 205.201 Investigations.

(a) The DOE may initiate and conduct investigations relating to the scope, nature and extent of compliance by any person with the rules, regulations or statutes of the DOE or any order, court decree or agency action relating thereto.

(b) Any duly designated and authorized representative of DOE has the authority to conduct an investigation and to take such action as he deems necessary and appropriate to the conduct of the investigation including any action pursuant to § 205.8.

(c) There are no parties, as that term is used in adjudicative proceedings, in an investigation under this subpart, and no person may intervene or participate as a matter of right in any investigation under this subpart.

(d) Any person may request the DOE to initiate an investigation pursuant to paragraph (a) of this section. A request for an investigation shall set forth the subject matter to be investigated as fully as possible and include supporting documentation and information. No particular forms or procedures are required.

(e) Any person who is requested to furnish documentary evidence or testimony in an investigation, upon written request, shall be informed of the general purpose of the investigation.

are a

(f) DOE shall not disclose information or documents that are obtained during any investigation unless (1) DOE directs or authorizes the public disclosure of the investigation; (2) the information or documents matter of public record; or (3) disclosure is not precluded by the Freedom of Information Act, 5 U.S.C. 552 and 10 CFR Part 1004. A request for confidential treatment of information for purposes of the Freedom of Information Act shall not prevent disclosure by DOE if disclosure is determined to be in the public interest and otherwise permitted by law.

(g) During the course of an investigation any person may submit at any time any document, statement of facts or memorandum of law for the purpose of explaining the person's position or furnish evidence which the person considers relevant to a matter under investigation.

(h) If facts disclosed by an investigation indicate that further action is unnecessary or unwarranted, the investigative file may be closed without prejudice to further investigation by the DOE at any time that circumstances so warrant.

(Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended, 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, and Pub. L. 95-91; Energy Supply and Environmental Coordination Act of 1974, Pub. L. 93-319, as amended; Energy Policy and Conservation Act, Pub. L. 94-163, as amended, Pub. L. 94-385, and Pub. L. 95-70; Department of Energy Organization Act, Pub. L. 95-91; E.O. 11790, 39 FR 23185; E.O. 12009, 42 FR 46267) [44 FR 23202, Apr. 19, 1979]

(a) General. Any person who violates any provision of this chapter or any order issued pursuant thereto shall be subject to penalties and sanctions as provided herein.

(1) The provisions herein for penalties and sanctions shall be deemed cumulative and not mutually exclusive.

(2) Each day that a violation of the provisions of this chapter or any order issued pursuant thereto continues shall be deemed to constitute a separate violation within the meaning of the provisions of this chapter relating to criminal fines and civil penalties.

(b) Civil Penalties. (1) Any person who violates any provision of the regulation issued under authority of the Emergency Petroleum Allocation Act of 1973, as amended, or any order issued pursuant thereto shall be subject to a civil penalty:

(i) With respect to activities relating to the production, distribution or refining of crude oil, of not more than $20,000 for each violation;

(ii) With respect to activities relating to the distribution of residual fuel oil or any refined petroleum product (other than activities entirely at the retail level), of not more than $10,000 for each violation; and

(iii) With respect to activities relating to the distribution of residual fuel oil or any refined petroleum product at the retail level or with respect to activities not otherwise referred to in paragraphs (b)(1) (i) and (ii) of this section of not more than $2,500 for each violation.

(2) The DOE may at any time refer a violation to the Department of Justice for the commencement of an action for civil penalties. When the DOE considers it to be appropriate or advisable, it may compromise, settle and collect civil penalties.

(c) Criminal Penalties. (1) Any person who willfully violates any provision of the regulation issued under authority of the Emergency Petroleum Allocation Act of 1973, as amended, or any order issued pursuant thereto may be imprisoned not more than 1 year, or shall be fined:

(i) With respect to activities relating to the production, distribution or refining of crude oil, not more than $40,000 for each violation;

(ii) With respect to activities relating to the distribution of residual fuel oil or any refined petroleum product (other than at the retail level), not more than $20,000 for each violation;

(iii) With respect to activities relating to the distribution of residual fuel oil or any refined petroleum product at the retail level or with respect to activities not otherwise referred to in paragraphs (c)(1) (i) and (ii) of this section, not more than $10,000 for each violation; or both.

(2) The DOE may at any time refer a willful violation to the Department of Justice for criminal prosecution.

(d) Definitions. For purposes of paragraphs (b) and (c) of this section:

(1) Violations with respect to "activities relating to the production, distribution or refining of crude oil" shall mean any violation by a producer or distributor of crude oil of any provision of Parts 210, 211 or 212 of Title 10, CFR, or any order issued thereunder, relating to the purchase or sale of such crude oil and any reporting requirements related thereto, or any violation by a refiner of any provision of: (i) Parts 210 or 212 of this Title, or any order issued thereunder, relating to the proper calculation, allocation or reporting of crude oil or other input costs, including both product and nonproduct costs, or relating to prices charged or paid for crude oil; or (ii) Part 211 of this Title, or any order issued thereunder, relating to the allocation of crude oil, including but not limited to all provisions of Subpart C of Part 211 and any reporting requirements related thereto.

(2) "Distribution at the retail level" shall mean sales to the ultimate consumers of residual fuel oil or refined petroleum products.

(e) Corporate Personnel. (1) Any individual director, officer or agent of a corporation who knowingly and willfully authorizes, orders or performs any of the acts or practices constituting in whole or in part a violation of any provision of the regulations issued under authority of the Emergency Petroleum Allocation Act of 1973, as

amended, or any order issued pursuant thereto, shall be subject to the penalties specified in paragraphs (b) and (c) of this section without regard to any penalties to which that corporation may be subject under paragraphs (b) and (c) of this section, except that no such individual director, officer or agent shall be subject to imprisonment under paragraph (c) of this section unless he also has knowledge, or reasonably should have known, of notice of noncompliance received by the corporation from the DOE.

(2) For purposes of this paragraph (e):

(i) "Agent" shall include any employee or other person acting on behalf of the corporation on either a temporary or permanent basis, whether or not he has authority to engage in the particular activity involved; and

(ii) "Notice of Noncompliance" shall be a Remedial Order issued under §§ 205.192 or 205.193, and a Consent Order issued under § 205.197.

(f) Other penalties. Willful concealment of material facts, or false or fictitious or fraudulent statements or representations, or willful use of any false writing or document containing false, fictitious or fraudulent statements pertaining to matters within the scope of the EPAA or FEAA by any person shall subject such person to the criminal penalties provided in 18 U.S.C. 1001 (1970).

[39 FR 35489, Oct. 1, 1974, as amended at 41 FR 19931, May 14, 1976. Redesignated at 41 FR 36647, Aug. 31, 1976, and amended at 41 FR 49627, Nov. 10, 1976]

§ 205.204 Injunctions.

Whenever it appears to the Administrator of the DOE, or his delegates, that any person has engaged, is engaged, or is about to engage in any act or practice constituting a violation of any regulation or order issued under this chapter, the Administrator, or his delegate, may request the Attorney General to bring an action in the appropriate district court of the United States to enjoin such acts or practices and, upon a proper showing, a temporary restraining order or a preliminary restraining order or a preliminary or permanent injunction shall be granted

without bond. The relief sought may include a mandatory injunction commanding any person to comply with any such order or regulation, or the return of money received in violation of any such order or regulation.

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

Subpart Q-[Reserved]

Subpart R-Office of Private Grievances and Redress

§ 205.230 Purpose and scope.

(a) This subpart establishes the procedures for the DOE Office of Private Grievances and Redress.

(b) The Office shall receive and consider petitions that seek special redress, relief or other extraordinary assistance apart from or in addition to the other proceedings described in this part. Such petitions shall include those seeking special assistance based on an assertion that the DOE or a State Office is not complying with the FEAA, EPAA, DOE regulations, orders or rulings, or otherwise.

(c) The Office also shall receive applications for exemption filed in accordance with Subpart E of this part. Such applications shall be processed by the Office in accordance with that subpart. Therefore the procedures provided in this subpart shall only be applicable to "Petitions for Special Redress or Other Relief."

§ 205.231 Who may file.

Any person aggrieved by the regulations contained in 10 CFR Chapter II may file a petition under this subpart.

§ 205.232 What to file.

The person aggrieved shall file a “Petition for Special Redress or Other Relief," which shall be clearly labeled as such both on the petition and on the outside of the envelope in which it is transmitted, and shall be in writing and signed by the person filing it. The petition shall comply with the general filing requirements stated in § 205.9 in addition to the requirements stated in this subpart.

§ 205.233 Where to file.

A petition shall be filed with the DOE Office of Private Grievances and Redress at the address provided in § 205.12.

§ 205.234 Notice.

(a) The person filing the petition, except a petition that asserts that the DOE or a State Office is not complying with the FEAA, EPAA, DOE regulations, orders or rulings or otherwise, shall send by United States mail a copy of the petition and any subsequent admendments or other documents relating to the petition, or a copy from which confidential information has been deleted in accordance with § 205.9(f), to each person who is reasonably ascertainable by the petitioner as a person who will be aggrieved by the DOE action sought. The copy of the petition shall be accompanied by a statement that the person may submit comments regarding the petition to the Office of Private Grievances and Redress within 10 days. The copy filed with the Office shall include certification to the DOE that the requirements of this paragraph have been complied with and shall include the names and addresses of each person to whom a copy of the petition was sent.

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

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

(2) Include with the petition a description of the persons or class or classes of persons to whom notice was not sent.

(3) The DOE may require the petitioner 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 ag