grieved by the DOE action sought that written comments regarding the petition will be accepted if filed within 10 days of service of that notice.

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

The petition shall contain a full and complete statement of all relevant facts pertaining to the circumstances, act or transaction that is the subject of the petition and to the DOE action sought. Such facts shall include, but not be limited to, the names and addresses of all affected persons (if reasonably ascertainable); a complete statement of the business or other reasons that justify the act or transaction, if applicable; a description of the acts or transactions that would be affected by the requested action; a full discussion of the pertinent provisions and relevant facts contained in the documents submitted with the petition, and an explanation of how the petitioner is aggrieved by the regulation. Copies of all contracts, agreements, leases, instruments, and other documents relevant to the petition shall be submitted to the DOE upon its request. When the petition 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.

§ 205.236 DOE evaluation of request.

(a) Processing. (1) The DOE may initiate an investigation of any statements in a petition 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 petition provided that the petitioner is afford

ed an opportunity to respond to all third person submissions. In evaluating a petition, 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 will advance its evaluation of the petition.

(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 petition without prejudice. If the failure to supply additional information is repeated or willful, the DOE may dismiss the petition with prejudice. If the petitioner fails to provide the notice required by § 205.234, the DOE may dismiss the petition without prejudice.

(b) Criteria. (1) The DOE will dismiss without prejudice a "Petition for Special Redress or Other Relief" if it determines that another more appropriate proceeding is provided by this part. Upon that determination, the Office will transmit the petition to the DOE Office responsible for such other proceeding and the petition thereafter will be processed as an application or request for such other DOE action. The petitioner shall be given a reasonable period of time to conform the petition to the procedural requirements of the other proceeding, if necessary.

(2) The DOE will dismiss with prejudice a "Petition for Special Redress or Other Relief" filed by a person who has exhausted his administrative remedies with respect to any proceeding provided by this part, as provided in Subpart H, and received a final order therefrom that deals with the same issue or transaction; and, similarly, will dismiss with prejudice such petition if filed by a person who has not exhausted his administrative remedies as provided in this part.

§ 205.237 Decision and response.

(a) Upon consideration of the petition and other relevant information received or obtained during the proceeding, the DOE will issue an order granting or denying the petition, except a petition regarding the DOE or a State Office. The latter petition

will be considered to be advice only and no order shall be issued in response thereto.

(b) The order denying or granting the petition shall include a written statement setting forth the relevant facts and legal basis for the order. Such order shall state that it is a final order of the DOE of which the petitioner may seek judicial review.

Subpart S-[Reserved]

Subpart T-Revocation and Suspension of Allocations and Licenses Issued Pursuant to Part 213

SOURCE: 40 FR 36557, Aug. 21, 1975. Redesignated at 40 FR 39495, Aug. 28, 1975, unless otherwise noted.

§ 205.250 Purpose and scope.

(a) This subpart establishes the procedures for the revocation or suspension by the Director of Oil Imports of any allocation or license issued under Part 213 to import crude oil, unfinished oils, or finished products.

(b) An allocation or license may be revoked or suspended under this Subpart:

(1) On grounds relating to the national security; or

(2) For violations of the terms of Proclamation No. 3279, as amended, the provisions of Part 213, or the provisions of allocations and licenses issued pursuant thereto.

(c) In any proceeding under this Subpart, where the Director intends that an allocation or license be suspended or revoked on grounds relating to the national security, the Director shall consult with the Secretaries of State, Treasury, and Defense, as appropriate.

$ 205.251 Notice.

(a) The Director may begin a proceeding under this subpart by issuing a notice that he intends to revoke or suspend any allocation or license. The notice shall contain a statement of the grounds upon which the Director intends to take such action.

(b) Within 10 days of the service of a notice under paragraph (a), the person upon whom the notice is served may file a reply with the Director at the

address provided in § 205.12. The Director may extend the 10-day period for good cause shown.

(c) The reply shall be in writing and signed by the person filing it. The reply shall contain a full and complete statement of all relevant facts pertaining to the act or transaction that is the subject of the notice. Such facts shall include a complete statement of the business or other reasons that justify the act or transaction, if appropriate; a detailed description of the act or transaction; and a full discussion of the pertinent provisions and relevant facts reflected in any documents submitted with the reply. Copies of all relevant contracts, agreements, leases, instruments, and other documents shall be submitted with the reply. When the notice pertains to only one step of a larger integrated transaction, the facts, circumstances, and other relevant information regarding the entire transaction shall be submitted.

(d) The reply 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 position taken.

(e) The reply should indicate whether the person requests or intends to request a conference regarding the notice. Any request not made at the time of the reply shall be made as soon thereafter as possible to insure that the conference is held when it will be most beneficial. A request for a conference must conform to the requirements of Subpart M of this part.

(f) If a person has not filed a reply with the Director within the 10-day period provided, and the Director has not extended the 10-day period, the person shall be deemed to have conceded the accuracy of the factual allegations and legal conclusions stated in the notice.

(g) If the Director finds, after the 10-day period provided in paragraph (b), that no grounds exist upon which to revoke or suspend the allocation or license, he shall notify, in writing, the person to whom a notice under paragraph (a) of this section, has been issued that the notice is rescinded.

§ 205.252

Revocation or suspension.

(a) If the Director finds, after the 10-day period provided in § 205.251(b), that grounds for revocation or suspension exist, he shall, as appropriate, issue an order revoking or suspending the allocation or license. The order shall include a written opinion setting forth the relevant facts and the legal basis of the order.

(b) An order issued under this section shall be effective upon issuance, in accordance with its terms, until stayed, suspended, modified, or rescinded. An order shall remain in effect notwithstanding the filing of an application to modify or rescind under Subpart J.

§ 205.253 Order for immediate revocation or suspension.

(a) Notwithstanding the provisions of §§ 205.251 and 205.252, the Director may issue an order for immediate revocation or suspension, which shall be effective upon issuance and until rescinded or suspended, if he finds, after consultation in accordance with § 205.240(c),

that such immediate

action is necessary in the interest of national security.

(b) An order of immediate revocation or suspension shall be served promptly upon the person against whom such order is issued by telex or telegram, with a copy served by registered or certified mail. The copy shall contain a written statement of the relevant facts and the legal basis for the order, including the findings required by paragraph (a) of this section.

(c) The Director may rescind or suspend an order of immediate revocation or suspension if it appears that the criteria set forth in paragraph (a) of this section are no longer satisfied. When appropriate, however, such a suspension or rescission may be accompanied by a notice issued under § 205.251.

(d) If at any time in the course of a proceeding commenced by a notice under § 205.250 the criteria set forth in paragraph (a) of this section are satisfied, the Director may issue an order for immediate revocation or suspension, even if the 10-day period for reply specified in § 205.251(b) has not expired.

§ 205.254 Appeal.

(a) No notice issued pursuant to § 205.250 shall be deemed to be an action of which there may be an administrative appeal pursuant to Subpart H.

(b) Any person to whom an order (other than a consent order under § 204.255) is issued under this subpart may file an appeal with the DOE Office of Exceptions and Appeals in accordance with Subpart H of this part. The appeal must be filed within 10 days of service of the order from which the appeal is taken.

$ 205.255 Consent orders.

(a) Notwithstanding any other provision of this Subpart, the Director may at any time resolve an outstanding proceeding of suspension or revocation with a consent order. A consent order shall be the exclusive means other than suspension or revocation for resolving a proceeding in which DOE has reason to believe that a violation of the Mandatory Oil Import Program has occurred. 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 Proclamation No. 3279, as amended, Part 213, or the provisions of allocations and licenses issued pursuant thereto have been violated, nor need it constitute a finding by the DOE that such person has violated the Proclamation, Part 213, or the provisions of any allocations of licenses. A consent order shall, however, contain a written statement setting forth the relevant facts forming the basis for the order.

(b) A consent order is a final order of the DOE, and becomes effective immediately, or upon the expiration of 30 days from its publication under paragraph (c) of this section, except that DOE may waive the provisions of subsection (c) if expressly deemed necessary in the public interest. A consent order shall not be appealable pursuant to 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 proposed consent order involving an allocation or license for 300,000 barrles per year or more (or any aggregate of these totalling that amount in the name of the same importer) has been signed, both by the person to whom it is issued and the DOE, the DOE shall publish notice of such proposed consent order in the FEDERAL REGISTER and in a press release to be issued simultaneously therewith. The FEDERAL REGISTER notice and the press release shall provide at a minimum the name of the company concerned, a brief summary of the consent order and other facts or allegations relevant thereto, and the address and telephone number of the DOE office at which copies of the proposed consent order shall be made available free of charge, the address to which comments on the proposed consent order shall be received by the DOE, and the date by which such comments should be submitted, which date shall not be less than 30 days from publication of the FEDERAL REGISTER notice. After the expiration of the comment period the DOE may withdraw its agreement to the consent order, it may attempt to negotiate a modification of the consent order, or it may issue the consent order as proposed. The DOE will publish in the FEDERAL REGISTER and by the press release notice of any action taken on a proposed consent order and it may publish such explanation of the action taken as it deems appropriate.

(d) At any time and in accordance with the procedures of Subpart J, a consent order may be modified or rescinded, at the DOE's discretion, 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.

(e) If any time after a consent order becomes effective, it appears to the DOE that the terms of the consent order have been violated, the Director may proceed in accordance with this subpart to suspend or revoke the appropriate allocations and licenses.

Subpart U-Procedures for Natural Gas and Electricity Import and Export Cases

§ 205.260 Purpose and scope.

(a) The purpose of this section is to state the procedures that will be followed by the Economic Regulatory Administration of the Department of Energy in natural gas import and export and electricity export adjudications.

(b) Definitions. As used in this subpart

"Administrator" means the Administrator of the Economic Regulatory Administration.

"Decisional employee" means the Administrator, presiding officers at adjudicatory hearings, and other employees of the Department, including consultants and contractors, who are, or may reasonably be expected to be, involved in the decisionmaking process, which includes advising the Administrator in resolving the issues in an adjudication. The term does not include those employees of the Department performing investigative or trial functions in an adjudication, unless they are specifically requested by the Administrator or his delegate to participate in the decisionmaking process. "Department" means the Department of Energy.

"Off-the-record communication" means an ex parte communication, which is an oral or written communication relevant to the merits of an adjudication and not on the record and with respect to which reasonable prior notice to all participants and opportunity to be present at, or respond to, the communication is not given, but does not include a communication relating solely to procedures which are not relevant to the merits of the adjudication.

"Interested person" means a person outside the Department whose interest in the adjudication goes beyond the general interest of the public as a whole and includes applicants, intervenors, competitors of applicants, nonprofit and public interest organizations, and other individuals and organizations, including State, local, and other public officials, with a propri

13-026 0-83--6

etary, financial, or other special interest in the outcome of the adjudication. The term does not include other Federal agencies, unless an agency is a participant in the adjudication.

"Participant" means any applicant or intervenor participating in the adjudication.

"Adjudication" means a formal proceeding employing procedures identical or similar to those required by the Administrative Procedure Act, as codified in 5 U.S.C. 551, 556, and 557, to consider an application to import or export natural gas or to export electricity.

"Reasonable prior notice" means 7 days' written notice stating the nature and purpose of the communication.

"Relevant to the merits" means a communication directly related to the merits of a specific adjudication but does not include general background discussions about an entire industry or communications of a general nature made in the course of developing agency policy for future general application.

(Natural Gas Act of 1938, Pub. L. 75-688, as amended; Federal Power Act, 41 Stat. 1063, as amended; Executive Order No. 10485, 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 Policy and Conservation Act, 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) [43 FR 39083, Sept. 1, 1978]

§ 205.270 Off-the-record communications. (a) In any proceeding which is subject to this subpart

(1) No interested person shall make an off-the-record communication or knowingly cause an off-the-record communication to be made to any decisional employee.

(2) No decisional employee shall make an off-the-record communication or knowingly cause an off-therecord communication to be made to any interested person.

(3) A decisional employee who receives, makes, or knowingly causes to be made an oral communication prohibited by this section shall prepare a memorandum stating the substance of the communication and any responses made to it.

(4) Within 48 hours of receiving, making, or knowingly causing to be made a communication prohibited by this section, a decisional employee shall deliver all written off-the-record communications and all memorandums prepared in compliance with paragraph (a)(3) of this section to the Chief of the Document Control Section, Office of Fuels Regulations, ERA (for natural gas adjudications) or to the Chief of the System Reliability and Emergency Response Branch, ERA (for electricity adjudications), who will immediately place the materials described above in the public record associated with the adjudication, available for public inspection.

(5) Upon receipt of a communication knowingly made or knowingly caused to be made by a participant in violation of this section, the Administrator or presiding officer may, to the extent consistent with the interests of justice and the applicable statutory policy, require the participant to show cause why his or her claim or interest in the adjudication should not be dismissed, denied, disregarded, or otherwise adversely affected on account of the violation.

(6) The prohibitions of this section shall apply beginning at the time an adjudication is noticed for hearing (or the person responsible for the communication acquires knowledge that it will be noticed), a protest is filed, or a petiton or notice to intervene in opposition to the requested Department action is filed, whichever occurs first.

(b) The prohibition, cited at 18 CFR 1.30(f), against participation in the decisionmaking process by Department employees who perform investigative or trial functions in an adjudication shall no longer be applicable to ERA.

(Natural Gas Act of 1938, Pub. L. 75-688, as amended; Federal Power Act, 41 Stat. 1063, as amended; Executive Order No. 10485, 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 Policy and Conservation Act, 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) [43 FR 39083, Sept. 1, 1978]