[Title 10 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2011 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
Title 10
Parts 200 to 499
Revised as of January 1, 2011
Energy
________________________
Containing a codification of documents of general
applicability and future effect
As of January 1, 2011
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 10:
Chapter II--Department of Energy 3
Finding Aids:
Table of CFR Titles and Chapters........................ 739
Alphabetical List of Agencies Appearing in the CFR...... 759
List of CFR Sections Affected........................... 769
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 10 CFR 202.21 refers
to title 10, part 202,
section 21.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, January 1, 2011), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
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those instances where a regulation published in the Federal Register
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inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
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or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
The Federal Register Index is issued monthly in cumulative form.
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the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
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in the Code of Federal Regulations.
INQUIRIES
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Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 2011.
[[Page ix]]
THIS TITLE
Title 10--Energy is composed of four volumes. The parts in these
volumes are arranged in the following order: Parts 1-50, 51-199, 200-499
and part 500-end. The first and second volumes containing parts 1-199
are comprised of chapter I--Nuclear Regulatory Commission. The third and
fourth volumes containing part 200-end are comprised of chapters II, III
and X--Department of Energy, chapter XIII--Nuclear Waste Technical
Review Board, and chapter XVII--Defense Nuclear Facilities Safety Board.
The contents of these volumes represent all current regulations codified
under this title of the CFR as of January 1, 2011.
For this volume, Bonnie Fritts was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Michael L.
White, assisted by Ann Worley.
[[Page 1]]
TITLE 10--ENERGY
(This book contains parts 200 to 499)
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Part
chapter ii--Department of Energy............................ 202
[[Page 3]]
CHAPTER II--DEPARTMENT OF ENERGY
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SUBCHAPTER A--OIL
Part Page
200-201 [Reserved]
202 Production or disclosure of material or
information............................. 5
205 Administrative procedures and sanctions..... 6
207 Collection of information................... 47
209 International voluntary agreements.......... 52
210 General allocation and price rules.......... 57
212 Mandatory petroleum price regulations....... 64
215 Collection of foreign oil supply agreement
information............................. 64
216 Materials allocation and priority
performance under contracts or orders to
maximize domestic energy supplies....... 66
218 Standby mandatory international oil
allocation.............................. 70
220 [Reserved]
221 Priority supply of crude oil and petroleum
products to the Department of Defense
under the Defense Production Act........ 76
SUBCHAPTER B--CLIMATE CHANGE
300 Voluntary Greenhouse Gas Reporting Program:
General Guidelines...................... 80
SUBCHAPTER C [RESERVED]
SUBCHAPTER D--ENERGY CONSERVATION
400-417 [Reserved]
420 State energy program........................ 102
430 Energy Conservation Program for consumer
products................................ 116
431 Energy efficiency program for certain
commercial and industrial equipment..... 418
433 Energy efficiency standards for the design
and construction of new Federal
commercial and multi-family high-rise
residential buildings................... 548
[[Page 4]]
434 Energy code for new Federal commercial and
multi-family high rise residential
buildings............................... 550
435 Energy efficiency standards for new Federal
low-rise residential buildings.......... 611
436 Federal energy management and planning
programs................................ 617
440 Weatherization assistance for low-income
persons................................. 643
445 [Reserved]
451 Renewable energy production incentives...... 664
452 Production incentives for cellulosic
biofuels................................ 669
455 Grant programs for schools and hospitals and
buildings owned by units of local
government and public care institutions. 673
456 [Reserved]
470 Appropriate Technology Small Grants Program. 704
473 Automotive propulsion research and
development............................. 709
474 Electric and Hybrid Vehicle Research,
Development, and Demonstration Program;
petroleum-equivalent fuel economy
calculation............................. 713
490 Alternative fuel transportation program..... 715
491-499 [Reserved]
[[Page 5]]
SUBCHAPTER A_OIL
PARTS 200-201 [RESERVED]
PART 202_PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION--Table of
Contents
Subpart A [Reserved]
Subpart B_Production or Disclosure in Response to Subpoenas or Demands
of Courts or Other Authorities
Sec.
202.21 Purpose and scope.
202.22 Production or disclosure prohibited unless approved by
appropriate DOE official.
202.23 Procedure in the event of a demand for production or disclosure.
202.24 Final action by the appropriate DOE official.
202.25 Procedure where a decision concerning a demand is not made prior
to the time a response to the demand is required.
202.26 Procedure in the event of an adverse ruling.
Authority: Freedom of Information Act, 5 U.S.C. 552; Emergency
Petroleum Allocation Act of 1973, Pub. L. 93-159; Federal Energy
Administration Act of 1974, Pub. L. 93-275, E.O. 11790, 39 FR 23185.
Subpart A [Reserved]
Subpart B_Production or Disclosure in Response to Subpoenas or Demands
of Courts or Other Authorities
Source: 39 FR 35472, Mar. 13, 1974, unless otherwise noted.
Sec. 202.21 Purpose and scope.
(a) This subpart sets forth the procedures to be followed when a
subpoena, order, or other demand (hereinafter referred to as a
``demand'') of a court or other authority is issued for the production
or disclosure of (1) any material contained in the files of the
Department of Energy (DOE), (2) any information relating to material
contained in the files of the DOE, or (3) any information or material
acquired by any person while such person was an employee of the DOE as a
part of the performance of his official duties or because of his
official status.
(b) For purposes of this subpart, the term ``Employee of the DOE''
includes all officers and employees of the United States appointed by,
or subject to the supervision, jurisdiction, or control of, the
Administrator of DOE.
Sec. 202.22 Production or disclosure prohibited unless approved by
appropriate DOE official.
No employee or former employee of the DOE shall, in response to a
demand of a court or other authority, produce any material contained in
the file of the DOE or disclose any information relating to material
contained in the files of the DOE, or disclose any information or
produce any material acquired as part of the performance of his official
duties or because of his official status without prior approval of the
General Counsel of DOE.
Sec. 202.23 Procedure in the event of a demand for production or disclosure.
(a) Whenever a demand is made upon an employee or former employee of
the DOE for the production of material or the disclosure of information
described in Sec. 202.21(a), he shall immediately notify the Regional
Counsel for the region where the issuing authority is located. The
Regional Counsel shall immediately request instructions from the General
Counsel of DOE.
(b) If oral testimony is sought by the demand, an affidavit, or, if
that is not feasible, a statement by the party seeking the testimony or
his attorney, setting forth a summary of the testimony desired, must be
furnished for submission by the Regional Counsel to the General Counsel.
Sec. 202.24 Final action by the appropriate DOE official.
If the General Counsel approves a demand for the production of
material or disclosure of information, he shall so notify the Regional
Counsel and such other persons as circumstances may warrant.
[[Page 6]]
Sec. 202.25 Procedure where a decision concerning a demand is not made prior
to the time a response to the demand is required.
If response to the demand is required before the instructions from
the General Counsel are received, a U.S. attorney or DOE attorney
designated for the purpose shall appear with the employee or former
employee of the DOE upon whom the demand has been made, and shall
furnish the court or other authority with a copy of the regulations
contained in this subpart and inform the court or other authority that
the demand has been, or is being, as the case may be, referred for the
prompt consideration of the appropriate DOE official and shall
respectfully request the court or authority to stay the demand pending
receipt of the requested instructions.
Sec. 202.26 Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the effect of the
demand in response to a request made in accordance with Sec. 202.25
pending receipt of instructions, of if the court or other authority
rules that the demand must be complied with irrespective of instructions
not to produce the material or disclose the information sought, the
employee or former employee upon whom the demand has been made shall
respectfully decline to comply with the demand. ``United States ex rel
Touhy v. Ragen,'' 340 U.S. 462.
PART 205_ADMINISTRATIVE PROCEDURES AND SANCTIONS--Table of Contents
Subpart A_General Provisions
Sec.
205.1 Purpose and scope.
205.2 Definitions.
205.3 Appearance before the DOE or a State Office.
205.4 Filing of documents.
205.5 Computation of time.
205.6 Extension of time.
205.7 Service.
205.8 Subpoenas, special report orders, oaths, witnesses.
205.9 General filing requirements.
205.10 Effective date of orders.
205.11 Order of precedence.
205.12 Addresses for filing documents with the DOE.
205.13 Where to file.
205.14 Ratification of prior directives, orders, and actions.
205.15 Public docket room.
Subparts B-E [Reserved]
Subpart F_Interpretation
205.80 Purpose and scope.
205.81 What to file.
205.82 Where to file.
205.83 Contents.
205.84 DOE evaluation.
205.85 Decision and effect.
205.86 Appeal.
Subparts G-J [Reserved]
Subpart K_Rulings
205.150 Purpose and scope.
205.151 Criteria for issuance.
205.152 Modification or rescission.
205.153 Comments.
205.154 Appeal.
Subpart L [Reserved]
Subpart M_Conferences, Hearings, and Public Hearings
205.170 Purpose and scope.
205.171 Conferences.
205.172 Hearings.
205.173 Public hearings.
Subpart N [Reserved]
Subpart O_Notice of Probable Violation, Remedial Order, Notice of
Proposed Disallowance, and Order of Disallowance
205.190 Purpose and scope.
205.191 [Reserved]
205.192 Proposed remedial order.
205.192A Burden of proof.
205.193 Notice of Objection.
205.193A Submission of ERA supplemental information.
205.194 Participants; official service list.
205.195 Filing and service of all submissions.
205.196 Statement of objections.
205.197 Response to statement of objections; reply.
205.198 Discovery.
205.198A Protective order.
205.199 Evidentiary hearing.
205.199A Hearing for the purpose of oral argument only.
205.199B Remedial order.
205.199C Appeals of remedial order to FERC.
205.199D-205.199E [Reserved]
205.199F Ex parte communications.
205.199G Extension of time; Interim and Ancillary Orders.
205.199H Actions not subject to administrative appeal.
[[Page 7]]
205.199I Remedies.
205.199J Consent order.
Subparts P-T [Reserved]
Subpart U_Procedures for Electricity Export Cases
205.260 Purpose and scope.
205.261-205.269 [Reserved]
205.270 Off-the-record communications.
Subpart V_Special Procedures for Distribution of Refunds
205.280 Purpose and scope.
205.281 Petition for implementation of special refund procedures.
205.282 Evaluation of petition by the Office of Hearings and Appeals.
205.283 Applications for refund.
205.284 Processing of applications.
205.285 Effect of failure to file a timely application.
205.286 Limitations on amount of refunds.
205.287 Escrow accounts, segregated funds and other guarantees.
205.288 Interim and ancillary orders.
Subpart W_Electric Power System Permits and Reports; Applications;
Administrative Procedures and Sanctions
Application for Authorization to Transmit Electric Energy to a Foreign
Country
205.300 Who shall apply.
205.301 Time of filing.
205.302 Contents of application.
205.303 Required exhibits.
205.304 Other information.
205.305 Transferability.
205.306 Authorization not exclusive.
205.307 Form and style; number of copies.
205.308 Filing schedule and annual reports.
205.309 Filing procedures and fees.
Application for Presidential Permit Authorizing the Construction,
Connection, Operation, and Maintenance of Facilities for Transmission of
Electric Energy at International Boundaries
205.320 Who shall apply.
205.321 Time of filing.
205.322 Contents of application.
205.323 Transferability.
205.324 Form and style; number of copies.
205.325 Annual report.
205.326 Filing procedures and fees.
205.327 Other information.
205.328 Environmental requirements for Presidential Permits--Alternative
1.
205.329 Environmental requirements for Presidential Permits--Alternative
2.
Report of Major Electric Utility System Emergencies
205.350 General purpose.
205.351 Reporting requirements.
205.352 Information to be reported.
205.353 Special investigation and reports.
Emergency Interconnection of Electric Facilities and the Transfer of
Electricity to Alleviate an Emergency Shortage of Electric Power
205.370 Applicability.
205.371 Definition of emergency.
205.372 Filing procedures; number of copies.
205.373 Application procedures.
205.374 Responses from ``entities'' designated in the application.
205.375 Guidelines defining inadequate fuel or energy supply.
205.376 Rates and charges.
205.377 Reports.
205.378 Disconnection of temporary facilities.
205.379 Application for approval of the installation of permanent
facilities for emergency use only.
Authority: Emergency Petroleum Allocation Act of 1973, Pub. L. 93-
159; Federal Energy Administration Act of 1974, Pub. L. 93-275 (88 Stat.
96; E.O. 11790, 39 FR 23185); 42 U.S.C. 7101 et seq., unless otherwise
noted.
Source: 39 FR 35489, Oct. 1, 1974, unless otherwise noted.
Subpart A_General Provisions
Sec. 205.1 Purpose and scope.
This part establishes the procedures to be utilized and identifies
the sanctions that are available in proceedings before the Department of
Energy and State Offices, in accordance with parts 209 through 214 of
this chapter. Any exception, exemption, appeal, stay, modification,
recession, redress or resolution of private grievance sought under the
authority of 42 U.S.C. 7194 shall be governed by the procedural rules
set forth in 10 CFR part 1003.
[61 FR 35114, July 5, 1996]
Sec. 205.2 Definitions.
The definitions set forth in other parts of this chapter shall apply
to this part, unless otherwise provided. In addition, as used in this
part, the term:
Action means an order, interpretation, notice of probable violation
or ruling issued, or a rulemaking undertaken by the DOE or, as
appropriate, by a State Office.
[[Page 8]]
Adjustment means a modification of the base period volume or other
measure of allocation entitlement in accordance with part 211 of this
chapter.
Aggrieved, for purposes of administrative proceedings, describes and
means a person with an interest sought to be protected under the FEAA,
EPAA, or Proclamation No. 3279, as amended, who is adversely affected by
an order or interpretation issued by the DOE or a State Office.
Appropriate Regional Office or appropriate State Office means the
office located in the State or DOE region in which the product will be
physically delivered.
Assignment means an action designating that an authorized purchaser
be supplied at a specified entitlement level by a specified supplier.
Conference means an informal meeting, incident to any proceeding,
between DOE or State officials and any person aggrieved by that
proceeding.
Consent order means a document of agreement between DOE and a person
prohibiting certain acts, requiring the performance of specific acts or
including any acts which DOE could prohibit or require pursuant to Sec.
205.195.
Duly authorized representative means a person who has been
designated to appear before the DOE or a State Office in connection with
a proceeding on behalf of a person interested in or aggrieved by that
proceeding. Such appearance may consist of the submission of
applications, petitions, requests, statements, memoranda of law, other
documents, or of a personal appearance, verbal communication, or any
other participation in the proceeding.
EPAA means the Emergency Petroleum Allocation Act of 1973 (Pub. L.
93-159).
EPCA means the Energy Policy and Conservation Act (Pub. L. 94-163).
Exception means the waiver or modification of the requirements of a
regulation, ruling or generally applicable requirement under a specific
set of facts.
Exemption means the release from the obligation to comply with any
part or parts, or any subpart thereof, of this chapter.
DOE means the Department of Energy, created by the FEAA and includes
the DOE National Office and Regional Offices.
FEAA means the Federal Energy Administration Act of 1974 (Pub. L.
93-275).
Federal legal holiday means New Year's Day, Washington's Birthday,
Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day,
Thanksgiving Day, Christmas Day, and any other day appointed as a
national holiday by the President or the Congress of the United States.
Interpretation means a written statement issued by the General
Counsel or his delegate or Regional Counsel, in response to a written
request, that applies the regulations, rulings, and other precedents
previously issued, to the particular facts of a prospective or completed
act or transaction.
Notice of probable violation means a written statement issued to a
person by the DOE that states one or more alleged violations of the
provisions of this chapter or any order issued pursuant thereto.
Order means a written directive or verbal communication of a written
directive, if promptly confirmed in writing, issued by the DOE or a
State Office. It may be issued in response to an application, petition
or request for DOE action or in response to an appeal from an order, or
it may be a remedial order or other directive issued by the DOE or a
State Office on its own initiative. A notice of probable violation is
not an order. For purposes of this definition a ``written directive''
shall include telegrams, telecopies and similar transcriptions.
Person means any individual, firm, estate, trust, sole
proprietorship, partnership, association, company, joint-venture,
corporation, governmental unit or instrumentality thereof, or a
charitable, educational or other institution, and includes any officer,
director, owner or duly authorized representative thereof.
Proceeding means the process and activity, and any part thereof,
instituted by the DOE or a State Office, either on its own initiative or
in response to an application, complaint, petition or request submitted
by a person, that may lead to an action by the DOE or a State Office.
[[Page 9]]
Remedial order means a directive issued by the DOE requiring a
person to cease a violation or to eliminate or to compensate for the
effects of a violation, or both.
Ruling means an official interpretative statement of general
applicability issued by the DOE General Counsel and published in the
Federal Register that applies the DOE regulations to a specific set of
circumstances.
State Office means a State Office of Petroleum Allocation certified
by the DOE upon application pursuant to part 211 of this chapter.
Throughout this part the use of a word or term in the singular shall
include the plural and the use of the male gender shall include the
female gender.
(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 40 FR 36555, Aug. 21, 1975; 40
FR 36761, Aug. 22, 1975; 41 FR 36647, Aug. 31, 1976; 43 FR 14437, Apr.
6, 1978]
Sec. 205.3 Appearance before the DOE or a State Office.
(a) A person may make an appearance, including personal appearances
in the discretion of the DOE, and participate in any proceeding
described in this part on his own behalf or by a duly authorized
representative. Any application, appeal, petition, request or complaint
filed by a duly authorized representative shall contain a statement by
such person certifying that he is a duly authorized representative,
unless a DOE form requires otherwise. Falsification of such
certification will subject such person to the sanctions stated in 18
U.S.C. 1001 (1970).
(b) Suspension and disqualification: The DOE or a State Office may
deny, temporarily or permanently, the privilege of participating in
proceedings, including oral presentation, to any individual who is found
by the DOE--
(1) To have made false or misleading statements, either verbally or
in writing;
(2) To have filed false or materially altered documents, affidavits
or other writings;
(3) To lack the specific authority to represent the person seeking a
DOE or State Office action; or
(4) To have engaged in or to be engaged in contumacious conduct that
substantially disrupts a proceeding.
Sec. 205.4 Filing of documents.
(a) Any document, including, but not limited to, an application,
request, complaint, petition and other documents submitted in connection
therewith, filed with the DOE or a State Office under this chapter is
considered to be filed when it has been received by the DOE National
Office, a Regional Office or a State Office. Documents transmitted to
the DOE must be addressed as required by Sec. 205.12. All documents and
exhibits submitted become part of an DOE or a State Office file and will
not be returned.
(b) Notwithstanding the provisions of paragraph (a) of this section,
an appeal, a response to a denial of an appeal or application for
modification or recision in accordance with Sec. Sec. 205.106(a)(3) and
205.135(a)(3), respectively, a reply to a notice of probable violation,
the appeal of a remedial order or remedial order for immediate
compliance, a response to denial of a claim of confidentiality, or a
comment submitted in connection with any proceeding transmitted by
registered or certified mail and addressed to the appropriate office is
considered to be filed upon mailing.
(c) Hand-delivered documents to be filed with the Office of
Exceptions and Appeals shall be submitted to Room 8002 at 2000 M Street,
NW., Washington, D.C. All other hand-delivered documents to be filed
with the DOE National Office shall be submitted to the Executive
Secretariat at 12th and Pennsylvania Avenue, NW., Washington, D.C. Hand-
delivered documents to be filed with a Regional Office shall be
submitted to the Office of the Regional Administrator. Hand-delivered
documents to be filed with a State Office shall be submitted to the
office of
[[Page 10]]
the chief executive officer of such office.
(d) Documents received after regular business hours are deemed filed
on the next regular business day. Regular business hours for the DOE
National Office are 8 a.m. to 4:30 p.m. Regular business hours for a
Regional Office or a State Office shall be established independently by
each.
Sec. 205.5 Computation of time.
(a) Days. (1) Except as provided in paragraph (b) of this section,
in computing any period of time prescribed or allowed by these
regulations or by an order of the DOE or a State Office, the day of the
act, event, or default from which the designated period of time begins
to run is not to be included. The last day of the period so computed is
to be included unless it is a Saturday, Sunday, or Federal legal holiday
in which event the period runs until the end of the next day that is
neither a Saturday, Sunday, nor a Federal legal holiday.
(2) Saturdays, Sundays or intervening Federal legal holidays shall
be excluded from the computation of time when the period of time allowed
or prescribed is 7 days or less.
(b) Hours. If the period of time prescribed in an order issued by
the DOE or a State Office is stated in hours rather than days, the
period of time shall begin to run upon actual notice of such order,
whether by verbal or written communication, to the person directly
affected, and shall run without interruption, unless otherwise provided
in the order, or unless the order is stayed, modified, suspended or
rescinded. When a written order is transmitted by verbal communication,
the written order shall be served as soon thereafter as is feasible.
(c) Additional time after service by mail. Whenever a person is
required to perform an act, to cease and desist therefrom, or to
initiate a proceeding under this part within a prescribed period of time
after issuance to such person of an order, notice, interpretation or
other document and the order, notice, interpretation or other document
is served by mail, 3 days shall be added to the prescribed period.
Sec. 205.6 Extension of time.
When a document is required to be filed within a prescribed time, an
extension of time to file may be granted by the office with which the
document is required to be filed upon good cause shown.
Sec. 205.7 Service.
(a) All orders, notices, interpretations or other documents required
to be served under this part shall be served personally or by registered
or certified mail or by regular United States mail (only when service is
effected by the DOE or a State Office), except as otherwise provided.
(b) Service upon a person's duly authorized representative shall
constitute service upon that person.
(c) Service by registered or certified mail is complete upon
mailing. Official United States Postal Service receipts from such
registered or certified mailing shall constitute prima facie evidence of
service.
Sec. 205.8 Subpoenas, special report orders, oaths, witnesses.
(a) In this section the following terms have the definitions
indicated unless otherwise provided.
(1) ``DOE Official'' means the Secretary of the Department of
Energy, the Administrator of the Economic Regulatory Administration, the
Administrator of Energy Information Administration, the General Counsel
of the Department of Energy, the Special Counsel for Compliance, the
Assistant Administrator for Enforcement, the Director of the Office of
Hearings and Appeals, or the duly authorized delegate of any of the
foregoing officials.
(2) ``SRO'' means a Special Report Order issued pursuant to
paragraph (b) of this section.
(b) (1) In accordance with the provisions of this section and as
otherwise authorized by law, a DOE Official may sign, issue and serve
subpoenas; administer oaths and affirmations; take sworn testimony;
compel attendance of and sequester witnesses; control dissemination of
any record of testimony taken pursuant to this section; subpoena and
reproduce books, papers, correspondence, memoranda, contracts
agreements, or other relevant records
[[Page 11]]
or tangible evidence including, but not limited to, information retained
in computerized or other automated systems in possession of the
subpoenaed person. Unless otherwise provided by Subpart O, the
provisions of this section apply to subpoenas issued by the office of
Hearings and Appeals with respect to matters in proceedings before it.
(2) A DOE Official may issue a Special Report Order requiring any
person subject to the jurisdiction of the ERA to file a special report
providing information relating to DOE regulations, including but not
limited to written answers to specific questions. The SRO may be in
addition to any other reports required by this chapter.
(3) The DOE Official who issues a subpoena or SRO pursuant to this
section, for good cause shown, may extend the time prescribed for
compliance with the subpoena or SRO and negotiate and approve the terms
of satisfactory compliance.
(4) Prior to the time specified for compliance, but in no event more
than 10 days after the date of service of the subpoena or SRO, the
person upon whom the document was served may file a request for review
of the subpoena or SRO with the DOE Official who issued the document.
The DOE Official then shall forward the request to his supervisor who
shall provide notice of receipt to the person requesting review. The
supervisor or his designee may extend the time prescribed for compliance
with the subpoena or SRO and negotiate and approve the terms of
satisfactory compliance.
(5) If the subpoena or SRO is not modified or rescinded within 10
days of the date of the supervisor's notice of receipt, (i) the subpoena
or SRO shall be effective as issued; and (ii) the person upon whom the
document was served shall comply with the subpoena or SRO within 20 days
of the date of the supervisor's notice of receipt, unless otherwise
notified in writing by the supervisor or his designee.
(6) There is no administrative appeal of a subpoena or SRO.
(c) (1) A subpoena or SRO shall be served upon a person named in the
document by delivering a copy of the document to the person named.
(2) Delivery of a copy of the document to a natural person may be
made by:
(i) Handing it to the person;
(ii) Leaving it at the person's office with the person in charge of
the office;
(iii) Leaving it at the person's dwelling or usual place of abode
with a person of suitable age and discretion who resides there;
(iv) Mailing it to the person by registered or certified mail, at
his last known address; or
(v) Any method that provides the person with actual notice prior to
the return date of the document.
(3) Delivery of a copy of the document to a person who is not a
natural person may be made by:
(i) Handing it to a registered agent of the person;
(ii) Handing it to any officer, director, or agent in charge of any
office of such person;
(iii) Mailing it to the last known address of any registered agent,
officer, director, or agent in charge of any office of the person by
registered or certified mail, or
(iv) Any method that provides any registered agent, officer,
director, or agent in charge of any office of the person with actual
notice of the document prior to the return date of the document.
(d)(1) A witness subpoenaed by the DOE shall be paid the same fees
and mileage as paid to a witness in the district courts of the United
States.
(2) If in the course of a proceeding conducted pursuant to subpart M
or O, a subpoena is issued at the request of a person other than an
officer or agency of the United States, the witness fees and mileage
shall be paid by the person who requested the subpoena. However, at the
request of the person, the witness fees and mileage shall be paid by the
DOE if the person shows:
(i) The presence of the subpoenaed witness will materially advance
the proceeding; and
(ii) The person who requested that the subpoena be issued would
suffer a serious hardship if required to pay the witness fees and
mileage. The DOE Official issuing the subpoena shall make the
determination required by this subsection.
[[Page 12]]
(e) If any person upon whom a subpoena or SRO is served pursuant to
this section, refuses or fails to comply with any provision of the
subpoena or SRO, an action may be commenced in the United States
District Court to enforce the subpoena or SRO.
(f) (1) Documents produced in response to a subpoena shall be
accompanied by the sworn certification, under penalty of perjury, of the
person to whom the subpoena was directed or his authorized agent that
(i) a diligent search has been made for each document responsive to the
subpoena, and (ii) to the best of his knowledge, information, and belief
each document responsive to the subpoena is being produced unless
withheld on the grounds of privilege pursuant to paragraph (g) of this
section.
(2) Any information furnished in response to an SRO shall be
accompanied by the sworn certification under penalty of perjury of the
person to whom it was directed or his authorized agent who actually
provides the information that (i) a diligent effort has been made to
provide all information required by the SRO, and (ii) all information
furnished is true, complete, and correct unless withheld on grounds of
privilege pursuant to paragraph (g) of this section.
(3) If any document responsive to a subpoena is not produced or any
information required by an SRO is not furnished, the certification shall
include a statement setting forth every reason for failing to comply
with the subpoena or SRO.
(g) If a person to whom a subpoena or SRO is directed withholds any
document or information because of a claim of attorney-client or other
privilege, the person submitting the certification required by paragraph
(f) of this section also shall submit a written list of the documents or
the information withheld indicating a description of each document or
information, the date of the document, each person shown on the document
as having received a copy of the document, each person shown on the
document as having prepared or been sent the document, the privilege
relied upon as the basis for withholding the document or information,
and an identification of the person whose privilege is being asserted.
(h)(1) If testimony is taken pursuant to a subpoena, the DOE
Official shall determine whether the testimony shall be recorded and the
means by which the testimony is recorded.
(2) A witness whose testimony is recorded may procure a copy of his
testimony by making a written request for a copy and paying the
appropriate fees. However, the DOE official may deny the request for
good cause. Upon proper identification, any witness or his attorney has
the right to inspect the official transcript of the witness' own
testimony.
(i) The DOE Official may sequester any person subpoenaed to furnish
documents or give testimony. Unless permitted by the DOE Official,
neither a witness nor his attorney shall be present during the
examination of any other witnesses.
(j)(1) Any witness whose testimony is taken may be accompanied,
represented and advised by his attorney as follows:
(i) Upon the initiative of the attorney or witness, the attorney may
advise his client, in confidence, with respect to the question asked his
client, and if the witness refuses to answer any question, the witness
or his attorney is required to briefly state the legal grounds for such
refusal; and
(ii) If the witness claims a privilege to refuse to answer a
question on the grounds of self-incrimination, the witness must assert
the privilege personally.
(k) The DOE Official shall take all necessary action to regulate the
course of testimony and to avoid delay and prevent or restrain
contemptuous or obstructionist conduct or contemptuous language. DOE may
take actions as the circumstances may warrant in
[[Page 13]]
regard to any instances where any attorney refuses to comply with
directions or provisions of this section.
(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 23201, Apr. 19, 1979]
Sec. 205.9 General filing requirements.
(a) Purpose and scope. The provisions of this section shall apply to
all documents required or permitted to be filed with the DOE or with a
State Office.
(b) Signing. All applications, petitions, requests, appeals,
comments or any other documents that are required to be signed, shall be
signed by the person filing the document or a duly authorized
representative. Any application, appeal, petition, request, complaint or
other document filed by a duly authorized representative shall contain a
statement by such person certifying that he is a duly authorized
representative, unless an DOE form other wise requires. (A false
certification is unlawful under the provisions of 18 U.S.C. 1001
(1970)).
(c) Labeling. An application, petition, or other request for action
by the DOE or a State Office should be clearly labeled according to the
nature of the action involved (e.g., ``Application for Assignment'')
both on the document and on the outside of the envelope in which the
document is transmitted.
(d) Obligation to supply information. A person who files an
application, petition, complaint, appeal or other request for action is
under a continuing obligation during the proceeding to provide the DOE
or a State Office with any new or newly discovered information that is
relevant to that proceeding. Such information includes, but is not
limited to, information regarding any other application, petition,
complaint, appeal or request for action that is subsequently filed by
that person with any DOE office or State Office.
(e) The same or related matters. A person who files an application,
petition, complaint, appeal or other request for action by the DOE or a
State Office shall state whether, to the best knowledge of that person,
the same or related issue, act or transaction 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
any proceeding described in this part. In addition, the person shall
state whether contact has been made by the person or one acting on his
behalf with any person who is employed by the DOE or any State Office
with regard to the same issue, act or transaction or a related issue,
act or transaction arising out of the same factual situation; 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.
(f) Request for confidential treatment. (1) If any person filing a
document with the DOE or a State Office claims that some or all the
information contained in the document is exempt from the mandatory
public disclosure requirements of the Freedom of Information Act (5
U.S.C. 552 (1970)), is information referred to in 18 U.S.C. 1905 (1970),
or is otherwise exempt by law from public disclosure, and if such person
requests the DOE or a State Office not to disclose such information,
such person shall file together with the document a second copy of the
document from which has been deleted the information for which such
person wishes to claim confidential treatment. The person shall indicate
in the original document that it is confidential or contains
confidential information and may file a statement specifying the
justification for non-disclosure of the information for which
confidential treatment is claimed. If the person states that the
[[Page 14]]
information comes within the exception in 5 U.S.C. 552(b)(4) for trade
secrets and commercial or financial information, such person shall
include a statement specifying why such information is privileged or
confidential. If the person filing a document does not submit a second
copy of the document with the confidential information deleted, the DOE
or a State Office may assume that there is no objection to public
disclosure of the document in its entirety.
(2) The DOE or a State Office retains the right to make its own
determination with regard to any claim of confidentiality. Notice of the
decision by the DOE or a State Office to deny such claim, in whole or in
part, and an opportunity to respond shall be given to a person claiming
confidentiality of information no less than five days prior to its
public disclosure.
(g) Separate applications, petitions or requests. Each application,
petition or request for DOE action shall be submitted as a separate
document, even if the applications, petitions, or requests deal with the
same or a related issue, act or transaction, or are submitted in
connection with the same proceeding.
Sec. 205.10 Effective date of orders.
Any order issued by the DOE or a State Office under this chapter is
effective as against all persons having actual notice thereof upon
issuance, in accordance with its terms, unless and until it is stayed,
modified, suspended, or rescinded. An order is deemed to be issued on
the date, as specified in the order, on which it is signed by an
authorized representative of the DOE or a State Office, unless the order
provides otherwise.
Sec. 205.11 Order of precedence.
(a) If there is any conflict or inconsistency between the provisions
of this part and any other provision of this chapter, the provisions of
this part shall control with respect to procedure.
(b) Notwithstanding paragraph (a) of this section, subpart I of part
212 of this chapter shall control with respect to prenotification and
reporting and subpart J of part 212 of this chapter shall control with
respect to accounting and financial reporting requirements.
Sec. 205.12 Addresses for filing documents with the DOE.
(a) All applications, requests, petitions, appeals, reports, DOE or
FEO forms, written communications and other documents to be submitted to
or filed with the DOE National Office in accordance with this chapter
shall be addressed as provided in this section. The DOE National Office
has facilities for the receipt of transmissions via TWX and FAX. The FAX
is a 3M full duplex 4 or 6 minute (automatic) machine.
------------------------------------------------------------------------
FAX Numbers TWX Numbers
------------------------------------------------------------------------
(202) 254-6175............................ (701) 822-9454
(202) 254-6461............................ (701) 822-9459
------------------------------------------------------------------------
(1) Documents for which a specific address and/or code number is not
provided in accordance with paragraphs (a)(2) through (7) of this
section, shall be addressed as follows: Department of Energy, Attn:
(name of person to receive document, if known, or subject), Washington,
DC 20461.
(2) Documents to be filed with the Office of Exceptions and Appeals,
as provided in this part or otherwise, shall be addressed as follows.
Office of Exceptions and Appeals, Department of Energy, Attn: (name of
person to receive document, if known, and/or labeling as specified in
Sec. 205.9(c)), Washington, DC 20461.
(3) Documents to be filed with the Office of General Counsel, as
provided in this part or otherwise, shall be addressed as follows:
Office of the General Counsel, U.S. Department of Energy, Attn: (name of
person to receive document, if known, and labeling as specified in Sec.
205.9(c)), 1000 Independence Avenue, Washington, DC 20585.
(4) Documents to be filed with the Office of Private Grievances and
Redress, as provided in this part or otherwise, shall be addressed as
follows: Office of Private Grievances and Redress, Department of Energy,
Attn: (name of person to receive document, if known and/or labeling as
specified in Sec. 205.9(c)), Washington, DC 20461.
(5) All other documents filed, except those concerning price (see
paragraph
[[Page 15]]
(a)(6) of this section), those designated as DOE or FEO forms (see
paragraph (a)(7) of this section), and ``Surplus Product Reports'' (see
paragraph (a)(8) of this section), but including those pertaining to
compliance and allocation (adjustment and assignment) of allocated
products, are to be identified by one of the code numbers stated below
and addressed as follows: Department of Energy, Code----, labeling as
specified in Sec. 205.9(c), Washington, DC 20461.
Code Numbers
------------------------------------------------------------------------
Code
------------------------------------------------------------------------
Product:
Crude oil................................................. 10
Naphtha and gas oil....................................... 15
Propane, butane and natural gasoline...................... 25
Other products............................................ 30
Bunker fuel............................................... 40
Residual fuel (nonutility)................................ 50
Motor gasoline............................................ 60
Middle distillates........................................ 70
Aviation fuels............................................ 80
Submissions by specific entities:
Electric utilities........................................ 45
Department of Defense..................................... 55
------------------------------------------------------------------------
(6) Documents pertaining to the price of covered products, except
those to be submitted to other offices as provided in this part, shall
be addressed to the Department of Energy, Code 1000, Attn: (name of
person to receive document, if known, and/or labeling as specified in
Sec. 205.9(c)), Washington, DC 20461.
(7) Documents designated as DOE or FEO forms shall be submitted in
accordance with the instructions stated in the form.
(8) ``Surplus Product Reports'' shall be submitted to the Department
of Energy, Post Office Box 19407, Washington, DC 20036.
(9) Documents to be filed with the Director of Oil Imports, as
provided in this part or otherwise, shall be addressed as follows:
Director of Oil Imports, Department of Energy, P.O. Box 7414,
Washington, DC 20044.
(10) Petitions for rulemaking to be filed with the Economic
Regulatory Administration National Office shall be addressed as follows:
Economic Regulatory Administration, Attn: Assistant Administrator for
Regulations and Emergency Planning (labeled as ``Petition for
Rulemaking,'') 2000 M Street, N.W., Washington, DC 20461.
(b) All reports, applications, requests, notices, complaints,
written communications and other documents to be submitted to or filed
with an DOE Regional Office in accordance with this chapter shall be
directed to one of the following addresses, as appropriate:
Region 1
Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont;
Regional Office, Department of Energy, 150 Causeway Street, Boston,
Massachusetts 02114.
Region 2
New Jersey, New York, Puerto Rico, Virgin Islands; Regional Office,
Department of Energy, 26 Federal Plaza, New York, New York 10007.
Region 3
Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West
Virginia; Regional Office, Department of Energy, Federal Office
Building, 1421 Cherry Street, Philadelphia, Pennsylvania 19102.
Region 4
Alabama, Canal Zone, Florida, Georgia, Kentucky, Mississippi, North
Carolina, South Carolina; Regional Office, Department of Energy, 1655
Peachtree Street NW., Atlanta, Georgia 30309.
Region 5
Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin; Regional
Office, Department of Energy, 175 West Jackson Street, Chicago, Illinois
60604.
Region 6
Arkansas, Louisiana, New Mexico, Oklahoma, Texas; Regional Office,
Department of Energy, 212 North Saint Paul Street, Dallas, Texas 75201.
Region 7
Iowa, Kansas, Missouri, Nebraska; Regional Office, Department of Energy,
Federal Office Building, P.O. Box 15000, 112 East 12th Street, Kansas
City, Missouri 64106.
Region 8
Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming; Regional
Office, Department of Energy, Post Office Box 26247, Belmar Branch,
Denver, Colorado 80226.
Region 9
American Samoa, Arizona, California, Guam, Hawaii, Nevada, Trust
Territory of the Pacific Islands; Regional Office, Department
[[Page 16]]
of Energy, 111 Pine Street, San Francisco, California 94111.
Region 10
Alaska, Idaho, Oregon, Washington; Regional Office, Department of
Energy, Federal Office Building, 909 First Avenue, Room 3098, Seattle,
Washington 98104.
(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. 94-385; 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 Policy and
Conservation Act, 42 U.S.C. 6201 et seq., Pub. L. 94-163, as amended,
Pub. L. 94-385, and Pub. L. 95-70; Department of Energy Organization
Act, 42 U.S.C. 7101 et seq., Pub. L. 95-91; E.O. 11790, 39 FR 23185;
E.O. 12009, 42 FR 46267)
[39 FR 35489, Oct. 1, 1974, as amended at 40 FR 36555, Aug. 21, 1975; 45
FR 37684, June 4, 1980]
Sec. 205.13 Where to file.
(a) Except as otherwise specifically provided in other subparts of
this part, all documents to be filed with the ERA pursuant to this part
shall be filed with the appropriate ERA Regional Office (unless
otherwise specified in part 211 of this chapter), except that all
documents shall be filed with the ERA National Office that relate to:
(1) The allocation and pricing of crude oil pursuant to subpart C of
part 211 and part 212 of this chapter;
(2) Refinery yield controls pursuant to subpart C of part 211 of
this chapter;
(3) The pricing of propane, butane and natural gasoline pursuant to
part 212 of this chapter and the allocation of butane and natural
gasoline pursuant to part 211 of this chapter;
(4) The allocation and pricing of middle distillate fuels pursuant
to subpart G of part 211 and part 212 of this chapter, filed by electric
utilities;
(5) The allocation and pricing of aviation fuel pursuant to subpart
H of part 211 and part 212 of this chapter, filed by civil air carriers
(except air taxi/commercial operators);
(6) The allocation and pricing of residual fuel oil pursuant to
subpart I of part 211 and part 212 of this chapter, filed by electric
utilities;
(7) The allocation and pricing of naphtha and gas oil pursuant to
subpart J of part 211 and part 212 of this chapter;
(8) The allocation and pricing of other products pursuant to subpart
K of part 211 and part 212 of this chapter;
(9) An application for an exemption under subpart E of this part;
requests for a rulemaking proceeding under subpart L of this part or for
the issuance of a ruling under subpart K of this part; and petitions to
the Office of Private Grievances and Redress under subpart R of this
part;
(10) The pricing of products pursuant to part 212 of this chapter,
filed by a refiner; and
(11) The allocation of crude oil and other allocated products to
meet Department of Defense needs pursuant to part 211 of this chapter.
(12) The allocation of crude oil and other allocated products to be
utilized as feedstock in a synthetic natural gas plant, pursuant to
Sec. 211.29.
(13) Allocations, fee-paid and fee-exempt licenses issued pursuant
to part 213 of this chapter.
(b) Applications by end-users and wholesale purchasers for an
allocation under the state set-aside system in accordance with Sec.
211.17 shall be filed with the appropriate State Office.
(c) Applications to a State Office or a DOE Regional Office shall be
directed to the office located in the state or region in which the
allocated product will be physically delivered. An applicant doing
business in more than one state or region must apply separately to each
State or region in which a product will be physically delivered, unless
the State Offices or Regional Offices involved agree otherwise.
[39 FR 35489, Oct. 1, 1974, as amended at 39 FR 36571, Oct. 11, 1974; 39
FR 39022, Nov. 5, 1974; 40 FR 28446, July 7, 1975; 40 FR 36555, Aug. 21,
1975; 44 FR 60648, Oct. 19, 1979]
Sec. 205.14 Ratification of prior directives, orders, and actions.
All interpretations, orders, notices of probable violation or other
directives issued, all proceedings initiated, and all other actions
taken in accordance with part 205 as it existed prior to the effective
date of this amendment, are hereby confirmed and ratified, and shall
remain in full force and effect as if issued under this amended part
205, unless or until they are altered,
[[Page 17]]
amended, modified or rescinded in accordance with the provisions of this
part.
Sec. 205.15 Public docket room.
There shall be established at the DOE National Office, 12th and
Pennsylvania Avenue, NW., Washington, DC, a public docket room in which
shall be made available for public inspection and copying:
(a) A list of all persons who have applied for an exception, an
exemption, or an appeal, and a digest of each application;
(b) Each decision and statement setting forth the relevant facts and
legal basis of an order, with confidential information deleted, issued
in response to an application for an exception or exemption or at the
conclusion of an appeal;
(c) The comments received during each rulemaking proceeding, with a
verbatim transcript of the public hearing if such a public hearing was
held; and
(d) Any other information required by statute to be made available
for public inspection and copying, and any information that the DOE
determines should be made available to the public.
Subparts B-E [Reserved]
Subpart F_Interpretation
Sec. 205.80 Purpose and scope.
(a) This subpart establishes the procedures for the filing of a
formal request for an interpretation and for the consideration of such
request. Responses, which may include verbal or written responses to
general inquiries or to other than formal written requests for
interpretation filed with the General Counsel or his delegate or a
Regional Counsel, are not interpretations and merely provide general
information.
(b) A request for interpretation that includes, or could be
construed to include an application for an exception or an exemption may
be treated solely as a request for interpretation and processed as such.
(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]
Sec. 205.81 What to file.
(a) A person filing under this subpart shall file a ``Request for
Interpretation,'' which should be clearly labeled as such both on the
request and on the outside of the envelope in which the request is
transmitted, and shall be in writing and signed by the person filing the
request. The person filing the request shall comply with the general
filing requirements stated in Sec. 205.9 in addition to the
requirements stated in this subpart.
(b) If the person filing the request wishes to claim confidential
treatment for any information contained in the request or other
documents submitted under this subpart, the procedures set out in Sec.
205.9(f) shall apply.
Sec. 205.82 Where to file.
A request for interpretation shall be filed with the General Counsel
or his delegate or with the appropriate Regional Counsel at the address
provided in Sec. 205.12.
(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; 43
FR 17803, Apr. 26, 1978]
Sec. 205.83 Contents.
(a) The request shall contain a full and complete statement of all
relevant facts pertaining to the circumstances, act or transaction that
is the subject of the request and to the DOE action
[[Page 18]]
sought. Such facts shall include the names and addresses of all affected
persons (if reasonably ascertainable) and a full discussion of the
pertinent provisions and relevant facts contained in the documents
submitted with the request. Copies of all relevant contracts,
agreements, leases, instruments, and other documents shall be submitted
with the request. When the request 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.
(b) The request for interpretation 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 interpretation sought therein.
Sec. 205.84 DOE evaluation.
(a) Processing. (1) The DOE may initiate an investigation of any
statement in a request and utilize in its evaluation any relevant facts
obtained by such investigation. The DOE may accept submissions from
third persons relevant to any request for interpretation provided that
the person making the request is afforded an opportunity to respond to
all third person submissions. In evaluating a request for
interpretation, 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 advance its
evaluation of the request.
(2) The DOE shall issue its interpretation on the basis of the
information provided in the request, unless that information is
supplemented by other information brought to the attention of the
General Counsel or a Regional Counsel during the proceeding. The
interpretation shall, therefore, depend for its authority on the
accuracy of the factual statement and may be relied upon only to the
extent that the facts of the actual situation correspond to those upon
which the interpretation was based.
(3) If the DOE determines that there is insufficient information
upon which to base a decision and if upon request additional information
is not submitted by the person requesting the interpretation, the DOE
may refuse to issue an interpretation.
(b) Criteria. (1) The DOE shall base an interpretation on the FEA
and EPAA and the regulations and published rulings of the DOE as applied
to the specific factual situation.
(2) The DOE shall take into consideration previously issued
interpretations dealing with the same or a related issue.
Sec. 205.85 Decision and effect.
(a) An interpretation may be issued after consideration of the
request for interpretation and other relevant information received or
obtained during the proceeding.
(b) The interpretation shall contain a statement of the information
upon which it is based and a legal analysis of and conclusions regarding
the application of rulings, regulations and other precedent to the
situation presented in the request.
(c) Only those persons to whom an interpretation is specifically
addressed and other persons upon whom the DOE serves the interpretation
and who are directly involved in the same transaction or act may rely
upon it. No person entitled to rely upon an interpretation shall be
subject to civil or criminal penalties stated in subpart P of this part
for any act taken in reliance upon the interpretation, notwithstanding
that the interpretation shall thereafter be declared by judicial or
other competent authority to be invalid.
(d) An interpretation may be rescinded or modified at any time.
Rescission or modification may be effected by notifying persons entitled
to rely on the interpretation that it is rescinded or modified. This
notification shall include a statement of the reasons for the recision
or modification and, in the case of a modification, a restatement of the
interpretation as modified.
(e) An interpretation is modified by a subsequent amendment to the
regulations or ruling to the extent that it is inconsistent with the
amended regulation or ruling.
[[Page 19]]
(f)(1) Any person aggrieved by an interpretation may submit a
petition for reconsideration to the General Counsel within 30 days of
service of the interpretation from which the reconsideration is sought.
There has not been an exhaustion of administrative remedies until a
period of 30 days from the date of service of the interpretation has
elapsed without receipt by the General Counsel of a petition for
reconsideration or, if a petition for reconsideration of the
interpretation has been filed in a timely manner, until that petition
has been acted on by the General Counsel. However, a petition to which
the General Counsel does not respond within 60 days of the date of
receipt thereof, or within such extended time as the General Counsel may
prescribe by written notice to the petitioner concerned within that 60
day period, shall be considered denied.
(2) A petition for reconsideration 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
interpretation was erroneous in fact or in law, or that it was arbitrary
or capricious.
(3) The General Counsel may deny any petition for reconsideration if
the petitioner does not establish that--
(i) The petition was filed by a person aggrieved by an
interpretation;
(ii) The interpretation was erroneous in fact or in law; or
(iii) The interpretation was arbitrary or capricious. The denial of
a petition shall be a final order of which the petitioner may seek
judicial review.
(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]
Sec. 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]
Subparts G-J [Reserved]
Subpart K_Rulings
Sec. 205.150 Purpose and scope.
This subpart establishes the criteria for the issuance of
interpretative rulings by the General Counsel. All rulings shall be
published in the Federal Register. Any person is entitled to rely upon
such ruling, to the extent provided in this subpart.
Sec. 205.151 Criteria for issuance.
(a) A ruling may be issued, in the discretion of the General
Counsel, whenever there have been a substantial number of inquiries with
regard to similar factual situations or a particular section of the
regulations.
(b) The General Counsel may issue a ruling whenever it is determined
that it will be of assistance to the public in applying the regulations
to a specific situation.
Sec. 205.152 Modification or rescission.
(a) A ruling may be modified or rescinded by:
(1) Publication of the modification or rescission in the Federal
Register; or
(2) A rulemaking proceeding in accordance with subpart L of this
part.
(b) Unless and until a ruling is modified or rescinded as provided
in paragraph (a) of this section, no person shall be subject to the
sanctions or penalties stated in subpart P of this part for actions
taken in reliance upon the ruling, notwithstanding that the ruling shall
thereafter be declared by judicial or other competent authority to be
invalid. Upon such declaration,
[[Page 20]]
no person shall be entitled to rely upon the ruling.
Sec. 205.153 Comments.
A written comment on or objection to a published ruling may be filed
at any time with the General Counsel at the address specified in Sec.
205.12.
Sec. 205.154 Appeal.
There is no administrative appeal of a ruling.
Subpart L [Reserved]
Subpart M_Conferences, Hearings, and Public Hearings
Sec. 205.170 Purpose and scope.
This subpart establishes the procedures for requesting and
conducting a DOE conference, hearing, or public hearing. Such
proceedings shall be convened in the discretion of the DOE, consistent
with the requirements of the FEAA.
Sec. 205.171 Conferences.
(a) The DOE in its discretion may direct that a conference be
convened, on its own initiative or upon request by a person, when it
appears that such conference will materially advance the proceeding. The
determination as to who may attend a conference convened under this
subpart shall be in the discretion of the DOE, but a conference will
usually not be open to the public.
(b) A conference may be requested in connection with any proceeding
of the DOE by any person who might be aggrieved by that proceeding. The
request may be made in writing or verbally, but must include a specific
showing as to why such conference will materially advance the
proceeding. The request shall be addressed to the DOE office that is
conducting the proceeding.
(c) A conference may only be convened after actual notice of the
time, place, and nature of the conference is provided to the person who
requested the conference.
(d) When a conference is convened in accordance with this section,
each person may present views as to the issue or issues involved.
Documentary evidence may be presented at the conference, but will be
treated as if submitted in the regular course of the proceedings. A
transcript of the conference will not usually be prepared. However, the
DOE in its discretion may have a verbatim transcript prepared.
(e) Because a conference is solely for the exchange of views
incident to a proceeding, there will be no formal reports or findings
unless the DOE in its discretion determines that such would be
advisable.
Sec. 205.172 Hearings.
(a) The DOE in its discretion may direct that a hearing be convened
on its own initiative or upon request by a person, when it appears that
such hearing will materially advance the proceedings. The determination
as to who may attend a hearing convened under this subpart shall be in
the discretion of DOE, but a hearing will usually not be open to the
public. Where the hearing involves a matter arising under part 213, the
Director of Oil Imports shall be notified as to its time and place, in
order that he or his representative may present views as to the issue or
issues involved.
(b) A hearing may only be requested in connection with an
application for an exception or an appeal. Such request may be by the
applicant, appellant, or any other person who might be aggrieved by the
DOE action sought. The request shall be in writing and shall include a
specific showing as to why such hearing will materially advance the
proceeding. The request shall be addressed to the DOE office that is
considering the application for an exception or the appeal.
(c) The DOE will designate an agency official to conduct the
hearing, and will specify the time and place for the hearing.
(d) A hearing may only be convened after actual notice of the time,
place, and nature of the hearing is provided both to the applicant or
appellant and to any other person readily identifiable by the DOE as one
who will be aggrieved by the DOE action involved. The notice shall
include, as appropriate:
[[Page 21]]
(1) A statement that such person may participate in the hearing; or
(2) A statement that such person may request a separate conference
or hearing regarding the application or appeal.
(e) When a hearing is convened in accordance with this section, each
person may present views as to the issue or issues involved. Documentary
evidence may be presented at the hearing, but will be treated as if
submitted in the regular course of the proceedings. A transcript of the
hearing will not usually be prepared. However, the DOE in its discretion
may have a verbatim transcript prepared.
(f) The official conducting the hearing may administer oaths and
affirmations, rule on the presentation of information, receive relevant
information, dispose of procedural requests, determine the format of the
hearing, and otherwise regulate the course of the hearing.
(g) Because a hearing is solely for the exchange of views incident
to a proceeding, there will be no formal reports or findings unless the
DOE in its discretion determines that such would be advisable.
[39 FR 35489, Oct. 1, 1974, as amended at 40 FR 36557, Aug. 21, 1975]
Sec. 205.173 Public hearings.
(a) A public hearing shall be convened incident to a rulemaking:
(1) When the proposed rule or regulation is likely to have a
substantial impact on the Nation's economy or large numbers of
individuals or businesses; or
(2) When the DOE determines that a public hearing would materially
advance the consideration of the issue. A public hearing may be
requested by any interested person in connection with a rulemaking
proceeding, but shall only be convened on the initiative of the DOE
unless otherwise required by statute.
(b) A public hearing may be convened incident to any proceeding when
the DOE in its discretion determines that such public hearing would
materially advance the consideration of the issue.
(c) A public hearing may only be convened after publication of a
notice in the Federal Register, which shall include a statement of the
time, place, and nature of the public hearing.
(d) Interested persons may file a request to participate in the
public hearing in accordance with the instructions in the notice
published in the Federal Register. The request shall be in writing and
signed by the person making the request. It shall include a description
of the person's interest in the issue or issues involved and of the
anticipated content of the presentation. It shall also contain a
statement explaining why the person would be an appropriate spokesperson
for the particular view expressed.
(e) The DOE shall appoint a presiding officer to conduct the public
hearing. An agenda shall be prepared that shall provide, to the extent
practicable, for the presentation of all relevant views by competent
spokespersons.
(f) A verbatim transcript shall be made of the hearing. The
transcript, together with any written comments submitted in the course
of the proceeding, shall be made available for public inspection and
copying in the public docket room, as provided in Sec. 205.15.
(g) The information presented at the public hearing, together with
the written comments submitted and other relevant information developed
during the course of the proceeding, shall provide the basis for the DOE
decision.
Subpart N [Reserved]
Subpart O_Notice of Probable Violation, Remedial Order, Notice of
Proposed Disallowance, and Order of Disallowance
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 7924, Feb. 7, 1979, unless otherwise noted.
[[Page 22]]
Sec. 205.190 Purpose and scope.
(a) This subpart establishes the procedures for determining the
nature and extent of violations of the DOE regulations in parts 210,
211, and 212 and the procedures for issuance of a Notice of Probable
Violation, a Proposed Remedial Order, a Remedial Order, an Interim
Remedial Order for Immediate Compliance, a Remedial Order for Immediate
Compliance, a Notice of Probable Disallowance, a Proposed Order of
Disallowance, an Order of Disallowance, or a Consent Order. Nothing in
these regulations shall affect the authority of DOE enforcement
officials in coordination with the Department of Justice to initiate
appropriate civil or criminal enforcement actions in court at any time.
(b) When any report required by the ERA or any audit or
investigation discloses, or the ERA otherwise discovers, that there is
reason to believe a violation of any provision of this chapter, or any
order issued thereunder, has occurred, is continuing or is about to
occur, the ERA may conduct an inquiry to determine the nature and extent
of the violation. A Remedial Order or Order of Disallowance may be
issued thereafter by the Office of Hearings and Appeals. The ERA may
commence enforcement proceedings by serving a Notice of Probable
Violation, a Notice of Probable Disallowance, a Proposed Remedial Order,
a Proposed Order of Disallowance, or an Interim Remedial Order for
Immediate Compliance.
Sec. 205.191 [Reserved]
Sec. 205.192 Proposed remedial order.
(a) If the ERA finds, after the 30-day or other period authorized
for reply to the Notice of Probable Violation, that a violation has
occurred, is continuing, or is about to occur, it may issue a Proposed
Remedial Order, which shall set forth the relevant facts and law.
(b) The ERA may issue a Proposed Remedial Order at any time it finds
that a violation has occurred, is continuing, or is about to occur even
if it has not previously issued a Notice of Probable Violation.
(c) The ERA shall serve a copy of the Proposed Remedial Order upon
the person to whom it is directed. The ERA shall promptly publish a
notice in the Federal Register which states the person to whom the
Proposed Remedial Order is directed, his address, and the products,
dollar amounts, time period, and geographical area specified in the
Proposed Remedial Order. The notice shall indicate that a copy of the
Proposed Remedial Order with confidential information, if any, deleted
may be obtained from the ERA and that within 15 days after the date of
publication any aggrieved person may file a Notice of Objection with the
Office of Hearings and Appeals of accordance with Sec. 205.193. The ERA
shall mail copies of the Federal Register notice to all readily
identifiable persons who are likely to be aggrieved by issuance of the
Proposed Remedial Order as a final order.
(d) The Proposed Remedial Order shall set forth the proposed
findings of fact and conclusions of law upon which it is based. It shall
also include a discussion of the relevant authorities which support the
position asserted, including rules, regulations, rulings,
interpretations and previous decisions issued by DOE or its predecessor
agencies. The Proposed Remedial Order shall be accompanied by a
declaration executed by the DOE employee primarily knowledgeable about
the facts of the case stating that, to the best of declarant's knowledge
and belief, the findings of fact are correct.
(e) The ERA may amend or withdraw a Proposed Remedial Order at its
discretion prior to the date of service of a Statement of Objections in
that proceeding. The date of service of the amended documents shall be
considered the date of service of the Proposed Remedial Order in
calculating the time periods specified in this part 205.
Sec. 205.192A Burden of proof.
(a) In a Proposed Remedial Order proceeding the ERA has the burden
of establishing a prima facie case as to the validity of the findings of
fact and conclusions of law asserted therein. The ERA shall be deemed to
meet this burden by the service of a Proposed Remedial Order that meets
the requirements of Sec. 205.192(d) and any supplemental information
that may be made available under Sec. 205.193A.
[[Page 23]]
(b) Once a prima facie case has been established, a person who
objects to a finding of fact or conclusion of law in the Proposed
Remedial Order has the burden of going forward with the evidence.
Furthermore, the proponent of additional factual representations has the
burden of going forward with the evidence.
(c) Unless otherwise specified by the Director of the Office of
Hearings and Appeals or his designee, the proponent of an order or a
motion or additional factual representations has the ultimate burden of
persuasion.
Sec. 205.193 Notice of Objection.
(a) Within 15 days after publication of the notice of a Proposed
Remedial Order in the Federal Register any aggrieved person may file a
Notice of Objection to the Proposed Remedial Order with the Office of
Hearings and Appeals. The Notice shall be filed in duplicate, shall
briefly describe how the person would be aggrieved by issuance of the
Proposed Remedial Order as a final order and shall state the person's
intention to file a Statement of Objections. No confidential information
shall be included in a Notice of Objection. The DOE shall place one copy
of the Notice in the Office of Hearings and Appeals Public Docket Room.
(b) A person who fails to file a timely Notice of Objection shall be
deemed to have admitted the findings of fact and conclusions of law as
stated in the Proposed Remedial Order. If a Notice of Objection is not
filed as provided by paragraph (a) of this section, the Proposed
Remedial Order may be issued as a final order.
(c) A person who files a Notice of Objection shall on the same day
serve a copy of the Notice upon the person to whom the Proposed Remedial
Order is directed, the DOE Office that issued the Proposed Remedial
Order, and the DOE Assistant General Counsel for Administrative
Litigation.
(d) The Notice shall include a certification of compliance with the
provisions of this section, the names and addresses of each person
served with a copy of the Notice, and the date and manner of service.
(e) If no person files a timely Notice of Objection, ERA may request
the Office of Hearings and Appeals to issue the Proposed Remedial Order
as a final Remedial Order.
(f) In order to exhaust administrative remedies with respect to a
Remedial Order proceeding, a person must file a timely Notice of
Objection and Statement of Objections with the Office of Hearings and
Appeals.
Sec. 205.193A Submission of ERA supplemental information.
Within 20 days after service of a Notice of Objection to a Proposed
Remedial Order the ERA may serve, upon the person to whom the Proposed
Remedial Order was directed, supplemental information relating to the
calculations and determinations which support the findings of fact set
forth in the Proposed Remedial Order.
Sec. 205.194 Participants; official service list.
(a) Upon receipt of a Notice of Objection, the Office of Hearings
and Appeals shall publish a notice in the Federal Register which states
the person to whom the Proposed Remedial Order is directed, his address
and the products, dollar amounts, time period, and geographical area
specified in the Proposed Remedial Order. The notice shall state that
any person who wishes to participate in the proceeding must file an
appropriate request with the Office of Hearings and Appeals.
(b) The Office that issued the Proposed Remedial Order and the
person to whom the Order is directed shall be considered participants
before the Office of Hearings and Appeals at all stages of an
enforcement proceeding. Any other person whose interest may be affected
by the proceeding may file a request to participate in the proceeding
with the Office of Hearings and Appeals within 20 days after publication
of the notice referred to in paragraph (a) of this section. The request
shall contain
(1) The person's name, address, and telephone number and similar
information concerning his duly authorized representative, if any;
(2) A detailed description of the person's interest in the
proceeding;
[[Page 24]]
(3) The specific reasons why the person's active involvement in the
proceeding will substantially contribute to a complete resolution of the
issues to be considered in the proceeding;
(4) A statement of the position which the person intends to adopt in
the proceeding; and
(5) A statement of the particular aspects of the proceeding, e.g.
oral argument, submission of briefs, or discovery, in which the person
wishes to actively participate.
(c) After considering the requests submitted pursuant to paragraph
(b) of this section, the Office of Hearings and Appeals shall determine
those persons who may participate on an active basis in the proceeding
and the nature of their participation. Participants with similar
interests may be required to consolidate their submissions and to appear
in the proceeding through a common representative.
(d) Within 30 days after publication of the notice referred to in
paragraph (a) of this section, the Office of Hearings and Appeals shall
prepare an official service list for the proceeding. Within the same 30
day period the Office of Hearings and Appeals shall mail the official
service list to all persons who filed requests to participate. For good
cause shown a person may be placed on the official service list as a
non-participant, for the receipt of documents only. An opportunity shall
be afforded to participants to oppose the placement of a non-participant
on the official service list.
(e) A person requesting to participate after the period for
submitting requests has expired must show good cause for failure to file
a request within the prescribed time period.
(f) The Office of Hearings and Appeals may limit the nature of a
person's participation in the proceeding, if it finds that the facts
upon which the person's request was based have changed or were incorrect
when stated or that the person has not been actively participating or
has engaged in disruptive or dilatory conduct. The action referred to in
this provision shall be taken only after notice and an opportunity to be
heard are afforded.
Sec. 205.195 Filing and service of all submissions.
(a)(1) Statements of Objections, Responses to such Statements, and
any motions or other documents filed in connection with a proceeding
shall meet the requirements of Sec. 205.9 and shall be filed with the
Office of Hearings and Appeals in accordance with Sec. 205.4. Unless
otherwise specified, any participant may file a response to a motion
within five days of service.
(2) All documents shall be filed in duplicate, unless they contain
confidential information, in which case they must be filed in
triplicate.
(3) If a person claims that any portion of a document which he is
filing contains confidential information, such information should be
deleted from two of the three copies which are filed. One copy from
which confidential information has been deleted will be placed in the
Office of Hearings and Appeals Public Docket Room.
(b)(1) Persons other than DOE offices shall on the date a submission
is filed serve each person on the official service list. Service shall
be made in accordance with Sec. 205.7 and may also be made by deposit
in the regular United States mail, properly stamped and addressed, when
accompanied by proof of service consisting of a certificate of counsel
or an affidavit of the person making the service. If any filing arguably
contains confidential information, a person may serve copies with the
confidential information deleted upon all persons on the official
service list except DOE offices, which shall be served both an original
filing and one with deletions.
(2) A DOE office shall on the date it files a submission serve all
persons on the official service list, unless the filing arguably
contains confidential information. In that case the DOE office shall
notify the person to whom the information relates of the opportunity to
identify and delete the confidential information. The DOE Office may
delay the service of a submission containing arguably confidential
information upon all persons other than the possessor of the
confidential information and other DOE offices up to 14 days. The
possessor of the confidential information shall serve the filing with
any
[[Page 25]]
deletions upon all persons on the official service list within such time
period.
(c) Any filing made under this section shall include a certification
of compliance by the filer with the provisions of this subpart. The
person serving a document shall file a certificate of service, which
includes the date and manner of service for each person on the official
service list.
Sec. 205.196 Statement of objections.
(a) A person who has filed a Notice of Objection shall file a
Statement of Objections to a Proposed Remedial Order within 40 days
after service of the Notice of Objection. A request for an extension of
time for filing must be submitted in writing and may be granted for good
cause shown.
(b) The Statement of Objections shall set forth the bases for the
objections to the issuance of the Proposed Remedial Order as a final
order, including a specification of the issues of fact or law which the
person intends to contest in any further proceeding involving the
compliance matter which is the subject of the Proposed Remedial Order.
The Statement shall set forth the findings of fact contained in the
Proposed Remedial Order which are alleged to be erroneous, the factual
basis for such allegations, and any alternative findings which are
sought. The Statement shall include a discussion of all relevant
authorities which support the position asserted. The Statement may
include additional factual representations which are not referred to in
the Proposed Remedial Order and which the person contends are material
and relevant to the compliance proceeding. For each additional factual
representation which the person asserts should be made, the Statement
shall include reasons why the factual representation is relevant and
material, and the manner in which its validity is or will be
established. The person shall also specify the manner in which each
additional issue of fact was raised in any prior administrative
proceeding which led to issuance of the Proposed Remedial Order, or the
reasons why it was not raised.
(c) A Statement of Objections that is filed by the person to whom a
Proposed Remedial Order is directed shall include a copy of any relevant
Notice of Probable Violation, each Response thereto, the Proposed
Remedial Order, and any relevant work papers or supplemental information
previously provided by ERA. Copies of this material must also be
included with the copy of the Statement of Objections served upon the
DOE Assistant General Counsel for Administrative Litigation. All other
persons on the official service list must be notified that such
materials are available from the notifier upon written request.
Sec. 205.197 Response to statement of objections; reply.
(a) Within 30 days after service of a Statement of Objections each
participant may file a Response. If any motions are served with the
Statement of Objections, a participant shall have 30 days from the date
of service to respond to such submissions, notwithstanding any shorter
time periods otherwise required in this subpart. The Response shall
contain a full discussion of the position asserted and a discussion of
the legal and factual bases which support that position. The Response
may also contain a request that any issue of fact or law advanced in a
Statement of Objections be dismissed. Any such request shall be
accompanied by a full discussion of the reasons supporting the
dismissal.
(b) A participant may submit a Reply to any Response within 10 days
after the date of service of the Response.
Sec. 205.198 Discovery.
(a) If a person intends to file a Motion for Discovery, he must file
it at the same time that he files his Statement of Objections or at the
same time he files his Response to a Statement of Objections, whichever
is earlier. All Motions for Discovery and related filings must be served
upon the person to whom the discovery is directed. If the person to whom
the discovery is directed is not on the official service list, the
documents served upon him shall include a copy of this section, the
address of the Office of Hearings and Appeals and a statement that
objections to the Motion may be filed with the Office of Hearings and
Appeals.
[[Page 26]]
(b) A Motion for Discovery may request that:
(1) A person produce for inspection and photocopying non-privileged
written material in his possession;
(2) A person respond to written interrogatories;
(3) A person admit to the genuineness of any relevant document or
the truth of any relevant fact; or
(4) The deposition of a material witness be taken.
(c) A Motion for Discovery shall set forth the reasons why the
particular discovery is necessary in order to obtain relevant and
material evidence and shall explain why such discovery would not unduly
delay the proceeding.
(d) Within 20 days after a Motion for Discovery is served, a
participant or a person to whom the discovery is directed may file a
request that the Motion be denied in whole or in part, stating the
reasons which support the request.
(e) Discovery may be conducted only pursuant to an Order issued by
the Office of Hearings and Appeals. A Motion for Discovery will be
granted if it is concluded that discovery is necessary for the party to
obtain relevant and material evidence and that discovery will not unduly
delay the proceeding. Depositions will be permitted if a convincing
showing is made that the participant cannot obtain the material sought
through one of the other discovery means specified in paragraph (b) of
this section.
(f) The Director of the Office of Hearings and Appeals or his
designee may issue subpoenas in accordance with Sec. 205.8 in support
of Discovery Orders, except that Sec. 205.8 (h)(2), (3), and (4) shall
not apply to such subpoenas.
(g) The Office of Hearings and Appeals may order that any direct
expenses incurred by a person to produce evidence pursuant to a Motion
for Discovery be charged to the person who filed the Motion.
(h)(1) If a person fails to comply with an order relating to
discovery, the Office of Hearings and Appeals may order appropriate
sanctions.
(2) It shall be the duty of aggrieved participants to request that
appropriate relief be fashioned in such situations.
(i) Any order issued by the Office of Hearings and Appeals with
respect to discovery shall be subject to further administrative review
or appeal only upon issuance of the determination referred to in Sec.
205.199B.
Sec. 205.198A Protective order.
A participant who has unsuccessfully attempted in writing to obtain
information that another participant claims is confidential may file a
Motion for Discovery and Protective Order. This motion shall meet the
requirements of Sec. 205.198 and shall specify the particular
confidential information that the movant seeks and the reasons why the
information is necessary to adequately present the movant's position in
the proceeding. A copy of the written request for information, a
certification concerning when and to whom it was served and a copy of
the response, if any, shall be appended to the motion. The motion must
give the possessor of the information notice that a Response to the
Motion must be filed within ten days. The Response shall specify the
safeguards, if any, that should be imposed if the information is ordered
to be released. The Office of Hearings and Appeals may issue a
Protective Order upon consideration of the Motion and the Response.
Sec. 205.199 Evidentiary hearing.
(a) Filing Requirements. At the time a person files a Statement of
Objections he may also file a motion requesting an evidentiary hearing
be convened. A motion requesting an evidentiary hearing may be filed by
any other participant within 30 days after that participant is served
with a Statement of Objections.
(b) Contents of Motion for Evidentiary Hearing. A Motion for
Evidentiary Hearing shall specify each disputed issue of fact and the
bases for the alternative findings the movant asserts. The movant shall
also describe the manner in which each disputed issue of fact was raised
in any prior administrative proceeding which led to issuance of the
Proposed Remedial Order, or why it was not raised. The movant shall with
respect to each disputed or alternative finding of fact:
[[Page 27]]
(1) As specifically as possible, identify the witnesses whose
testimony is required;
(2) State the reasons why the testimony of the witnesses is
necessary; and
(3) State the reasons why the asserted position can be effectively
established only through the direct questioning of witnesses at an
evidentiary hearing.
(c) Response to Motion for Evidentiary Hearing. Within 20 days after
service of any Motion for Evidentiary Hearing, the Office that issued
the Proposed Remedial Order shall, and any other participant may file a
Response with the Office of Hearings and Appeals. The Response shall
specify:
(1) Each particular factual representation which is accepted as
correct for purposes of the proceeding;
(2) Each particular factual representation which is denied;
(3) Each particular factual representation which the participant is
not in a position to accept or deny;
(4) Each particular factual representation which is not accepted and
the participant wishes proven by the submission of evidence;
(5) Each particular factual representation which the participant is
prepared to dispute through the testimony of witnesses or the submission
of verified documents; and
(6) Each particular factual representation which the participant
asserts should be dismissed as immaterial or irrelevant.
(d) Prehearing Conferences. After all submissions with respect to a
Motion for Evidentiary Hearing are filed, the Office of Hearings and
Appeals may conduct conferences or hearings to resolve differences of
view among the participants.
(e) Decision on Motion for Evidentiary Hearing. After considering
all relevant information received in connection with the Motion, the
Office of Hearings and Appeals shall enter an Order. In the Order the
Office of Hearings and Appeals shall direct that an evidentiary hearing
be convened if it concludes that a genuine dispute exists as to relevant
and material issues of fact and an evidentiary hearing would
substantially assist it in making findings of fact in an effective
manner. If the Motion for Evidentiary Hearing is granted in whole or in
part, the Order shall specify the parties to the hearing, any
limitations on the participation of a party, and the issues of fact set
forth for the evidentiary hearing. The Order may also require parties
that have adopted similar positions to consolidate their presentations
and to appear at the evidentiary hearing through a common
representative. If the Motion is denied, the Order may allow the movant
to file affidavits and other documents in support of his asserted
findings of fact.
(f) Review of Decision. The Order of the Office of Hearings and
Appeals with respect to a Motion for Evidentiary Hearing shall be
subject to further administrative review or appeal only upon issuance of
the determination referred to in Sec. 205.199B.
(g) Conduct of Evidentiary Hearing. All evidentiary hearings
convened pursuant to this section shall be conducted by the Director of
the Office of Hearings and Appeals or his designee. At any evidentiary
hearing the parties shall have the opportunity to present material
evidence which directly relates to a particular issue of fact set forth
for hearing. The presiding officer shall afford the parties an
opportunity to cross examine all witnesses. The presiding officer may
administer oaths and affirmations, rule on objections to the
presentation of evidence, receive relevant material, rule on any motion
to conform the Proposed Remedial Order to the evidence presented, rule
on motions for continuance, dispose of procedural requests, determine
the format of the hearing, modify any order granting a Motion for
Evidentiary Hearing, direct that written motions or briefs be provided
with respect to issues raised during the course of the hearing, issue
subpoenas, and otherwise regulate the conduct of the hearing. The
presiding officer may take reasonable measures to exclude duplicative
material from the hearing, and may place appropriate limitations on the
number of witnesses that may be called by a party. The presiding officer
may also require that evidence be submitted through affidavits or other
documents if the direct testimony of witnesses will unduly delay the
orderly
[[Page 28]]
progress of the hearing and would not contribute to resolving the issues
involved in the hearing. The provisions of Sec. 205.8 which relate to
subpoenas and witness fees shall apply to any evidentiary hearing,
except that subsection Sec. 205.8(h) (2), (3), and (4) shall not apply.
Sec. 205.199A Hearing for the purpose of oral argument only.
(a) A participant is entitled upon timely request to a hearing to
present oral argument with respect to the Proposed Remedial Order,
whether or not an evidentiary hearing is requested or convened. A
participant's request shall normally be considered untimely, if made
more than 10 days after service of a determination regarding any motion
filed by the requestor or, if no motions were filed by him, if made
after the date for filing his Reply or his Response to a Statement of
Objections.
(b) If an evidentiary hearing is convened, and a hearing for oral
argument is requested, the Office of Hearings and Appeals shall
determine whether the hearing for oral argument shall be held in
conjunction with the evidentiary hearing or at a separate time.
(c) A hearing for the purpose of receiving oral argument will
generally be conducted only after the issues involved in the proceeding
have been delineated, and any written material which the Office of
Hearings and Appeals has requested to supplement a Statement of
Objections or Responses has been submitted. The presiding officer may
require further written submissions in support of any position advanced
or issued at the hearing, and shall allow responses any such
submissions.
Sec. 205.199B Remedial order.
(a) After considering all information received during the
proceeding, the Director of the Office of Hearings and Appeals or his
designee may issue a final Remedial Order. The Remedial Order may adopt
the findings and conclusions contained in the Proposed Remedial Order or
may modify or rescind any such finding or conclusion to conform the
Order to the evidence or on the basis of a determination that the
finding or conclusion is erroneous in fact or law or is arbitrary or
capricious. In the alternative, the Office of Hearings and Appeals may
determine that no Remedial Order should be issued or may remand all or a
portion of the Proposed Remedial Order to the issuing DOE office for
further consideration or modification. Every determination made pursuant
to this section shall state the relevant facts and legal bases
supporting the determination.
(b) The DOE shall serve a copy of any determination issued pursuant
to paragraph (a) of this section upon the person to whom it is directed,
any person who was served with a copy of the Proposed Remedial Order,
the DOE office that issued the Proposed Remedial Order, the DOE
Assistant General Counsel for Administrative Litigation and any other
person on the official service list. Appropriate deletions may be made
in the determinations to ensure that confidentiality of information
protected from disclosure under 18 U.S.C. 1905 and 5 U.S.C. 552. A copy
of the determination with appropriate deletions to protect confidential
and proprietary data shall be placed in the Office of Hearings and
Appeals Public Docket Room.
Sec. 205.199C Appeals of remedial order to FERC.
(a) The person to whom a Remedial Order is issued by the Office of
Hearings and Appeals may file an administrative appeal if the Remedial
Order proceeding was initiated by a Notice of Probable Violation issued
after October 1, 1977, or, in those situations in which no Notice of
Probable Violation was issued, if the proceeding was initiated by a
Proposed Remedial Order issued after October 1, 1977.
(b) Any such appeal must be initiated within 30 days after service
of the Order by giving written notice to the Office of Hearings and
Appeals that the person to whom a Remedial Order is issued wishes to
contest the Order.
(c) The Office of Hearings and Appeals shall promptly advise the
Federal Energy Regulatory Commission of its receipt of a notice
described in paragraph (b) of this section.
(d) The Office of Hearings and Appeals may, on a case by case basis,
set reasonable time limits for the Federal
[[Page 29]]
Energy Regulatory Commission to complete its action on such an appeal
proceeding.
(e) In order to exhaust administrative remedies, a person who is
entitled to appeal a Remedial Order issued by the Office of Hearings and
Appeals must file a timely appeal and await a decision on the merits.
Any Remedial Order that is not appealed within the 30-day period shall
become effective as a final Order of the DOE and is not subject to
review by any court.
Sec. Sec. 205.199D-205.199E [Reserved]
Sec. 205.199F Ex parte communications.
(a) No person who is not employed or otherwise supervised by the
Office of Hearings and Appeals shall submit ex parte communications to
the Director or any person employed or otherwise supervised by the
Office with respect to any matter involved in Remedial Order or Order of
Disallowance proceedings.
(1) Ex parte communications include any ex parte oral or written
communications relative to the merits of a Proposed Remedial Order,
Interim Remedial Order for Immediate Compliance, or Proposed Order of
Disallowance proceeding pending before the Office of Hearings and
Appeals. The term shall not, however, include requests for status
reports, inquiries as to procedures, or the submission of proprietary or
confidential information. Notice that proprietary or confidential
submissions have been made shall be given to all persons on the official
service list.
(b) 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 serve a copy
of a written communication or a memorandum summarizing an oral
communication to all participants in the affected proceeding. The Office
of Hearings and Appeals may also take any other appropriate action to
mitigate the adverse impact to any person whose interest may be affected
by the ex parte contact.
Sec. 205.199G Extension of time; Interim and Ancillary Orders.
The Director of the Office of Hearings and Appeals or his designee
may permit upon motion any document or submission referred to in this
subpart other than appeals to FERC to be amended or withdrawn after it
has been filed or to be filed within a time period different from that
specified in this subpart. The Director or his designee may upon motion
or on his own initiative issue any interim or ancillary Orders,
reconsider any determinations, or make any rulings or determinations
that are deemed necessary to ensure that the proceedings specified in
this subpart are conducted in an appropriate manner and are not unduly
delayed.
Sec. 205.199H Actions not subject to administrative appeal.
A Notice of Probable Violation, Notice of Proposed Disallowance,
Proposed Remedial Order or Interim Remedial Order for Immediate
Compliance issued pursuant to this subpart shall not be an action from
which there may be an administrative appeal pursuant to subpart H. In
addition, a determination by the Office of Hearings and Appeals that a
Remedial Order, an Order of Disallowance, or a Remedial Order for
Immediate Compliance should not be issued shall not be appealable
pursuant to subpart H.
Sec. 205.199I Remedies.
(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 Sec. 212.83 or Sec. 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
[[Page 30]]
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.
Sec. 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 Sec. 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 Sec. 205.199B
or an Order of Disallowance issued pursuant to Sec. 205.199E, and may
require one or more of the remedies authorized by Sec. 205.199I and
Sec. 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 Sec. 205.199C or Sec. 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
[[Page 31]]
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 immediately effective pursuant to 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 encompassed by the Consent Order, unless
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.
Subparts P-T [Reserved]
Subpart U_Procedures for Electricity Export Cases
Authority: Federal Power Act, 41 Stat. 1063, as amended; Executive
Order 10485, as amended by Executive Order 12038; 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.
Source: 49 FR 35315, Sept. 6, 1984, unless otherwise noted.
Sec. 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 electricity export adjudications.
(b) Definitions. As used in this subpart--
Administrator means the Administrator of the Economic Regulatory
Administration.
Decisional employees 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 decision-making 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
decision-making 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, non-profit and public interest organizations, and other
individuals and organizations, including state, local and other public
officials, with a proprietary, financial or other special interest in
the outcome of the adjudication. The term does not include other federal
agencies, unless an
[[Page 32]]
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 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.
Sec. Sec. 205.261-205.269 [Reserved]
Sec. 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-the-record 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) With 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
memoranda prepared in compliance with paragraph (a)(3) of this section
to the Director of the Coal and Electricity Division, ERA, 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 petition 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 decision-making process by Department employees who perform
investigative or trial functions in an adjudication, shall no longer be
applicable to ERA.
Subpart V_Special Procedures for Distribution of Refunds
Authority: Economic Stabilization Act of 1970, Pub. L. 92-210;
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. 94-332, 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; E.O. 11790, 39 FR 23185; E.O. 12009, 42
FR 46267.
Source: 44 FR 8566, Feb. 9, 1979, unless otherwise noted.
Sec. 205.280 Purpose and scope.
This subpart establishes special procedures pursuant to which
refunds may be made to injured persons in order to remedy the effects of
a violation of the regulations of the Department of Energy. This subpart
shall be applicable to those situations in which the Department of
Energy is unable to readily identify persons who are entitled to
[[Page 33]]
refunds specified in a Remedial Order, a Remedial Order for Immediate
Compliance, an Order of Disallowance or a Consent Order, or to readily
ascertain the amounts that such persons are entitled to receive.
Sec. 205.281 Petition for implementation of special refund procedures.
(a) At any time after the issuance of a Remedial Order (including
for purposes of this subpart a Remedial Order for Immediate Compliance
and an Order of Disallowance), or a Consent Order, the Special Counsel
of the Department of Energy, the ERA Office of Enforcement, or any other
enforcement official of the Department of Energy may file with the
Office of Hearings and Appeals a Petition for the Implementation of
Special Refund Procedures.
(b) The Petition shall state that the person filing it has been
unable readily either to identify the persons who are entitled to
refunds to be remitted pursuant to a Remedial Order or a Consent Order
or to ascertain the amounts of refunds that such persons are entitled to
receive. The Petition shall request that the Office of Hearings and
Appeals institute appropriate proceedings under this Subpart to
distribute the funds referred to in the enforcement documents.
(c) The Petition shall contain a copy of each relevant enforcement
document, shall be filed in duplicate, and shall meet the requirements
of Sec. 205.9 of this part.
Sec. 205.282 Evaluation of petition by the Office of Hearings and Appeals.
(a) After considering the Petition, the Director of the Office of
Hearings and Appeals or his designee shall issue a Proposed Decision and
Order. The Proposed Decision and Order shall generally describe the
nature of the particular refund proceeding and shall set forth the
standards and procedures that the Office of Hearings and Appeals intends
to apply in evaluating refund claims.
(b) The Proposed Decision and Order shall be published in the
Federal Register together with a statement that any member of the public
may submit written comments to the Office of Hearings and Appeals with
respect to the matter. At least 30 days following publication in the
Federal Register shall be provided for the submission of comments.
(c) After considering the comments submitted, the Director of the
Office of Hearings and Appeals or his designee shall issue a final
Decision and Order which shall govern the disposition of the refunds.
The final Decision and Order shall also be published in the Federal
Register.
(d) The final Decision and Order shall set forth the standards and
procedures that will be used in evaluating individual Applications for
Refunds and distributing the refund amount. Those standards and
procedures shall be consistent with the provisions of this subpart.
(e) In establishing standards and procedures for implementing refund
distributions, the Office of Hearings and Appeals shall take into
account the desirability of distributing the refunds in an efficient,
effective and equitable manner and resolving to the maximum extent
practicable all outstanding claims. In order to do so, the standards for
evaluation of individual claims may be based upon appropriate
presumptions.
Sec. 205.283 Applications for refund.
(a) Any person entitled to a refund pursuant to a final Decision and
Order issued pursuant to Sec. 205.282 may file an Application for
Refund. All Applications must be signed by the applicant and specify the
DOE order to which they pertain. Any Application for a refund in excess
of $100 must be file in duplicate, and a copy of that Application will
be available for public inspection in the DOE Public Docket Room at 2000
M Street, NW., Washington, DC. Any applicant who believes that his
Application contains confidential information must so indicate on the
first page of his Application and submit two additional copies of his
Application from which the information that the applicant claims is
confidential has been deleted, together with a statement specifying why
any such information is privileged or confidential.
(b) The contents of an Application for Refund shall be specified in
the final
[[Page 34]]
Decision and Order referred to in Sec. 205.282(c). A filing deadline
for Applications shall also be specified in the final Decision and
Order, and shall be no less than 90 days after the publication of the
Order in the Federal Register.
(c) Each Application shall be in writing and signed by the
applicant, and shall indicate whether the applicant or any person acting
on his instructions has filed or intends to file any other Application
or claim of whatever nature regarding the matters at issue in the
underlying enforcement proceeding. Each Application shall also include a
sworn statement by the applicant that all information in his Application
is true and correct to the best of his knowledge and belief.
Sec. 205.284 Processing of applications.
(a) The Director of the Office of Hearings and Appeals may appoint
an administrator to evaluate Applications under guidelines established
by the Office of Hearings and Appeals. The administrator, if he is not a
Federal Government employee, may be compensated from the funds referred
to in the Remedial Order or Consent Order. The administrator may design
and distribute an optional application form for the convenience of the
applicants.
(b) The Office of Hearings and Appeals or its designee may initiate
an investigation of any statement made in an Application and may require
verification of any document submitted in support of a claim. In
evaluating an Application, the Office of Hearings and Appeals or its
designee may solicit and consider information obtained from any source
and may on its own initiative convene a hearing or conference, if it
determines that a hearing or conference will advance its evaluation of
an Application.
(c) The Director of the Office of Hearings and Appeals or his
designee shall conduct any hearing or conference convened with respect
to an Application for Refund and shall specify the time and place for
the hearing or conference and notify the applicant. The official
conducting the hearing may administer oaths and affirmations, rule on
the presentation of information, receive relevant information, dispose
of procedural requests, determine the format of the hearing and
otherwise regulate the course of the hearing. The provisions of Sec.
205.8 of this part which relate to subpoenas and witness fees shall
apply to any hearing convened with respect to an application for refund,
except that Sec. 205.8(h) (2), (3) and (4) shall not apply.
(d) Upon consideration of an Application and other relevant
information received during the course of a refund proceeding, the
Director of the Office of Hearings and Appeals or his designee shall
issue an order granting or denying the Application. The order shall
contain a concise statement of the relevant facts and the legal basis
for the order. A copy of the order, with such modification as is
necessary to ensure the confidentiality of information protected from
public disclosure by 18 U.S.C. 1905, may be obtained upon request by an
applicant or any other person who participated in the proceeding.
Sec. 205.285 Effect of failure to file a timely application.
An Application for Refund must be filed no later than the date that
the Office of Hearings and Appeals establishes pursuant to Sec.
205.283(b). Any Application that is not filed on a timely basis may be
summarily dismissed. The Office of Hearings and Appeals or its designee
may, however, grant extensions of time for good cause shown. Any request
for an extension of time must generally be submitted in writing prior to
the deadline.
Sec. 205.286 Limitations on amount of refunds.
(a) The aggregate amount of all refunds approved by the Office of
Hearings and Appeals or its designee in a given case shall not exceed
the amount to be remitted pursuant to the relevant DOE enforcement
order, plus any accumulated interest, reduced by the amount of any
administrative costs approved by the Office of Hearings and Appeals. In
the event that the aggregate amount of approved claims exceeds the
aggregate amount of funds specified above, the Office of Hearings and
Appeals may make refunds on a pro rata basis. The Office of Hearings and
Appeals may delay payment of any
[[Page 35]]
refunds until all Applications have been processed.
(b) The Office of Hearings and Appeals may decline to consider
Applications for refund amounts that, in view of the direct
administrative costs involved, are too small to warrant individual
consideration.
Sec. 205.287 Escrow accounts, segregated funds and other guarantees.
(a) In implementing the refund procedures specified in this subpart,
the Director of the Office of Hearings and Appeals or his designee shall
issue an order providing for the custody of the funds to be tendered
pursuant to the Remedial Order or Consent Order. This Order may require
placement of the funds in an appropriate interest-bearing escrow
account, retention of the funds by the firm in a segregated account
under such terms and conditions as are specified by the DOE, or the
posting of a sufficient bond or other guarantee to ensure payment.
(b) All costs and charges approved by the Office of Hearings and
Appeals and incurred in connection with the processing of Applications
for Refund or incurred by an escrow agent shall be paid from the amount
of funds, including any accumulated interest, to be remitted pursuant to
the Remedial Order or Consent Order.
(c) After the expenses referred to in paragraph (b) of this section
have been satisfied and refunds distributed to successful applicants,
any remaining funds remitted pursuant to the Remedial Order or Consent
Order shall be deposited in the United States Treasury or distributed in
any other manner specified in the Decision and Order referred to in
Sec. 205.282(c).
(d) Funds contained in an escrow account, segregated fund, or
guaranteed by other approved means shall be disbursed only upon written
order of the Office of Hearings and Appeals.
Sec. 205.288 Interim and ancillary orders.
The Director of the Office of Hearings and Appeals or his designee
may issue any interim or ancillary orders, or make any rulings or
determinations to ensure that refund proceedings, including the actions
of the administrator and the custodian of the funds involved in a refund
proceeding, are conducted in an appropriate manner and are not unduly
delayed.
Subpart W_Electric Power System Permits and Reports; Applications;
Administrative Procedures and Sanctions
(Approved by the Office of Management and Budget under Control No. 1901-
0245)
Authority: Department of Energy Organization Act, Pub. L. No. 95-91,
91 Stat. 565 (42 U.S.C. Section 7101). Federal Power Act, Pub. L. 66-
280, 41 Stat. 1063 (16 U.S.C. Section 792) et seq., Department of Energy
Delegation Order No. 0204-4 (42 FR 60726). E.O. 10485, 18 FR 5397, 3
CFR, 1949-1953, Comp., p. 970 as amended by E.O. 12038, 43 FR 4957, 3
CFR 1978 Comp., p. 136.
Source: 45 FR 71560, Oct. 28, 1980; 46 FR 63209, Dec. 31, 1981,
unless otherwise noted.
Application for Authorization to Transmit Electric Energy to a Foreign
Country
Sec. 205.300 Who shall apply.
(a) An electric utility or other entity subject to DOE jurisdiction
under part II of the Federal Power Act who proposes to transmit any
electricity from the United States to a foreign country must submit an
application or be a party to an application submitted by another entity.
The application shall be submitted to the Office of Utility Systems of
the Economic Regulatory Administration (EPA).
(b) In connection with an application under Sec. Sec. 205.300
through 205.309, attention is directed to the provisions of Sec. Sec.
205.320 through 205.327, below, concerning applications for Presidential
Permits for the construction, connection, operation, or maintenance, at
the borders of the United States, of facilities for the transmission of
electric energy between the United States and a foreign country in
compliance with Executive Order 10485, as amended by Executive Order
12038.
Sec. 205.301 Time of filing.
Each application should be made at least six months in advance of
the initiation of the proposed electricity export, except when otherwise
permitted
[[Page 36]]
by the ERA to resolve an emergency situation.
Sec. 205.302 Contents of application.
Every application shall contain the following information set forth
in the order indicated below:
(a) The exact legal name of the applicant.
(b) The exact legal name of all partners.
(c) The name, title, post office address, and telephone number of
the person to whom correspondence in regard to the application shall be
addressed.
(d) The state or territory under the laws of which the applicant is
organized or incorporated, or authorized to operate. If the applicant is
authorized to operate in more than one state, all pertinent facts shall
be included.
(e) The name and address of any known Federal, State or local
government agency which may have any jurisdiction over the action to be
taken in this application and a brief description of that authority.
(f) A description of the transmission facilities through which the
electric energy will be delivered to the foreign country, including the
name of the owners and the location of any remote facilities.
(g) A technical discussion of the proposed electricity export's
reliability, fuel use and system stability impact on the applicant's
present and prospective electric power supply system. Applicant must
explain why the proposed electricity export will not impair the
sufficiency of electric supply on its system and why the export will not
impede or tend to impede the regional coordination of electric utility
planning or operation.
(h) The original application shall be signed and verified under oath
by an officer of the applicant having knowledge of the matters set forth
therein.
Sec. 205.303 Required exhibits.
There shall be filed with the application and as a part thereof the
following exhibits:
(a) Exhibit A. A copy of the agreement or proposed agreement under
which the electricity is to be transmitted including a listing of the
terms and conditions. If this agreement contains proprietary information
that should not be released to the general public, the applicant must
identify such data and include a statement explaining why proprietary
treatment is appropriate.
(b) Exhibit B. A showing, including a signed opinion of counsel,
that the proposed export of electricity is within the corporate power of
the applicant, and that the applicant has complied or will comply with
all pertinent Federal and State laws.
(c) Exhibit C. A general map showing the applicant's overall
electric system and a detailed map highlighting the location of the
facilities or the proposed facilities to be used for the generation and
transmission of the electric energy to be exported. The detailed map
shall identify the location of the proposed border crossing point(s) or
power transfer point(s) by Presidential Permit number whenever possible.
(d) Exhibit D. If an applicant resides or has its principal office
outside the United States, such applicant shall designate, by
irrevocable power of attorney, an agent residing within the United
States. A verified copy of such power of attorney shall be furnished
with the application.
(e) Exhibit E. A statement of any corporate relationship or existing
contract between the applicant and any other person, corporation, or
foreign government, which in any way relates to the control or fixing of
rates for the purchase, sale or transmission of electric energy.
(f) Exhibit F. An explanation of the methodology (Operating
Procedures) to inform neighboring electric utilities in the United
States of the available capacity and energy which may be in excess of
the applicant's requirements before delivery of such capacity to the
foreign purchaser. Approved firm export, diversity exchange and
emergency exports are exempted from this requirement. Those materials
required by this section which have been filed previously with the ERA
may be incorporated by reference.
Sec. 205.304 Other information.
Where the application is for authority to export less than 1,000,000
kilowatt hours annually, applicants need
[[Page 37]]
not furnish the information called for in Sec. Sec. 205.302(g) and
205.303 (Exhibit C). Applicants, regardless of the amount of electric
energy to be exported, may be required to furnish such supplemental
information as the ERA may deem pertinent.
Sec. 205.305 Transferability.
(a) An authorization to transmit electric energy from the United
States to a foreign country granted by order of the ERA under section
202(e) of the Federal Power Act shall not be transferable or assignable.
Provided written notice is given to the ERA within 30 days, the
authorization may continue in effect temporarily in the event of the
involuntary transfer of this authority by operation of law (including
transfers to receivers, trustees, or purchasers under foreclosure or
judicial sale). This continuance is contingent on the filing of an
application for permanent authorization and may be effective until a
decision is made thereon.
(b) In the event of a proposed voluntary transfer of this authority
to export electricity, the transferee and the transferor shall file
jointly an application pursuant to this subsection, setting forth such
information as required by Sec. Sec. 205.300 through 205.304, together
with a statement of reasons for the transfer.
(c) The ERA may at any time subsequent to the original order of
authorization, after opportunity for hearing, issue such supplemental
orders as it may find necessary or appropriate.
Sec. 205.306 Authorization not exclusive.
No authorization granted pursuant to section 202(e) of the Act shall
be deemed to prevent an authorization from being granted to any other
person or entity to export electric energy or to prevent any other
person or entity from making application for an export authorization.
Sec. 205.307 Form and style; number of copies
An original and two conformed copies of an application containing
the information required under Sec. Sec. 205.300 through 205.309 must
be filed.
Sec. 205.308 Filing schedule and annual reports.
(a) Persons authorized to transmit electric energy from the United
States shall promptly file all supplements, notices of succession in
ownership or operation, notices of cancellation, and certificates of
concurrence. In general, these documents should be filed at least 30
days prior to the effective date of any change.
(b) A change in the tariff arrangement does not require an amendment
to the authorization. However, any entity with an authorization to
export electric energy shall file with the ERA, and the appropriate
state regulatory agency, a certified copy of any changed rate schedule
and terms. Such changes may take effect upon the date of filing of
informational data with the ERA.
(c) Persons receiving authorization to transmit electric energy from
the United States shall submit to the ERA, by February 15 each year, a
report covering each month of the preceding calendar year detailing the
gross amount of kilowatt-hours of energy, by authorized category,
received or delivered, and the cost and revenue associated with each
category.
(Approved by the Office of Management and Budget under Control No. 1901-
0245)
[45 FR 71560, Oct. 28, 1980, as amended at 46 FR 63209, Dec. 31, 1981]
Sec. 205.309 Filing procedures and fees.
Applications shall be addressed to the Office of Utility Systems of
the Economic Regulatory Administration. Every application shall be
accompanied by a fee of $500.00. Fee payment shall be by check, draft,
or money order payable to the Treasurer of the United States. Copies of
applications and notifications of rate changes shall be furnished to the
Federal Energy Regulatory Commission and all affected State public
utility regulatory agencies.
[[Page 38]]
Application for Presidential Permit Authorizing the Construction,
Connection, Operation, and Maintenance of Facilities for Transmission of
Electric Energy at International Boundaries
Sec. 205.320 Who shall apply.
(a) Any person, firm, co-operative, corporation or other entity who
operates an electric power transmission or distribution facility
crossing the border of the United States, for the transmission of
electric energy between the United States and a foreign country, shall
have a Presidential Permit, in compliance with Executive Order 10485, as
amended by Executive Order 12038. Such applications should be filed with
the Office of Utility Systems of the Economic Regulatory Administration.
Note: E.O. 12038, dated February 3, 1978, amended E.O. 10485, dated
September 3, 1953, to delete the words ``Federal Power Commission'' and
``Commission'' and substitute for each ``Secretary of Energy.'' E.O.
10485 revoked and superseded E.O. 8202, dated July 13, 1939.
(b) In connection with applications hereunder, attention is directed
to the provisions of Sec. Sec. 205.300 to 205.309, above, concerning
applications for authorization to transmit electric energy from the
United States to a foreign country pursuant to section 202(e) of the
Federal Power Act.
Sec. 205.321 Time of filing.
Pursuant to the DOE's responsibility under the National
Environmental Policy Act, the DOE must make an environmental
determination of the proposed action. If, as a result of this
determination, an environmental impact statement (EIS) must be prepared,
the permit processing time normally will be 18-24 months. If no
environmental impact statement is required, then a six-month processing
time normally would be sufficient.
Sec. 205.322 Contents of application.
Every application shall be accompanied by a fee prescribed in Sec.
205.326 of this subpart and shall provide, in the order indicated, the
following:
(a) Information regarding the applicant. (1) The legal name of the
applicant;
(2) The legal name of all partners;
(3) The name, title, post office address, and telephone number of
the person to whom correspondence in regard to the application shall be
addressed;
(4) Whether the applicant or its transmission lines are owned wholly
or in part by a foreign government or directly or indirectly assisted by
a foreign government or instrumentality thereof; or whether the
applicant has any agreement pertaining to such ownership by or
assistance from any foreign government or instrumentality thereof.
(5) List all existing contracts that the applicant has with any
foreign government, or any foreign private concerns, relating to any
purchase, sale or delivery of electric energy.
(6) A showing, including a signed opinion of counsel, that the
construction, connection, operation, or maintenance of the proposed
facility is within the corporate power of the applicant, and that the
applicant has complied with or will comply with all pertinent Federal
and State laws;
(b) Information regarding the transmission lines to be covered by
the Presidential Permit. (1)(i) A technical description providing the
following information: (A) Number of circuits, with identification as to
whether the circuit is overhead or underground; (B) the operating
voltage and frequency; and (C) conductor size, type and number of
conductors per phase.
(ii) If the proposed interconnection is an overhead line the
following additional information must also be provided: (A) The wind and
ice loading design parameters; (B) a full description and drawing of a
typical supporting structure including strength specifications; (C)
structure spacing with typical ruling and maximum spans; (D) conductor
(phase) spacing; and (E) the designed line to ground and conductor side
clearances.
(iii) If an underground or underwater interconnection is proposed,
the following additional information must also be provided: (A) Burial
depth; (B) type of cable and a description of any required supporting
equipment, such as insulation medium pressurizing or forced cooling; and
(C) cathodic protection scheme. Technical diagrams which
[[Page 39]]
provide clarification of any of the above items should be included.
(2) A general area map with a scale not greater than 1 inch=40
kilometers (1 inch=25 miles) showing the overall system, and a detailed
map at a scale of 1 inch=8 kilometers (1 inch=5 miles) showing the
physical location, longitude and latitude of the facility on the
international border. The map shall indicate ownership of the facilities
at or on each side of the border between the United States and the
foreign country. The maps, plans, and description of the facilities
shall distinguish the facilities or parts thereof already constructed
from those to be constructed.
(3) Applications for the bulk power supply facility which is
proposed to be operated at 138 kilovolts or higher shall contain the
following bulk power system information:
(i) Data regarding the expected power transfer capability, using
normal and short time emergency conductor ratings;
(ii) System power flow plots for the applicant's service area for
heavy summer and light spring load periods, with and without the
proposed international interconnection, for the year the line is
scheduled to be placed in service and for the fifth year thereafter. The
power flow plots submitted can be in the format customarily used by the
utility, but the ERA requires a detailed legend to be included with the
power flow plots;
(iii) Data on the line design features for minimizing television
and/or radio interference caused by operation of the subject
transmission facilities;
(iv) A description of the relay protection scheme, including
equipment and proposed functional devices;
(v) After receipt of the system power flow plots, the ERA may
require the applicant to furnish system stability analysis for the
applicant's system.
(c) Information regarding the environmental impacts shall be
provided as follows for each routing alternative:
(1) Statement of the environmental impacts of the proposed
facilities including a list of each flood plain, wetland, critical
wildlife habitat, navigable waterway crossing, Indian land, or historic
site which may be impacted by the proposed facility with a description
of proposed activities therein.
(2) A list of any known Historic Places, as specified in 36 CFR part
800, which may be eligible for the National Register of Historic Places.
(3) Details regarding the minimum right-of-way width for
construction, operation and maintenance of the transmission lines and
the rationale for selecting that right-of-way width.
(4) A list of threatened or endangered wildlife or plant life which
may be located in the proposed alternative.
(d) A brief description of all practical alternatives to the
proposed facility and a discussion of the general environmental impacts
of each alternative.
(e) The original of each application shall be signed and verified
under oath by an officer of the applicant, having knowledge of the
matters therein set forth.
Sec. 205.323 Transferability.
(a) Neither a permit issued by the ERA pursuant to Executive Order
10485, as amended, nor the facility shall be transferable or assignable.
Provided written notice is given to the ERA within 30 days, the
authorization may continue in effect temporarily in the event of the
involuntary transfer of the facility by operation of law (including
transfers to receivers, trustees, or purchases under foreclosure or
judicial sale). This continuance is contingent on the filing of an
application for a new permit and may be effective until a decision is
made thereon.
(b) In the event of a proposed voluntary transfer of the facility,
the permittee and the party to whom the transfer would be made shall
file a joint application with the ERA pursuant to this paragraph,
setting forth information as required by Sec. 205.320 et seq., together
with a statement of reasons for the transfer. The application shall be
accompanied by a filing fee pursuant to Sec. 205.326.
(c) No substantial change shall be made in any facility authorized
by permit or in the operation thereof unless or until such change has
been approved by the ERA.
(d) Permits may be modified or revoked without notice by the
President
[[Page 40]]
of the United States, or by the Administrator of the ERA after public
notice.
Sec. 205.324 Form and style; number of copies.
All applicants shall file an original and two conformed copies of
the application and all accompanying documents required under Sec. Sec.
205.320 through 205.327.
Sec. 205.325 Annual report.
Persons receiving permits to construct, connect, operate or maintain
electric transmission facilities at international boundaries shall
submit to the ERA, by February 15 each year, a report covering each
month of the preceding calendar year, detailing by category the gross
amount of kilowatt-hours of energy received or delivered and the cost
and revenue associated with each category.
Sec. 205.326 Filing procedures and fees.
Applications shall be forwarded to the Office of Utility Systems of
the Economic Regulatory Administration and shall be accompanied by a
filing fee of $150. The application fee will be charged irrespective of
the ERA's disposition of the application. Fee payment shall be by check,
draft, or money order payable to the Treasurer of the United States.
Copies of applications shall be furnished to the Federal Energy
Regulatory Commission and all affected State public utility regulatory
agencies.
Sec. 205.327 Other information.
The applicant may be required after filing the application to
furnish such supplemental information as the ERA may deem pertinent.
Such requests shall be written and a prompt response will be expected.
Protest regarding the supplying of such information should be directed
to the Administrator of the ERA.
Sec. 205.328 Environmental requirements for Presidential Permits--Alternative 1.
(a) NEPA Compliance. Except as provided in paragraphs (c) and (e) of
this section, when an applicant seeks a Presidential Permit, such
applicant will be responsible for the costs of preparing any necessary
environmental document, including an Environmental Impact Statement
(EIS), arising from ERA's obligation to comply with the National
Environmental Policy Act of 1969 (NEPA). ERA will determine whether an
environmental assessment (EA) or EIS is required within 45 days of the
receipt of the Presidential Permit application and of environmental
information submitted pursuant to 10 CFR 205.322 (c) and (d). ERA will
use these and other sources of information as the basis for making the
environmental determination:
(1) If an EIS is determined to be necessary, the applicant shall
enter into a contract with an independent third party, which may be a
Government-owned, contractor-operated National Laboratory, or a
qualified private entity selected by ERA. The third party contractor
must be qualified to conduct an environmental review and prepare an EIS,
as appropriate, under the supervision of ERA, and may not have a
financial or other interest in the outcome of the proceedings. The NEPA
process must be completed and approved before ERA will issue a
Presidential Permit.
(2) If an EA is determined to be necessary, the applicant may be
permitted to prepare an environmental assessment pursuant to 10 CFR
1506.5(b) for review and adoption by ERA, or the applicant may enter
into a third party contract as set forth in this section.
(b) Environmental Review Procedure. Except as provided in paragraphs
(c) and (e) of this section, environmental documents, including the EIS,
where necessary, will be prepared utilizing the process set forth above.
ERA, the applicant, and the independent third party, which may be a
Government-owned, contractor-operated National Laboratory or a private
entity, shall enter into an agreement in which the applicant will engage
and pay directly for the services of the qualified third party to
prepare the necessary environmental documents. The agreement shall
outline the responsibilities of each party and its relationship to the
other two parties regarding the work to be done or supervised. ERA shall
approve the information to be developed and supervise the gathering,
analysis
[[Page 41]]
and presentation of the information. In addition, ERA will have the
authority to approve and modify any statement, analysis, and conclusion
contained in the environmental documents prepared by the third party.
Before commencing preparation of the environmental document the third
party will execute an ERA-prepared disclosure document stating that it
does not have any conflict of interest, financial or otherwise, in the
outcome of either the environmental process or the Permit application.
(c) Financial Hardship. Whenever ERA determines that a project is no
longer economically feasible, or that a substantial financial burden
would be imposed by the applicant bearing all of the costs of the NEPA
studies, ERA may waive the requirement set forth in paragraphs (a) and
(b) of this section and perform the necessary environmental review,
completely or in part, with its own resources.
(d) Discussions Prior to Filing. Prior to the preparation of any
Presidential Permit application and environmental report, a potential
applicant is encouraged to contact ERA and each affected State public
utility regulatory agency to discuss the scope of the proposed project
and the potential for joint State and Federal environmental review.
(e) Federal Exemption. Upon a showing by the applicant that it is
engaged in the transaction of official business of the Federal
Government in filing the application pursuant to 10 CFR 205.320 et seq.,
it will be exempt from the requirements of this section.
[48 FR 33819, July 25, 1983]
Sec. 205.329 Environmental requirements for Presidential Permits--Alternative
2.
(a) NEPA Compliance. Except as provided in paragraph (b) and (e) of
this section, applicants seeking Presidential Permits will be
financially responsible for the expenses of any contractor chosen by ERA
to prepare any necessary environmental document arising from ERA's
obligation to comply with the National Environmental Policy Act of 1969
(NEPA) in issuing such Presidential Permits:
(1) ERA will determine whether an Environmental Impact Statement
(EIS) or an Environmental Assessment (EA) is required within 45 days of
receipt of the Presidential Permit application and of the environmental
information submitted pursuant to 10 CFR 205.322 (c) and (d). ERA will
use these and other sources of information as the basis for making the
environmental determination.
(2) If an EIS is determined to be necessary, ERA will notify the
applicant of the fee for completing the EIS within 90 days after the
submission of the application and environmental information. The fee
shall be based on the expenses estimated to be incurred by DOE in
contracting to prepare the EIS (i.e., the estimated fee charges to ERA
by the contractor). DOE employee salaries and other fixed costs, as set
forth in OMB Circular A-25, shall not be included in the applicant's
fee. Fee payment shall be by check, draft, or money order payable to the
Treasurer of the United States, and shall be submitted to ERA. Upon
submission of fifty percent of the environmental fee, ERA will provide
to the applicant a tentative schedule for completion of the EIS.
(3) If an EA is determined to be necessary, the applicant may be
permitted to prepare an environmental assessment pursuant to 40 CFR
1506.5(b) for review and adoption by ERA, or the applicant may choose to
have ERA prepare the EA pursuant to the fee procedures set forth above.
(4) The NEPA process must be completed and approved before ERA will
issue a Presidential Permit.
(b) Financial Hardship. Whenever ERA determines that a project is no
longer economically feasible, or that a substantial financial burden
would be imposed by the applicant bearing all of the costs of the NEPA
studies, ERA may waive the requirement set forth in paragraphs (a) and
(b) of this section and perform the necessary environmental review,
completely or in part, with its own resources.
(c) Discussions Prior to Filing. Prior to the preparation of any
Presidential Permit application and environmental
[[Page 42]]
assessment, a potential applicant is encouraged to contact ERA and each
affected State public utility regulatory agency to discuss the scope of
the proposed project and the potential for joint State and Federal
environmental review.
(d) Fee Payment. The applicant shall make fee payment for completing
the EIS to ERA in the following manner:
(1) 50 percent of the total amount due to be paid within 30 days of
receipt of the fee information from DOE;
(2) 25 percent to be paid upon publication of the draft EIS; and
(3) 25 percent to be paid upon publication of the final EIS.
If costs are less than the amount collected, ERA will refund to the
applicant the excess fee collected. If costs exceed the initial fee, ERA
will fund the balance, unless the increase in costs is caused by actions
or inactions of the applicant, such as the applicant's failure to submit
necessary environmental information in a timely fashion. If the
application is withdrawn at any stage prior to issuance of the final
EIS, the fee will be adjusted to reflect the costs actually incurred;
payment shall be made by the applicant within 30 days of above
referenced events.
(e) Federal Exemption. Upon a showing by the applicant that it is
engaged in the transaction of official business of the Federal
Government in filing an application pursuant to 10 CFR 205.320 et seq.,
it will be exempt from the requirements of this section.
[48 FR 33820, July 25, 1983]
Report of Major Electric Utility System Emergencies
Authority: Department of Energy Organization Act, Pub. L. 95-91 (42
U.S.C. 7101); Federal Power Act, Pub. L. 66-280 (16 U.S.C. 791 et seq.)
Source: Sections 205.350 through 205.353 appear at 51 FR 39745, Oct.
31, 1986, unless otherwise noted.
Sec. 205.350 General purpose.
The purpose of this rule is to establish a procedure for the Office
of International Affairs and Energy Emergencies (IE) to obtain current
information regarding emergency situations on the electric energy supply
systems in the United States so that appropriate Federal emergency
response measures can be implemented in a timely and effective manner.
The data also may be utilized in developing legislative recommendations
and reports to the Congress.
(Approved by the Office of Management and Budget under control number
1901-0288)
Sec. 205.351 Reporting requirements.
For the purpose of this section, a report or a part of a report may
be made jointly by two or more entities. Every electric utility or other
entity engaged in the generation, transmission or distribution of
electric energy for delivery and/or sale to the public shall report
promptly, through the DOE Emergency Operations Center, by telephone, the
occurrence of any event such as described in paragraphs (a) through (d)
of this section. These reporting procedures are mandatory. Entities that
fail to comply within 24 hours will be contacted and reminded of their
reporting obligation.
(a) Loss of Firm System Loads, caused by:
(1) Any load shedding actions resulting in the reduction of over 100
megawatts (MW) of firm customer load for reasons of maintaining the
continuity of the bulk electric power supply system.
(2) Equipment failures/system operational actions attributable to
the loss of firm system loads for a period in excess of 15 minutes, as
described below:
(i) Reports from entities with a previous year recorded peak load of
over 3000 MW are required for all such losses of firm loads which total
over 300 MW.
(ii) Reports from all other entities are required for all such
losses of firm loads which total over 200 MW or 50 percent of the system
load being supplied immediately prior to the incident, whichever is
less.
(3) Other events or occurrences which result in a continuous
interruption for 3 hours or longer to over 50,000 customers, or more
than 50 percent of the total customers being served immediately prior to
the interruption, whichever is less.
(b) Voltage Reductions or Public Appeals:
[[Page 43]]
(1) Reports are required for any anticipated or actual system
voltage reductions of 3 percent or greater for purposes of maintaining
the continuity of the bulk electric power supply system.
(2) Reports are required for any issuance of a public appeal to
reduce the use of electricity for purposes of maintaining the continuity
of the bulk electric power system.
(c) Vulnerabilities that could Impact System Reliability:
(1) Reports are required for any actual or suspected act(s) of
physical sabotage (not vandalism) or terrorism directed at an electric
power supply system, local or regional, in an attempt to either:
(i) Disrupt or degrade the service reliability of the local or
regional bulk electric power supply system, or
(ii) Disrupt, degrade, or deny bulk electric power service to:
(A) A specific facility (industrial, military, governmental,
private), or
(B) A specific service (transportation, communications), or
(C) A specific locality (town, city, county).
(2) Reports are required for any abnormal emergency system operating
condition(s) or other event(s) which in the judgment of the reporting
entity could or would constitute a hazard to maintaining the continuity
of the bulk electric power supply system. Examples will be provided in
the DOE pamphlet on reporting procedures.
(d) Fuel Supply Emergencies:
(1) Reports are required for any anticipated or existing fuel supply
emergency situation which would threaten the continuity of the bulk
electric power supply system, such as:
(i) Fuel stocks or hydro project water storage levels are at 50
percent (or less) of normal for that time of the year, and a continued
downward trend is projected.
(ii) Unscheduled emergency generation is dispatched causing an
abnormal use of a particular fuel type, such that the future supply or
stocks of that fuel could reach a level which threatens the reliability
or adequacy of electric service.
(Approved by the Office of Management and Budget under control number
1901-0288)
Sec. 205.352 Information to be reported.
The emergency situation data shall be supplied to the DOE Emergency
Operations Center in accordance with the current DOE pamphlet on
reporting procedures. The initial report shall include the utility name;
the area affected; the time of occurrence of the initiating event; the
duration or an estimate of the likely duration; an estimate of the
number of customers and amount of load involved; and whether any known
critical services such as hospitals, military installations, pumping
stations or air traffic control systems, were or are interrupted. To the
extent known or reasonably suspected, the report shall include a
description of the events initiating the disturbance. The DOE may
require further clarification during or after restoration of service.
(Approved by the Office of Management and Budget under control number
1901-0288)
Sec. 205.353 Special investigation and reports.
If directed by the Director, Office of Energy Emergency Operations
in writing and noticed in the Federal Register, a utility or other
subject entity experiencing a condition described in Sec. 205.351 above
shall submit a full report of the technical circumstances surrounding a
specific power system disturbance, including the restoration procedures
utilized. The report shall be filed at such times as may be directed by
the Director, Office of Energy Emergency Operations.
(Approved by the Office of Management and Budget under control number
1901-0288)
Emergency Interconnection of Electric Facilities and the Transfer of
Electricity To Alleviate an Emergency Shortage of Electric Power
Authority: Department of Energy Organization Act, Pub. L. 95-91, 91
Stat. 565 (42 U.S.C. 7101). Federal Power Act, Pub. L. 66-280, 41 Stat.
1063 (16 U.S.C. 791(a))
Source: Sections 205.370 through 205.379 appear at 46 FR 39987, Aug.
6, 1981, unless otherwise noted.
[[Page 44]]
Sec. 205.370 Applicability.
Sections 202(c) and 202(d) of the Federal Power Act are applicable
to any ``entity'' which owns or operates electric power generation,
transmission or distribution facilities. An ``entity'' is a private or
public corporation (utility), a governmental agency, a municipality, a
cooperative or a lawful association of the foregoing. Under this
section, the DOE has the authority to order the temporary connection of
facilities, or the generation or delivery of electricity, which it deems
necessary to alleviate an emergency. Such orders shall be effective for
the time specified and will be subject to the terms and conditions the
DOE specifies. The DOE retains the right to cancel, modify or otherwise
change any order, with or without notice, hearing, or report. Requests
for action under these regulations will be accepted from any ``entity,''
State Public Utility Commission, State Energy Agency, or State Governor.
Actions under these regulations also may be initiated by the DOE on its
own motion. Orders under this authority may be made effective without
prior notice.
Sec. 205.371 Definition of emergency.
``Emergency,'' as used herein, is defined as an unexpected
inadequate supply of electric energy which may result from the
unexpected outage or breakdown of facilities for the generation,
transmission or distribution of electric power. Such events may be the
result of weather conditions, acts of God, or unforeseen occurrences not
reasonably within the power of the affected ``entity'' to prevent. An
emergency also can result from a sudden increase in customer demand, an
inability to obtain adequate amounts of the necessary fuels to generate
electricity, or a regulatory action which prohibits the use of certain
electric power supply facilities. Actions under this authority are
envisioned as meeting a specific inadequate power supply situation.
Extended periods of insufficient power supply as a result of inadequate
planning or the failure to construct necessary facilities can result in
an emergency as contemplated in these regulations. In such cases, the
impacted ``entity'' will be expected to make firm arrangements to
resolve the problem until new facilities become available, so that a
continuing emergency order is not needed. Situations where a shortage of
electric energy is projected due solely to the failure of parties to
agree to terms, conditions or other economic factors relating to
service, generally will not be considered as emergencies unless the
inability to supply electric service is imminent. Where an electricity
outage or service inadequacy qualifies for a section 202(c) order,
contractual difficulties alone will not be sufficient to preclude the
issuance of an emergency order.
Sec. 205.372 Filing procedures; number of copies.
An original and two conformed copies of the applications and reports
required under Sec. Sec. 205.370 through 205.379 shall be filed with
the Division of Power Supply and Reliability, Department of Energy.
Copies of all documents also shall be served on:
(a) The Federal Energy Regulatory Commission;
(b) Any State Regulatory Agency having responsibility for service
standards, or rates of the ``entities'' that are affected by the
requested order;
(c) Each ``entity'' suggested as a potential source for the
requested emergency assistance;
(d) Any ``entity'' that may be a potential supplier of transmission
services;
(e) All other ``entities'' not covered under paragraphs (c) and (d)
of this section which may be directly affected by the requested order;
and
(f) The appropriate Regional Reliability Council.
Sec. 205.373 Application procedures.
Every application for an emergency order shall set forth the
following information as required. This information shall be considered
by the DOE in determining that an emergency exists and in deciding to
issue an order pursuant to sections 202(c) and 202(d) of the Federal
Power Act.
(a) The exact legal name of the applicant and of all other
``entities'' named in the application.
[[Page 45]]
(b) The name, title, post office address, and telephone number of
the person to whom correspondence in regard to the application shall be
addressed.
(c) The political subdivision in which each ``entity'' named in the
application operates, together with a brief description of the area
served and the business conducted in each location.
(d) Each application for a section 202(c) order shall include the
following baseline data:
(1) Daily peak load and energy requirements for each of the past 30
days and projections for each day of the expected duration of the
emergency;
(2) All capacity and energy receipts or deliveries to other electric
utilities for each of the past 30 days, indicating the classification
for each transaction;
(3) The status of all interruptible customers for each of the past
30 days and the anticipated status of these customers for each day of
the expected duration of the emergency, assuming both the granting and
the denial of the relief requested herein;
(4) All scheduled capacity and energy receipts or deliveries to
other electric utilities for each day of the expected duration of the
emergency.
(e) A description of the situation and a discussion of why this is
an emergency, including any necessary background information. This
should include any contingency plan of the applicant and the current
level of implementation.
(f) A showing that adequate electric service to firm customers
cannot be maintained without additional power transfers.
(g) A description of any conservation or load reduction actions that
have been implemented. A discussion of the achieved or expected results
or these actions should be included.
(h) A description of efforts made to obtain additional power through
voluntary means and the results of such efforts; and a showing that the
potential sources of power and/or transmission services designated
pursuant to paragraphs (i) through (k) of this section informed that the
applicant believed that an emergency existed within the meaning of Sec.
205.371.
(i) A listing of proposed sources and amounts of power necessary
from each source to alleviate the emergency and a listing of any other
``entities'' that may be directly affected by the requested order.
(j) Specific proposals to compensate the supplying ``entities'' for
the emergency services requested and to compensate any transmitting
``entities'' for services necessary to deliver such power.
(k) A showing that, to the best of the applicant's knowledge, the
requested relief will not unreasonably impair the reliability of any
``entity'' directly affected by the requested order to render adequate
service to its customers.
(l) Description of the facilities to be used to transfer the
requested emergency service to the applicant's system.
(1) If a temporary interconnection under the provisions of section
202(c) is proposed independently, the following additional information
shall be supplied for each such interconnection:
(i) Proposed location;
(ii) Required thermal capacity or power transfer capability of the
interconnection;
(iii) Type of emergency services requested, including anticipated
duration;
(iv) An electrical one line diagram;
(v) A description of all necessary materials and equipment; and
(vi) The projected length of time necessary to complete the
interconnection.
(2) If the requested emergency assistance is to be supplied over
existing facilities, the following information shall be supplied for
each existing interconnection:
(i) Location;
(ii) Thermal capacity of power transfer capability of
interconnection facilities; and
(iii) Type and duration of emergency services requested.
(m) A general or key map on a scale not greater than 100 kilometers
to the centimeter showing, in separate colors, the territory serviced by
each ``entity'' named in the application; the location of the facilities
to be used for the generation and transmission of the requested
emergency service; and all connection points between systems.
[[Page 46]]
(n) An estimate of the construction costs of any proposed temporary
facilities and a statement estimating the expected operation and
maintenance costs on an annualized basis. (Not required on section
202(d) applications.)
(o) Applicants may be required to furnish such supplemental
information as the DOE may deem pertinent.
Sec. 205.374 Responses from ``entities'' designated in the application.
Each ``entity'' designated as a potential source of emergency
assistance or as a potential supplier of transmission services and which
has received a copy of the application under Sec. 205.373, shall have
three (3) calendar days from the time of receipt of the application to
file the information designated below with the DOE. The DOE will grant
extensions of the filing period when appropriate. The designated
``entities'' shall provide an analysis of the impact the requested
action would have on its system reliability and its ability to supply
its own interruptible and firm customers. The effects of the requested
action on the ability to serve firm loads shall be clearly distinguished
from the ability to serve contractually interruptible loads. The
designated ``entity'' also may provide other information relevant to the
requested action, which is not included in the reliability analysis.
Copies of any response shall be provided to the applicant, the Federal
Energy Regulatory Commission, any State Regulatory Agency having
responsibility for service standards or rates of any ``entity'' that may
be directly involved in the proposed action, and the appropriate
Regional Electric Reliability Council. Pursuant to section 202(c) of the
Federal Power Act, DOE may issue an emergency order even though a
designated ``entity'' has failed to file a timely response.
Sec. 205.375 Guidelines defining inadequate fuel or energy supply.
An inadequate utility system fuel inventory or energy supply is a
matter of managerial and engineering judgment based on such factors as
fuels in stock, fuels en route, transportation time, and constraints on
available storage facilities. A system may be considered to have an
inadequate fuel or energy supply capability when, combined with other
conditions, the projected energy deficiency upon the applicant's system
without emergency action by the DOE, will equal or exceed 10 percent of
the applicant's then normal daily net energy for load, or will cause the
applicant to be unable to meet its normal peak load requirements based
upon use of all of its otherwise available resources so that it is
unable to supply adequate electric service to its ultimate customers.
The following conditions will be considered in determining that a system
has inadequate fuel or energy supply capability:
(1) System coal stocks are reduced to 30 days (or less) of normal
burn days and a continued downward trend in stock is projected;
(2) System residual oil stocks are reduced to 15 days (or less) of
normal burn days and a continued downward trend in stocks is projected;
(3) System distillate oil stocks which cannot be replaced by
alternate fuels are reduced to 15 days (or less) of normal burn days and
a continued downward trend in stocks is projected;
(4) System natural gas deliveries which cannot be replaced by
alternate fuels have been or will be reduced 20 percent below normal
requirements and no improvement in natural gas deliveries is projected
within 30 days;
(5) Delays in nuclear fuel deliveries will extend a scheduled
refueling shutdown by more than 30 days; and
(6) Water supplies required for power generation have been reduced
to the level where the future adequacy of the power supply may be
endangered and no near term improvement in water supplies is projected.
The use of the prescribed criteria does not preclude an applicant from
claiming the existence of an emergency when its stocks of fuel or water
exceed the amounts and time frames specified above.
Sec. 205.376 Rates and charges.
The applicant and the generating or transmitting systems from which
emergency service is requested are encouraged to utilize the rates and
charges contained in approved existing rate schedules or to negotiate
mutually satisfactory rates for the proposed
[[Page 47]]
transactions. In the event that the DOE determines that an emergency
exists under section 202(c), and the ``entities'' are unable to agree on
the rates to be charged, the DOE shall prescribe the conditions of
service and refer the rate issues to the Federal Energy Regulatory
Commission for determination by that agency in accordance with its
standards and procedures.
Sec. 205.377 Reports.
In addition to the information specified below, the DOE may require
additional reports as it deems necessary.
(a) Where the DOE has authorized the temporary connection of
transmission facilities, all ``entities'' whose transmission facilities
are thus temporarily interconnected shall report the following
information to the DOE within 15 days following completion of the
interconnection:
(1) The date the temporary interconnection was completed;
(2) The location of the interconnection;
(3) A description of the interconnection; and
(4) A one-line electric diagram of the interconnection.
(b) Where the DOE orders the transfer of power, the ``entity''
receiving such service shall report the following information to the DOE
by the 10th of each month for the preceding month's activity for as long
as such order shall remain in effect:
(1) Amounts of capacity and/or energy received each day;
(2) The name of the supplier;
(3) The name of any ``entity'' supplying transmission services; and
(4) Preliminary estimates of the associated costs.
(c) Where the DOE has approved the installation of permanent
facilities that will be used only during emergencies, any use of such
facilities shall be reported to the DOE within 24 hours. Details of such
usage shall be furnished as deemed appropriate by the DOE after such
notification.
(d) Any substantial change in the information provided under Sec.
205.373 shall be promptly reported to the DOE.
(Approved by the Office of Management and Budget under Control No. 1904-
0066)
[46 FR 39989, Aug. 6, 1981, as amended at 46 FR 63209, Dec. 31, 1981]
Sec. 205.378 Disconnection of temporary facilities.
Upon the termination of any emergency for the mitigation of which
the DOE ordered the construction of temporary facilities, such
facilities shall be disconnected and any temporary construction removed
or otherwise disposed of, unless application is made as provided in
Sec. 205.379 for permanent connection for emergency use. This
disconnection and removal of temporary facilities shall be accomplished
within 30 days of the termination of the emergency unless an extension
is granted by the DOE. The DOE shall be notified promptly when such
removal of facilities is completed.
Sec. 205.379 Application for approval of the installation of permanent
facilities for emergency use only.
Application for DOE approval of a permanent connection for emergency
use only shall conform with the requirements in Sec. 205.373. However,
the baseline data specified in Sec. 205.373(d) need not be included in
an application made under this section. In addition, the application
shall state in full the reasons why such permanent connection for
emergency use is in the public interest.
PART 207_COLLECTION OF INFORMATION--Table of Contents
Subpart A_Collection of Information Under the Energy Supply and
Environmental Coordination Act of 1974
Sec.
207.1 Purpose.
207.2 Definitions.
207.3 Method of collecting energy information under ESECA.
207.4 Confidentiality of energy information.
207.5 Violations.
207.6 Notice of probable violation and remedial order.
207.7 Sanctions.
207.8 Judicial actions.
[[Page 48]]
207.9 Exceptions, exemptions, interpretations, rulings and rulemaking.
Authority: 15 U.S.C. 787 et seq.; 15 U.S.C. 791 et seq.; E.O. 11790,
39 FR 23185; 28 U.S.C. 2461 note.
Source: 40 FR 18409, Apr. 28, 1975, unless otherwise noted.
Subpart A_Collection of Information Under the Energy Supply and
Environmental Coordination Act of 1974
Sec. 207.1 Purpose.
The purpose of this subpart is to set forth the manner in which
energy information which the Administrator is authorized to obtain by
sections 11 (a) and (b) of ESECA will be collected.
Sec. 207.2 Definitions.
As used in this subpart:
Administrator means the Federal Energy Administrator of his
delegate.
Energy information includes all information in whatever form on (1)
fuel reserves, exploration, extraction, and energy resources (including
petrochemical feedstocks) wherever located; (2) production,
distribution, and consumption of energy and fuels, wherever carried on;
and (3) matters relating to energy and fuels such as corporate structure
and proprietary relationships, costs, prices, capital investment, and
assets, and other matters directly related thereto, wherever they exist.
ESECA means the Energy Supply and Environmental Coordination Act of
1974 (Pub. L. 93-319).
EPAA means the Emergency Petroleum Allocation Act of 1973 (Pub. L.
93-159).
DOE means the Department of Energy.
Person means any natural person, corporation, partnership,
association, consortium, or any entity organized for a common business
purpose, wherever situated, domiciled, or doing business, who directly
or through other persons subject to their control does business in any
part of the United States.
United States, when used in the geographical sense, means the
States, the District of Columbia, Puerto Rico, and the territories and
possessions of the United States.
Sec. 207.3 Method of collecting energy information under ESECA.
(a) Whenever the Administrator determines that:
(1) Certain energy information is necessary to assist in the
formulation of energy policy or to carry out the purposes of the ESECA
of the EPAA; and
(2) Such energy information is not available to DOE under the
authority of statutes other than ESECA or that such energy information
should, as a matter of discretion, be collected under the authority of
ESECA;
He shall require reports of such information to be submitted to DOE at
least every ninety calendar days.
(b) The Administrator may require such reports of any person who is
engaged in the production, processing, refining, transportation by
pipeline, or distribution (at other than the retail level) of energy
resources.
(c) The Administrator may require such reports by rule, order,
questionnaire, or such other means as he determines appropriate.
(d) Whenever reports of energy information are requested under this
subpart, the rule, order, questionnaire, or other means requesting such
reports shall contain (or be accompanied by) a recital that such reports
are being requested under the authority of ESECA.
(e) In addition to requiring reports, the Administrator may, at his
discretion, in order to obtain energy information under the authority of
ESECA:
(1) Sign and issue subpoenas in accordance with the provisions of
Sec. 205.8 of this chapter for the attendance and testimony of
witnesses and the production of books, records, papers, and other
documents;
(2) Require any person, by rule or order, to submit answers in
writing to interrogatories, requests for reports or for other
information, with such answers or other submissions made within such
reasonable period as is specified in the rule or order, and under oath;
and
(3) Administer oaths.
Any such subpoena or rule or order shall contain (or be accompanied by)
a recital that energy information is requested under the authority of
ESECA.
[[Page 49]]
(f) For the purpose of verifying the accuracy of any energy
information requested, acquired, or collected by the DOE, the
Administrator, or any officer or employee duly designated by him, upon
presenting appropriate credentials and a written notice from the
Administrator to the owner, operator, or agent in charge, may--
(1) Enter, at reasonable times, any business premise of facility;
and
(2) Inspect, at reasonable times and in a reasonable manner, any
such premise or facility, inventory and sample any stock of energy
resources therein, and examine and copy books, records, papers, or other
documents, relating to any such energy information.
Such written notice shall reasonably describe the premise or facility to
be inspected, the stock to be inventoried or sampled, or the books,
records, papers or other documents to be examined or copied.
Sec. 207.4 Confidentiality of energy information.
(a) Information obtained by the DOE under authority of ESECA shall
be available to the public in accordance with the provisions of part 202
of this chapter. Upon a showing satisfactory to the Administrator by any
person that any energy information obtained under this subpart from such
person would, if made public, divulge methods or processes entitled to
protection as trade secrets or other proprietary information of such
person, such information, or portion thereof, shall be deemed
confidential in accordance with the provisions of section 1905 of title
18, United States Code; except that such information, or part thereof,
shall not be deemed confidential pursuant to that section for purposes
of disclosure, upon request, to (1) any delegate of the DOE for the
purpose of carrying out ESECA or the EPAA, (2) the Attorney General, the
Secretary of the Interior, the Federal Trade Commission, the Federal
Power Commission, or the General Accounting Office, when necessary to
carry out those agencies' duties and responsibilities under ESECA and
other statutes, and (3) the Congress, or any Committee of Congress upon
request of the Chairman.
(b) Whenever the Administrator requests reports of energy
information under this subpart, he may specify (in the rule, order or
questionnaire or other means by which he has requested such reports) the
nature of the showing required to be made in order to satisfy DOE that
certain energy information contained in such reports warrants
confidential treatment in accordance with this section. He shall, to the
maximum extent practicable, either before or after requesting reports,
by ruling or otherwise, inform respondents providing energy information
pursuant to this subpart of whether such information will be made
available to the public pursuant to requests under the Freedom of
Information Act (5 U.S.C. 552).
Sec. 207.5 Violations.
Any practice that circumvents or contravenes or results in a
circumvention or contravention of the requirements of any provision of
this subpart or any order issued pursuant thereto is a violation of the
DOE regulations stated in this subpart.
Sec. 207.6 Notice of probable violation and remedial order.
(a) Purpose and scope. (1) This section establishes the procedures
for determining the nature and extent of violations of this subpart and
the procedures for issuance of a notice of probable violation, a
remedial order or a remedial order for immediate compliance.
(2) When the DOE discovers that there is reason to believe a
violation of any provision of this subpart, or any order issued
thereunder, has occurred, is continuing or is about to occur, the DOE
may conduct proceedings to determine the nature and extent of the
violation and may issue a remedial order thereafter. The DOE may
commence such proceeding by serving a notice of probable violation or by
issuing a remedial order for immediate compliance.
(b) Notice of probable violation. (1) The DOE may begin a proceeding
under this subpart by issuing a notice of probable violation if the DOE
has reason to believe that a violation has occurred, is continuing, or
is about to occur.
[[Page 50]]
(2) Within 10 days of the service of a notice of probable violation,
the person upon whom the notice is served may file a reply with the DOE
office that issued the notice of probable violation at the address
provided in Sec. 205.12 of this chapter. The DOE may extend the 10-day
period for good cause shown.
(3) 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 of probable violation. Such facts shall include a complete
statement of the business or other reasons that justify the act or
transaction, it 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 documents shall be submitted with the reply.
(4) 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.
(5) 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 part 205 of this chapter.
(6) If a person has not filed a reply with the DOE within the 10-day
period provided, and the DOE 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 of probable
violation.
(7) If the DOE finds, after the 10-day period provided in Sec.
207.6(b)(2), that no violation has occurred, is continuing, or is about
to occur, or that for any reason the issuance of a remedial order would
not be appropriate, it shall notify, in writing, the person to whom a
notice of probable violation has been issued that the notice is
rescinded.
(c) Remedial order. (1) If the DOE finds, after the 10-day period
provided in Sec. 207.6(b)(2), that a violation has occurred, is
continuing, or is about to occur, the DOE may issue a remedial order.
The order shall include a written opinion setting forth the relevant
facts and the legal basis of the remedial order.
(2) A remedial order issued under this subpart shall be effective
upon issuance, in accordance with its terms, until stayed, suspended,
modified or rescinded. The DOE may stay, suspend, modify or rescind a
remedial order on its own initiative or upon application by the person
to whom the remedial order is issued. Such action and application shall
be in accordance with the procedures for such proceedings provided for
in part 205 of this chapter.
(3) A remedial order may be referred at any time to the Department
of Justice for appropriate action in accordance with Sec. 207.7.
(d) Remedial order for immediate compliance. (1) Notwithstanding
paragraphs (b) and (c) of this section, the DOE may issue a remedial
order for immediate compliance, which shall be effective upon issuance
and until rescinded or suspended, if it finds:
(i) There is a strong probability that a violation has occurred, is
continuing or is about to occur;
(ii) Irreparable harm will occur unless the violation is remedied
immediately; and
(iii) The public interest requires the avoidance of such irreparable
harm through immediate compliance and waiver of the procedures afforded
under paragraphs (b) and (c) of this section.
(2) A remedial order for immediate compliance 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 remedial order for immediate compliance, including the
findings required by paragraph (d)(1) of this section.
(3) The DOE may rescind or suspend a remedial order for immediate
compliance if it appears that the criteria set forth in paragraph (d)(1)
of this section
[[Page 51]]
are no longer satisfied. When appropriate, however, such a suspension or
rescission may be accompanied by a notice of probable violation issued
under paragraph (b) of this section.
(4) If at any time in the course of a proceeding commenced by a
notice of probable violation the criteria set forth in paragraph (d)(1)
of this section are satisfied, the DOE may issue a remedial order for
immediate compliance, even if the 10-day period for reply specified in
Sec. 207.6(b)(2) of this part has not expired.
(5) At any time after a remedial order for immediate compliance has
become effective the DOE may refer such order to the Department of
Justice for appropriate action in accordance with Sec. 207.7 of this
part.
(e) Remedies. A remedial order or a remedial order for immediate
compliance may require the person to whom it is directed to take such
action as the DOE determines is necessary to eliminate or to compensate
for the effects of a violation.
(f) Appeal. (1) No notice of probable violation issued pursuant to
this subpart shall be deemed to be an action of which there may be an
administrative appeal.
(2) Any person to whom a remedial order or a remedial order for
immediate compliance is issued under this subpart may file an appeal
with the DOE Office of Exceptions and Appeals in accordance with the
procedures for such appeal provided in subpart H of part 205 of this
chapter. The appeal must be filed within 10 days of service of the order
from which the appeal is taken.
Sec. 207.7 Sanctions.
(a) General. (1) Penalties and sanctions shall be deemed cumulative
and not mutually exclusive.
(2) Each day that a violation of the provisions of this subpart or
any order issued pursuant thereto continues shall be deemed to
constitute a separate violation within the meaning of the provisions of
this subpart relating to criminal fines and civil penalties.
(b) Criminal penalties. Any person who willfully violates any
provision of this subpart or any order issued pursuant thereto shall be
subject to a fine of not more than $5,000 for each violation. Criminal
violations are prosecuted by the Department of Justice upon referral by
the DOE.
(c) Civil Penalties. (1) Any person who violates any provision of
this subpart or any order issued pursuant thereto shall be subject to a
civil penalty of not more than $4,000 for each violation. Actions for
civil penalties are prosecuted by the Department of Justice upon
referral by the DOE.
(2) When the DOE considers it to be appropriate or advisable, the
DOE may compromise and settle, and collect civil penalties.
[40 FR 18409, Apr. 28, 1975, as amended at 62 FR 46183, Sept. 2, 1997;
74 FR 66032, Dec. 14, 2009]
Sec. 207.8 Judicial actions.
(a) Enforcement of subpoenas; contempt. Any United States district
court within the jurisdiction of which any inquiry is carried on may,
upon petition by the Attorney General at the request of the
Administrator, in the case of refusal to obey a subpoena or order of the
Administrator issued under this subpart, issue an order requiring
compliance. Any failure to obey such an order of the court may be
punished by the court as contempt.
(b) Injunctions. Whenever it appears to the Administrator 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 subpart, the Administrator may request the Attorney General
to bring a civil 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 preliminary or permanent injunction shall
be granted without bond. The relief sought may include a mandatory
injunction commanding any person to comply with any provision of such
order or regulation, the violation of which is prohibited by section
12(a) of ESECA, as implemented by this subpart.
[[Page 52]]
Sec. 207.9 Exceptions, exemptions, interpretations, rulings and rulemaking.
Applications for exceptions, exemptions or requests for
interpretations relating to this subpart shall be filed in accordance
with the procedures provided in subparts D, E and F, respectively, of
part 205 of this chapter. Rulings shall be issued in accordance with the
procedures of subpart K of part 205 of this chapter. Rulemakings shall
be undertaken in accordance with the procedures provided in subpart L of
part 205 of this chapter.
PART 209_INTERNATIONAL VOLUNTARY AGREEMENTS--Table of Contents
Subpart A_General Provisions
Sec.
209.1 Purpose and scope.
209.2 Delegation.
209.3 Definitions.
Subpart B_Development of Voluntary Agreements
209.21 Purpose and scope.
209.22 Initiation of meetings.
209.23 Conduct of meetings.
209.24 Maintenance of records.
Subpart C_Carrying Out of Voluntary Agreements and Developing and
Carrying Out of Plans of Actions
209.31 Purpose and scope.
209.32 Initiation of meetings.
209.33 Conduct of meetings.
209.34 Maintenance of records.
Subpart D_Availability of Information Relating to Meetings and
Communications
209.41 Availability of information relating to meetings and
communications.
Authority: Federal Energy Administration Act of 1974, Pub. L. 93-
275; E.O. 11790, 39 FR 23185; Energy Policy and Conservation Act, Pub.
L. 94-163.
Source: 41 FR 6754, Feb. 13, 1976, unless otherwise noted.
Subpart A_General Provisions
Sec. 209.1 Purpose and scope.
This part implements the provisions of the Energy Policy and
Conservation Act (EPCA) authorizing the Administrator to prescribe
standards and procedures by which persons engaged in the business of
producing, transporting, refining, distributing, or storing petroleum
may develop and carry out voluntary agreements, and plans of action
which are required to implement the information and allocation
provisions of the International Energy Program (IEP). The requirements
of this part do not apply to activities other than those for which
section 252 of EPCA makes available a defense to the antitrust laws.
Sec. 209.2 Delegation.
To the extent otherwise permitted by law, any authority, duty, or
responsibility vested in DOE or the Administrator under these
regulations may be delegated to any regular full-time employee of the
Department of Energy, and, by agreement, to any regular full-time
employee of the Department of Justice or the Department of State.
Sec. 209.3 Definitions.
For purposes of this part--
(a) Administrator means the Administrator of the Department of
Energy.
(b) Information and allocation provisions of the International
Energy Program means the provisions of chapter V of the Program relating
to the Information System, and the provisions at chapters III and IV
thereof relating to the international allocation of petroleum.
(c) International Energy Agency (IEA) means the International Energy
Agency established by Decision of the Council of the Organization for
Economic Cooperation and Development, dated November 15, 1974.
(d) International Energy Program (IEP) means the program established
pursuant to the Agreement on an International Energy Program signed at
Paris on November 18, 1974, including (1) the Annex entitled ``Emergency
Reserves'', (2) any amendment to such Agreement which includes another
nation as a Party to such Agreement, and (3) any technical or clerical
amendment to such Agreement.
(e) International energy supply emergency means any period (1)
beginning on any date which the President determines allocation of
petroleum products to nations participating in the international energy
program is required by
[[Page 53]]
chapters III and IV of such program, and (2) ending on a date on which
he determines such allocation is no longer required. Such a period shall
not exceed 90 days, except where the President establishes one or more
additional periods by making the determination under paragraph (e)(1) of
this section.
(f) Potential participant means any person engaged in the business
of producing, transporting, refining, distributing, or storing petroleum
products; ``participant'' means any such person who agrees to
participate in a voluntary agreement pursuant to a request to do so by
the Administrator.
(g) Petroleum or petroleum products means crude oil, residual fuel
oil, or any refined petroleum product (including any natural gas liquid
and any natural gas liquid product).
Subpart B_Development of Voluntary Agreements
Sec. 209.21 Purpose and scope.
(a) This subpart establishes the standards and procedures by which
persons engaged in the business of producing, transporting, refining,
distributing. or storing petroleum products shall develop voluntary
agreements which are required to implement the allocation and
information provisions of the International Energy Program.
(b) This subpart does not apply to meetings of bodies created by the
International Energy Agency.
Sec. 209.22 Initiation of meetings.
(a) Any meeting held for the purpose of developing a voluntary
agreement involving two or more potential participants shall be
initiated and chaired by the Administrator or other regular full-time
Federal employee designated by him.
(b) DOE shall provide notice of meetings held pursuant to this
subpart, in writing, to the Attorney General, the Federal Trade
Commission, and to the Speaker of the House and the President of the
Senate for delivery to the appropriate committees of Congress, and to
the public through publication in the Federal Register. Such notice
shall identify the time, place, and agenda of the meeting, and such
other matters as the Administrator deems appropriate. Notice in the
Federal Register shall be published at least seven days prior to the
date of the meeting.
Sec. 209.23 Conduct of meetings.
(a) Meetings to develop a voluntary agreement held pursuant to this
subpart shall be open to all interested persons. Interested persons
desiring to attend meetings under this subpart may be required pursuant
to notice to advise the Administrator in advance.
(b) Interested persons may, as set out in notice provided by the
Administrator, present data, views, and arguments orally and in writing,
subject to such reasonable limitations with respect to the manner of
presentation as the Administrator may impose.
Sec. 209.24 Maintenance of records.
(a) The Administrator shall keep a verbatim transcript of any
meeting held pursuant to this subpart.
(b)(1) Except as provided in paragraphs (b) (2) through (4) of this
section, potential participants shall keep a full and complete record of
any communications (other than in a meeting held pursuant to this
subpart) between or among themselves for the purpose of developing a
voluntary agreement under this part. When two or more potential
participants are involved in such a communication, they may agree among
themselves who shall keep such record. Such record shall include the
names of the parties to the communication and the organizations, if any,
which they represent; the date of the communication; the means of
communication; and a description of the communication in sufficient
detail to convey adequately its substance.
(2) Where any communication is written (including, but not limited
to, telex, telegraphic, telecopied, microfilmed and computer printout
material), and where such communication demonstrates on it face that the
originator or some other source furnished a copy of the communication to
the Office of International Affairs, Department of Energy with the
notation ``Voluntary Agreement'' marked on the first page of the
document, no participant need record such a communication or send a
further copy to the Department of Energy. The Department
[[Page 54]]
of Energy may, upon written notice to potential participants, from time
to time, or with reference to particular types of documents, require
deposit with other offices or officials of the Department of Energy.
Where such communication demonstrates that it was sent to the Office of
International Affairs, Department of Energy with the notation
``Voluntary Agreement'' marked on the first page of the document, or
such other offices or officials in the Department of Energy has
designated pursuant to this section it shall satisfy paragraph (c) of
this section, for the purpose of deposit with the Department of Energy.
(3) To the extent that any communication is procedural,
administrative or ministerial (for example, if it involves the location
of a record, the place of a meeting, travel arrangements, or similar
matters), only a brief notation of the date, time, persons involved and
description of the communication need be recorded.
(4) To the extent that any communication involves matters which
recapitulate matters already contained in a full and complete record,
the substance of such matters shall be identified, but need not be
recorded in detail, provided that reference is made to the record and
the portion thereof in which the substance is fully set out.
(c) Except where the Department of Energy otherwise provides, all
records and transcripts prepared pursuant to paragraphs (a) and (b) of
this section, shall be deposited within fifteen (15) days after the
close of the month of their preparation together with any agreement
resulting therefrom, with the Department of Energy, and shall be
available to the Department of Justice, the Federal Trade Commission,
and the Department of State. Such records and transcripts shall be
available for public inspection and copying to the extent set forth in
subpart D. Any person depositing material pursuant to this section shall
indicate with particularity what portions, if any, the person believes
are subject to disclosure to the public pursuant to subpart D and the
reasons for such belief.
(d) Any meeting between a potential participant and an official of
DOE for the purpose of developing a voluntary agreement shall, if not
otherwise required to be recorded pursuant to this section, be recorded
by such official as provided in Sec. 204.5.
(Approved by the Office of Management and Budget under Control No. 1905-
0079)
(Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended,
E.O. 11790, 39 FR 23185; E. O. 11930, 41 FR 32397; Energy Policy and
Conservation Act, Pub. L. 94-163; E.O. 11912, 41 FR 15825; Department of
Energy Organization Act, Pub. L. 95-91; 91 Stat. 565; E.O. 12009, 42 FR
46267)
[41 FR 6754, Feb. 13, 1976, as amended at 43 FR 12854, Mar. 28, 1978; 46
FR 63209, Dec. 31, 1981]
Subpart C_Carrying Out of Voluntary Agreements and Developing and
Carrying Out of Plans of Actions
Sec. 209.31 Purpose and scope.
This subpart establishes the standards and procedures by which
persons engaged in the business of producing, transporting, refining,
distributing, or storing petroleum products shall carry out voluntary
agreements and develop and carry out plans of action which are required
to implement the allocation and information provisions of the
International Energy Program.
Sec. 209.32 Initiation of meetings.
(a) Except for meetings of bodies created by the International
Energy Agency, any meeting among participants in a voluntary agreement
pursuant to this subpart, for the purpose of carrying out such voluntary
agreement or developing or carrying out a plan of action pursuant
thereto, shall be initiated and chaired by a full-time Federal employee
designated by the Administrator.
(b) Except as provided in paragraph (c) of this section, the
Administrator shall provide notice of meetings held pursuant to this
subpart, in writing, to the Attorney General, the Federal Trade
Commission, and to the Speaker of the House and the President of the
Senate for delivery to the appropriate committees of Congress. Except
during an international energy supply emergency, notice shall also be
provided to the public through publication in the
[[Page 55]]
Federal Register. Such notice shall identify the time, place, and agenda
of the meeting. Notice in the Federal Register shall be published at
least seven days prior to the date of the meeting unless emergency
circumstances, IEP requirements or other unanticipated circumstances
require the period to be shortened.
(c) During an international energy supply emergency, advance notice
shall be given to the Attorney General, the Federal Trade Commission and
to the Speaker of the House and the President of the Senate for delivery
to the appropriate committees of Congress. Such notice may be telephonic
or by such other means as practicable, and shall be confirmed in
writing.
Sec. 209.33 Conduct of meetings.
(a) Subject to the provisions of paragraph (c) of this section,
meetings held to carry out a voluntary agreement, or to develop or carry
out a plan of action pursuant to this subpart, shall be open to all
interested persons, subject to limitations of space. Interested persons
desiring to attend meetings under this subpart may be required to advise
the Administrator in advance.
(b) Interested persons permitted to attend meetings under this
section may present data, views, and arguments orally and in writing,
subject to such limitations with respect to the manner of presentation
as the Administrator may impose.
(c) Meetings held pursuant to this subpart shall not be open to the
public to the extent that the President or his delegate finds that
disclosure of the proceedings beyond those authorized to attend would be
detrimental to the foreign policy interests of the United States, and
determines, in consultation with the Administrator, the Secretary of
State, and the Attorney General, that a meeting shall not be open to
interested persons or that attendance by interested persons shall be
limited.
(d) The requirements of this section do not apply to meetings of
bodies created by the International Energy Agency except that no
participant in a voluntary agreement may attend any meeting of any such
body held to carry out a voluntary agreement or to develop or to carry
out a plan of action unless a full-time Federal employee is present.
Sec. 209.34 Maintenance of records.
(a) The Administrator or his delegate shall keep a verbatim
transcript of any meeting held pursuant to this subpart except where (1)
due to considerations of time or other overriding circumstances, the
keeping of a verbatim transcript is not practicable, or (2) principal
participants in the meeting are representatives of foreign governments.
If any such record other than a verbatim transcript, is kept by a
designee who is not a full-time Federal employee, that record shall be
submitted to the full-time Federal employee in attendance at the meeting
who shall review the record, promptly make any changes he deems
necessary to make the record full and complete, and shall notify the
designee of such changes.
(b)(1) Except as provided in paragraphs (b) (2) through (4) of this
section, participants shall keep a full and complete record of any
communication (other than in a meeting held pursuant to this subpart)
between or among themselves or with any other member of a petroleum
industry group created by the International Energy Agency, or subgroup
thereof for the purpose of carrying out a voluntary agreement or
developing or carrying out a plan of action under this subpart, except
that where there are several communications within the same day
involving the same participants, they may keep a cumulative record for
the day. The parties to a communication may agree among themselves who
shall keep such record. Such record shall include the names of the
parties to the communication and the organizations, if any, which they
represent; the date of communication; the means of communication, and a
description of the communication in sufficient detail to convey
adequately its substance.
(2) Where any communication is written (including, but not limited
to, telex, telegraphic, telecopied, microfilmed and computer printout
material), and where such communication demonstrates on its face that
the originator or some other source furnished a
[[Page 56]]
copy of the communication to the Office of International Affairs,
Department of Energy with the notation ``Voluntary Agreement'' on the
first page of the document, no participants need record such a
communication or send a further copy to the Department of Energy. The
Department of Energy may, upon written notice to participants, from time
to time, or with reference to particular types of documents, require
deposit with other offices or officials of the Department of Energy.
Where such communication demonstrates that it was sent to the Office of
International Affairs, Department of Energy with the notation
``Voluntary Agreement'' on the first page of the document, or such other
offices or officials as the Department of Energy has designated pursuant
to this section, it shall satisfy paragraph (c) of this section, for the
purpose of deposit with the Department of Energy.
(3) To the extent that any communication is procedural,
administrative or ministerial (for example, if it involves the location
of a record, the place of a meeting, travel arrangements, or similar
matters) only a brief notation of the date, time, persons involved and
description of the communication need be recorded; except that during an
IEA emergency allocation exercise or an allocation systems test such a
non-substantive communication between members of the Industry Supply
Advisory Group (ISAG) which occur within IEA headquarters need not be
recorded.
(4) To the extent that any communication involves matters which
recapitulate matters already contained in a full and complete record,
the substance of such matters shall be identified, but need not be
recorded in detail, provided that reference is made to the record and
the portion thereof in which the substance is fully set out.
(c) Except where the Department of Energy otherwise provides, all
records and transcripts prepared pursuant to paragraphs (a) and (b) of
this section, shall be deposited within seven (7) days after the close
of the week (ending Saturday) of their preparation during an
international energy supply emergency or a test of the IEA emergency
allocation system, and within fifteen (15) days after the close of the
month of their preparation during periods of non-emergency, together
with any agreement resulting therefrom, with the Department of Energy
and shall be available to the Department of Justice, the Federal Trade
Commission, and the Department of State. Such records and transcripts
shall be available for public inspection and copying to the extent set
forth in subpart D. Any person depositing materials pursuant to this
section shall indicate with particularity what portions, if any, the
person believes are not subject to disclosure to the public pursuant to
subpart D and the reasons for such belief.
(d) Any meeting between a participant and an official of DOE for the
purpose of carrying out a voluntary agreement or developing or carrying
out a plan of action shall, if not otherwise required to be recorded
pursuant to this section, be recorded by such official as provided in
Sec. 204.5.
(e) During international oil allocation under chapters III and IV of
the IEP or during an IEA allocation systems test, the Department of
Energy may issue such additional guidelines amplifying the requirements
of these regulations as the Department of Energy determines to be
necessary and appropriate.
(Approved by the Office of Management and Budget under Control No. 1905-
0067)
(Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended;
E.O. 11790, 39 FR 23185; E.O. 11930, 41 FR 32397; Energy Policy and
Conservation Act, Pub. L. 94-163; E.O. 11912, 41 FR 15825; Department of
Energy Organization Act, Pub. L. 95-91, 91 Stat. 565, E.O. 12009, 42 FR
46267)
[41 FR 6754, Feb. 13, 1976, as amended at 43 FR 12854, Mar. 28, 1978; 46
FR 63209, Dec. 31, 1981]
Subpart D_Availability of Information Relating to Meetings and
Communications
Sec. 209.41 Availability of information relating to meetings and
communications.
(a) Except as provided in paragraph (b) of this section, records or
transcripts prepared pursuant to this subpart shall be available for
public inspection and copying in accordance
[[Page 57]]
with section 552 of title 5, United States Code and part 202 of this
title.
(b) Matter may be withheld from disclosure under section 552(b) of
title 5 only on the grounds specified in:
(1) Section 552(b)(1), applicable to matter specifically required by
Executive Order to be kept secret in the interest of the national
defense or foreign policy. This section shall be interpreted to include
matter protected under Executive Order No. 11652 of March 8, 1972,
establishing categories and criteria for classification, as well as any
other such orders dealing specifically with disclosure of IEP related
materials;
(2) Section 552(b)(3), applicable to matter specifically exempted
from disclosure by statute; and
(3) So much of section 552(b)(4) as relates to trade secrets.
PART 210_GENERAL ALLOCATION AND PRICE RULES--Table of Contents
Subpart A_Recordkeeping
Sec.
210.1 Records.
Subparts B-D [Reserved]
Authority: Emergency Petroleum Allocation Act of 1973, Pub. L. 93-
159, E.O. 11748, 38 FR 33577; Economic Stabilization Act of 1970, as
amended, Pub. L. 92-210, 85 Stat. 743; Pub. L. 93-28, 87 Stat. 27; E.O.
11748, 38 FR 33575; Cost of Living Council Order Number 47, 39 FR 24.
Subpart A_Recordkeeping
Sec. 210.1 Records.
(a) The recordkeeping requirements that were in effect on January
27, 1981, in parts 210, 211, and 212 will remain in effect for (1) all
transactions prior to February 1, 1981; and (2) all allowed expenses
incurred and paid prior to April 1, 1981 under Sec. 212.78 of part 212.
These requirements include, but are not limited to, the requirements
that were in effect on January 27, 1981, in Sec. 210.92 of this part;
in Sec. Sec. 211.67(a)(5)(ii); 211.89; 211.109, 211.127; and 211.223 of
part 211; and in Sec. Sec. 212.78(h)(5)(ii); 212.78(h)(6);
212.83(c)(2)(iii)(E)(I); 212.83(c)(2)(iii)(E)(II); 212.83(c)(2)(iii);
``Fi t''; 212.83(i); 212.93(a); 212.93(b)(4)(iii)(B)(I);
212.93(i)(4); 212.94(b)(2)(iii); 212.128; 212.132; 212.172; and Sec.
212.187 of part 212.
(b) Effective February 5, 1985, paragraph (a) of this section shall
apply, to the extent indicated, only to firms in the following
categories. A firm may be included in more than one category, and a firm
may move from one category to another. The fact that a firm becomes no
longer subject to the recordkeeping requirements of one category shall
not relieve that firm of compliance with the recordkeeping requirements
of any other category in which the firm is still included.
(1) Those firms which are or become parties in litigation with DOE,
as defined in paragraph (c)(1) of this section. Any such firm shall
remain subject to paragraph (a) of this section. DOE shall notify the
firm in writing of the final resolution of the litigation and whether or
not any of its records must be maintained for a further period. DOE
shall notify a firm which must maintain any records for a further period
when such records are no longer needed.
(2)(i) Those firms which as of November 30 1984, have completed
making all restitutionary payments required by an administrative or
judicial order, consent order, or other settlement or order but which
payments are on February 5, 1985, still subject to distribution by DOE.
This requirement is applicable to only those firms listed in appendix B.
Any such firm shall maintain all records for the time period covered by
the administrative or judicial order, consent order, or other settlement
or order requiring the payments, evidencing sales volume data for each
product subject to controls and customers' names and addresses, until
one of the following: June 30, 1985, unless this period is extended on a
firm-by-firm basis; the end of the individual firm's extension; or the
firm is notified in writing that its records are no longer needed.
(ii) Those firms which as of November 30, 1984, are required to make
restitutionary or other payments pursuant to an administrative or
judicial order, consent order, or other settlement or order. Any such
firm shall remain subject to paragraph (a) of this
[[Page 58]]
section until the firm completes all restitutionary payments required by
the administrative or judicial order, consent order, or other settlement
or order. However, after completing all such payments, a firm shall
maintain all records described in paragraph (b)(2)(i) of this section
until one of the following: Six months after the firm completes all such
payments, unless this period is extended on a firm-by-firm basis; the
end of the individual firm's extension; or the firm is notified in
writing that its records are no longer needed.
(3)(i) Those firms with completed audits in which DOE has not yet
made a determination to initiate a formal enforcement action and firms
under audit which do not have outstanding subpoenas. Any such firm shall
maintain all records for the period covered by the audit including all
records necessary to establish historical prices or volumes which serve
as the basis for determining the lawful prices or volumes for any
subsequent regulated transaction which is subject to audit, until one of
the following: June 30, 1985, unless this period is extended on a firm-
by-firm basis; the end of the individual firm's extension; or the firm
is notified in writing by DOE that its records are no longer needed.
However, if a firm in this group shall become a party in litigation, the
firm shall then be subject to the recordkeeping requirements for firms
in litigation set forth in paragraph (b)(1) of this section.
(ii) Those firms under audit which have outstanding subpoenas on
February 5, 1985, or which receive subpoenas at any time thereafter or
which have supplied records for an audit as the result of a subpoena
enforced after November 1, 1983. Any such firm shall remain subject to
paragraph (a) of this section until two years after ERA has notified the
firm in writing that is in full compliance with the subpoena or until
ERA has received from the firm a sworn certification of compliance with
the subpoena as required by 10 CFR 205.8. However, if a firm in this
group shall become a party in litigation, the firm shall then be subject
to the recordkeeping requirements for firms in litigation set forth in
paragraph (b)(1) of this section.
(4) Those firms which are subject to requests for data necessary to
verify that crude oil qualifies as ``newly discovered'' crude oil under
10 CFR 212.79. Any such firm shall maintain the records evidencing such
data until one of the following: June 30, 1985, unless this period is
extended on a firm-by-firm basis; the end of an individual firm's
extension; or the firm is notified in writing by DOE that its records
are no longer needed. However, if a firm in this group shall become a
party in litigation, the firm shall then be subject to the recordkeeping
requirements for firms in litigation set forth in paragraph (b)(1) of
this section.
(5) Those firms whose records are determined by DOE as necessary to
complete the enforcement activity relating to another firm which is also
subject to paragraph (a) of this section unless such firms required to
keep records have received certified notice letters specifically
describing the records determined as necessary. At that time, the
specific notice will control the recordkeeping requirements. These firms
have been identified in appendix A. Any such firm shall maintain these
records until one of the following: June 30, 1985, unless this period is
extended on a firm-by-firm basis; the end of the individual firm's
extension; or the firm is notified in writing by DOE that its records
are no longer needed.
(6) Those firms which participated in the Entitlements program. Any
such firm shall maintain its Entitlements-related records until six
months after the final judicial resolution (including any and all
appeals) of Texaco v. DOE, Nos. 84-391, 84-410, and 84-456 (D. Del.), or
the firm is notified by DOE that its records are no longer needed,
whichever occurs first.
(c) For purposes of this section:
(1) A firm is ``a party in litigation'' if:
(i)(A) The firm has received a Notice of Probable Violation, a
Notice of Probable Disallowance, a Proposed Remedial Order, or a
Proposed Order of Disallowance; or
(B) The firm and DOE are parties in a lawsuit arising under the
Emergency Petroleum Allocation Act of 1973, as amended (15 U.S.C. 751 et
seq.) or 10 CFR parts 205, 210, 211, or 212; and
[[Page 59]]
(ii)(A) There has been no final (that is, non-appealable)
administrative or judicial resolution, or
(B) DOE has not informed the firm in writing that the Department has
completed its review of the matter.
(2) A firm means any association, company, corporation, estate,
individual, joint-venture, partnership, or sole proprietorship, or any
other entity, however organized, including charitable, educational, or
other eleemosynary institutions, and state and local governments. A firm
includes a parent and the consolidated and unconsolidated entities (if
any) which it directly or indirectly controls.
Appendix A to 10 CFR 210.1--Third Party Firms
Name of Firm
A & R, Inc.
A. J. Petroleum
ADA Resources, Inc.
ATC Petroleum
Abbco Petroleum, Inc.
Ada Oil Company
Adams Grocery
Advanced Petroleum Distributing Co.
Agway Inc.
Allegheny Petroleum Corp.
Alliance Oil and Refining Company
Allied Chemical Corp.
Allied Transport
Amerada Hess Corp.
American Natural Crude Oil Assoc.
Amoco Production Company
Amorient Petroleum, Inc.
An-Son Transportation Co.
Anadarko Products Co.
Andrus Energy Corp.
Antler Petroleum
Arco Pipeline Company
Armada Petroleum Corp.
Armour Oil Company
Arnold Brooks Const. Inc.
Ashland Oil
Asiatic Petroleum Co.
Aspen Energy, Inc.
Athens General Hospital
Atlantic Pacific Energy, Inc.
Atlas Processing Company
B & B Trading Company
BLT, Inc.
BPM, Ltd.
Baker Services, Inc.
Basin Inc.
Basin Petroleum, Inc.
Beacon Hill Mobil
Belcher Oil Company
Bighart Pipeline Company
Bigheart Pipeline Corp
Bowdoin Square Exxon
Bowdoin Super Service (Sunoco)
Brio Petroleum, Inc.
Brixon
C.E. Norman
CPI Oil & Refining
CRA-Farmland Industries, Inc.
Calcaseiu Refining, Ltd.
Carbonit Houston, Inc.
Carr Oil Company, Inc.
Castle Coal & Oil Co.
Central Crude Corporation
Century Trading Co.
Charter Crude Oil
Chastain Vineyard
Chevron USA, Inc.
Cibro Petroleum, Inc.
Cirillo Brothers
Cities Service (Citgo) Station
Cities Service Company
Cities Service Midland
City of Athens
Clarke County Board of Education
Claude E. Silvey
Coastal Corporation (The)
Coastal Petroleum and Supply Inc.
Coastal States Trading Company
Commonwealth Oil Refining Co., Inc.
Coral Petroleum Canada, Inc.
Coral Petroleum, Inc.
Corex of Georgia
Cothran Interstate Exxon
Couch's Standard Chevron
Cougar Oil Marketers Inc.
Crude Company (The)
Crystal Energy Corporation
Crystal Refining
D & E Logging
DDC Corporation of America
Darrell Williamson
Davis Ellis
Days Inn of America, Inc.
Delta Petroleum & Energy Corp.
Derby & Company, Inc.
Derby Refining Company
Dewveall Petroleum
Dixie Oil Company
Dixon Oil Co.
Don Hardy
Donald Childs
Dow Chemical Company
Dr. Joe L. Griffeth
Driver Construction Co.
Drummond Brothers, Inc.
Duffie Monroe & Sons Co., Inc.
ECI (A/K/A Energy Cooperative Inc.)
Earnest Dalton
Earth Resources Trading
Eastern Seaboard Petroleum, Inc.
Elmer Hammon
Elvin Knight
Empire Marketing, Inc.
Encorp.
Energy Cooperative, Inc.
Energy Distribution Co.
Englehard Corporation
Englehard Oil Corporation
Entex
Evans Oil Co.
[[Page 60]]
Exxon Company
F & S Trading Company, Inc.
Farmers Union Central Exchange, Inc.
Farmland Industries Inc.
Fasgo, Inc.
Fedco Oil Company
Federal Employees Distributing Co.
Fitzpatrick Spreader
Flutz Oil Company
Flying J. Inc.
Foremost Petroleum
Four Corners Pipe Line
Frank Katz
Frank W. Abrahamsen
Frank's Butane, Inc.
Friendswood Refinery
Frontier Manor Collection
Fuel Oil Supply & Terminaling, Inc.
G. C. Clark Company
GPC Marketing Company
Gary Refining Co.
Geer Tank Trucks, Inc.
Gene Clary
Gene McDonald
General Crude Oil Company
Geodynamics Oil & Gas Inc.
George Kennedy
George Smith Chevron
Gleason Oil Company
Glenn Company
Globe Oil Co.
Godfrey's Standard Service
Good Hope Industries, Inc.
Good Hope Refineries, Inc.
Granite Oil Company
Guam Oil & Refining Co., Inc.
Gulf States Oil & Refining Company
H. D. Adkinson
H. H. Dunson
H.S. & L, Inc.
HNG Oil Company
Harbor Petroleum, Inc.
Harbor Trading
Harmony Grove Mills, Inc.
Harry Rosser
Hast Oil, Inc.
Heet Gas Company
Henry Alva Mercer
Herndon Oil & Gas Company
Horizon Petroleum Company
Houston Oil & Minerals Products Co.
Houston Oil & Refining
Howell Corporation
Hurricane Trading Company, Inc.
Hydrocarbon Trading and Transport Co.
Inco Trading
Independent Refining Corp.
Independent Trading Corporation
Indiana Refining, Inc.
Intercontinental Petroleum Corp.
International Crude Corporation
International Petro
International Petroleum Trading, Inc.
International Processors
Isthmus Trading Corporation
J & M Transport
J. & J.'s Fast Stop
J. A. Rackerby Corporation
J. H. Baccus
J. H. Baccus & Co.
J. J. Williamson
J. M. Petroleum Corporation
JPK Industries
Jack W. Grigsby
Jaguar Petroleum, Inc.
James L. Bush
Jay Petroleum Company
Jay-Ed Petroleum Company
John W. McGowan
Kalama Chemical, Inc.
Kelly Trading Corp.
Kenco Refining
Kerr-McGee Corporation
Koch Fuel
Koch Industries, Inc.
Kocolene Oil
Kocolene Station
L & L Resources, Inc.
L.S. Parker
LaGloria Oil & Gas
LaJet, Inc.
Lamar Refining Co.
Langham Petroleum Corp.
Larry Roberts
Laurel Oil, Inc.
Lee Allen
Lincoln Land Sales Company
Listo Petroleum Inc.
Longview Refining Corp.
Love's Standard
Lucky Stores Inc.
M.L. Morrow
Magna Energy Corporation
Magnolia Oil Company
Mansfield Oil Co.
Mapco Petroleum, Inc.
Mapco, Inc.
Marion Trading Co.
Marlex Oil & Refining, Inc.
Marlin Petroleum, Inc.
Martin Oil Company
Mathew's Grocery
McAuleep Oil Co.
McAuley Oil Company
Meadows Gathering, Inc.
Mellon Energy Products Co.
Merit Petroleum, Inc.
Metro Wash, Inc.
Miller Oil Purchasing Co.
Minor Oil, Inc.
Minro Oil, Inc.
Mitchell Oil Co.
Mitsui & Co. (USA) Inc.
Mobil Bay Refining Company
Montgomery Well Drilling
Mundy Food Market
Munford, Inc.
Mutual Petroleum
NRG Oil Company
National Convenience Stores
National Cooperative Refinery
Nicholson Grocery and Gas
North American Petroleum
Northeast Petroleum Corp.
[[Page 61]]
Northeast Petroleum Corporation
Northgate Auto Center
Northwest Crude, Inc.
Nova Refining Corp.
Occidental Petroleum Corp. (includes Permia)
Ocean Drilling and Exploration Co.
Oil Exchange, Inc.
Oilco
Omega Petroleum Corp.
Otoe Corporation
Oxxo Energy Group, Inc.
P & O Falco, Inc.
P. L. Heatley Co.
PEH, Inc.
PIB, Inc.
PSW Distributors Company
Pacific Refinery, Inc.
Pacific Resources, Inc.
Pan American Products Corp.
Par Brothers Food Store
Pauley Petroleum Inc.
Pennzoil Co.
Permian Corporation (The)
Pescar International Corp.
Pescar International Trading Co.
Petraco (U.S.A.) Inc.
Petrade International
Petrol Products, Inc.
Phillips Petroleum Company
Phoenis Petroleum Co.
Phoenix Petroleum Co.
Pine Mountains
Poole Petroleum
Port Petroleum
Presley Oil Co.
Procoil Inc.
Publiker Industries, Inc.
Pyramid Dist. Co., Inc.
Questor Crude Oil Company
Quitman Refining Co.
R. H. Garrett Paving
Ra-Gan Fuel, Inc.
Reeder Distributing Co.
Reeder Distributors
Reese Exploration Co.
Research Fuels Inc.
Revere Petroleum Co.
Richardson-Ayres, Inc.
Robert Bishop
Robert Patrick
Roberts Grocery
Rock Island Refining Corporation
Rogers Oil Company
Roy Baerne
Russell Oil Company
S. G. Coplen
SECO (Scruggs Energy)
Saber Crude Oil, Inc.
Saber Refining Company
Salem Ventures, Inc.
Samson Resources Company
Santa Fe Energy Products Co.
Saye's Truck Stop
Scandix Oil Limited
Score, Inc.
Scruggs Energy Company
Scurlock Oil Company
Scurry Oil Company
Seamount Petroleum Company
Seaview Petroleum Company
Sector Refining, Inc.
Selfton Miller
Shepherd Trading Corporation
Shulze Processing
Sigmor Corporation
Skelly Oil Company
South Hampton Refining Company
South Texas LP Gas Co.
Southern Crude Oil Resources
Southern Terminal & Transport, Ltd.
Southern Union Company
Southwest Petro. Energy
Southwest Petrochem
Standard Oil Co. (Ohio)
Standard Oil Co. of California
Standard Oil Company (Indiana)
Standard Oil Company (Ohio)
Sterling Energy Company
Steve Childs
Stix Gas Company, Inc.
Sunset Grocery
Sunset Oil & Refining, Inc.
Swanee Petroleum Company
T & P Enterprises
T. B. Eley
T. E. Jawell
Tauber Oil Company
Tenneco, Inc.
Tesoro Crude Oil Company
Texana Oil & Gas Corp.
Texas American Petrochemicals (TAP)
Texas City Refining
Texas Eastern Transmission Corp.
Texas Energy Reserve Corporation
Texas Pacific Oil Company
Thomas Cockvell
Thomas Petroleum Products, Inc.
Thorton Oil Company
Thyssen Incorporated
Tiger Petroleum Company
Time Oil Co.
Tipperary Refining Company
Tom Banks
Tom Smith
Tomlinson Petroleum, Inc.
Tosco Corporation
Total Petroleum, Inc.
Trans-Texas Petroleum Corp.
Transco Trading Company
Turboil Oil and Refining
Two Rivers Oil & Gas Co., Inc.
U-Fill 'er Up
USA Gas, Inc.
Uni Oil Company
Union Oil of California
Doram Energy
United Petroleum Marketing
United Refining Company
United Refining, Inc.
Universal Rundle
Val-Cap, Inc.
Vedetta Oil Trading, Inc.
Vedette Oil Trading, Inc.
[[Page 62]]
Vickers Energy Corp.
W. C. Colquitt
W. T. Strickland
W. W. Blanton
W.A. Nunnally, Jr., Construction Co.
W.D. Porterfiled
Wellven, Inc.
West Texas Marketing Corp.
Western Crude Oil, Inc.
Western Fuels, Inc.
Wight Nurseries of Oglethorpe Co.
William Seabolt
Wilson's Used Tractors
Windsor Gas Corp.
Wyoming Refining
Appendix B to 10 CFR 210.1--Firms With Completed Payments Subject to
Distribution
The following firms have completed making restitutionary payments to
DOE but their payments are still subject to distribution by DOE. Each
such firm must maintain relevant records until June 30, 1985, unless
this period is extended on a firm-by-firm basis. Relevant records are
all records of the firm, including any affiliates, subsidiaries or
predecessors in interest, for the time period covered by the judicial or
administrative order, consent order, or other settlement or order
requiring the payments, evidencing sales volume data for each product
subject to controls and customers' names and addresses.
------------------------------------------------------------------------
Name of firm Location
------------------------------------------------------------------------
A. Tarricone Inc...................... Yonkers, NY.
Adolph Coors Company.................. Golden, CO.
Allied Materials Corp & Excel......... Oklahoma City, OK.
Aminoil USA, Inc...................... Houston, TX.
Amtel, Inc............................ Providence, RI.
Apache Corporation.................... Minneapolis, MN.
APCO Oil Corporation.................. Oklahoma City, OK.
Arapaho Petroleum, Inc................ Breckenridge, TX.
Arkansas Louisiana Gas Company........ Shreveport, LA.
Arkla Chemical Corporation............ Shreveport, LA.
Armour Oil Company.................... San Diego, CA.
Associated Programs Inc............... Boca Raton, FL.
Atlanta Petroleum Production.......... Fort Worth, TX.
Automatic Heat, Inc...................
Ayers Oil Company..................... Canton, MD.
Aztex Energy Corporation.............. Knoxville, TN.
Bak Ltd............................... Narbeth, PA.
Bayou State Oil/IDA Gasoline.......... Shreveport, LA.
Bayside Fuel Oil Depot Corp........... Brooklyn, NY.
Belridge Oil Company.................. Los Angeles, CA.
Blaylock Oil Co., Inc................. Homestead, FL.
Blex Oil Company...................... Minneapolis, MN.
Boswell Oil Company................... Cincinnati, OH.
Box, Cloyce K......................... Dallas, TX.
Breckenridge Gasoline Company......... Kansas City, KS.
Brownlie, Wallace, Armstrong.......... Denver, CO.
Bucks Butane & Propane Service........ San Jose, CA.
Budget Airport Associates............. Los Angeles, CA.
Busler Enterprises Inc................ Evansville, IN.
Butler Petroleum Corp................. Butler, PA.
C.K. Smith & Company, Inc............. Worcester, MA.
Cap Oil Company....................... Tulsa, OK.
Champlain Oil Co., Inc................ South Burlington, VT.
Chapman, H.A.......................... Tulsa, OK.
Cibro Gasoline Corporation............ Bronx, NY.
City Service Inc...................... Kalispell, MT.
Coastal Corporation................... Houston, TX.
Coline Gasoline Corporation........... Santa Fe Springs, CA.
Collins Oil Co........................ Aurora, IL.
Columbia Oil Co....................... Hamilton, OH.
Conlo Service Inc..................... East Farmingdale, NY.
Conoco, Inc........................... Houston, TX.
Consolidated Gas Supply Corp.......... Hastings, WV.
Consolidated Leasing Corp............. Los Angeles, CA.
Consumers Oil Co...................... Rosemead, CA.
Continental Resources Company......... Winter Park, FL.
Cordele Operating Co.................. Corsicana, TX.
Cosby Oil Co., Inc.................... Whittier, CA.
Cougar Oil Co......................... Selma, AL.
Cross Oil Co., Inc.................... Wellstone, MO.
Crystal Oil Company (formerly Vallery Shreveport, LA.
Corp.).
Crystal Petroleum Co.................. Corpus Christi, TX.
Devon Corporation..................... Oklahoma City, OK.
Dorchester Gas Corp................... Dallas, TX.
E.B. Lynn Oil Company................. Allentown, PA.
E.M. Bailey Distributing Co........... Paducah, KY.
Eagle Petroleum Co.................... Wichita Falls, TX.
Earls Broadmoor....................... Houma, LA.
Earth Resources Co.................... Dallas, TX.
Eastern Petroleum Corp................ Annapolis, MD.
Edington Oil Co....................... Los Angeles, CA.
Elias Oil Company..................... West Palm Beach, FL.
Elm City Filling Stations, Inc........ New Haven, CT.
Empire Oil Co......................... Bloomington, CA.
Endicott, Eugene...................... Redmond, OR.
Enserch Corp.......................... Dallas, TX.
Enterprise Oil & Gas Company.......... Detroit, MI.
F.O. Fletcher, Inc.................... Tacoma, WA.
Fagadau Energy Corporation............ Dallas, TX.
Farstad Oil Company................... Minot, ND.
Field Oil Co., Inc.................... Ogden, UT.
Fine Petroleum Co., Inc............... Norfolk, VA.
Foster Oil Co......................... Richmond, MI.
Franks Petroleum Inc.................. Shreveport, LA.
Froesel Oil Co........................
Gas Systems Inc....................... Ft. Worth, TX.
Gate Petroleum Co., Inc............... Jacksonville, FL.
GCO Minerals Company.................. Houston, TX.
Getty Oil Company..................... Los Angeles, CA.
Gibbs Industries, Inc................. Revere, MA.
Glaser Gas Inc........................ Calhoun, CO.
Glover, Lawrence H.................... Patchogue, NY.
Goodman Oil Company................... Boise, ID.
Grant Rent a Car Corporation.......... Los Angeles, CA.
Grimes Gasoline Co.................... Tulsa, OK.
Gulf Energy & Development Corp. (also San Antonio, TX.
known as Gulf Energy Development
Corp.).
Gulf Oil Corp......................... Houston, TX.
Gull Industries, Inc.................. Seattle, WA.
H.C. Lewis Oil Co..................... Welch, WV.
Hamilton Brothers Petroleum Co........ Denver, CO.
Harris Enterprise Inc................. Portland, OR.
Heller, Glenn Martin.................. Boston, MA.
Hendel's Inc.......................... Waterford, CT.
Henry H. Gungoll Associates........... Enid, OK.
Hertz Corporation, The................ New York, NY.
Hines Oil Co.......................... Murphysboro, IL.
Horner & Smith, A Partnership......... Houston, TX.
Houston Natural Gas Corp.............. Houston, TX.
Howell Corporation/Quintana Refinery Houston, TX.
Co.
Hunt Industries....................... Dallas, TX.
Hunt Petroleum Corp................... Dallas, TX.
Husky Oil Company of Delaware......... Cody, WY.
Ideal Gas Co., Inc.................... Nyassa, OR.
[[Page 63]]
Independent Oil & Tire Company........ Elyria, OH.
Inland USA, Inc....................... St. Louis, MO.
Inman Oil Co.......................... Salem, MO.
Internorth, Inc....................... Omaha, NE.
J.E. DeWitt, Inc...................... South El Monte, CA.
J.M. Huber Corp....................... Houston, TX.
James Petroleum Corp.................. Bakersfield, CA.
Jay Oil Company....................... Fort Smith, AR.
Jimmys Gas Stations Inc............... Auburn, ME.
Jones Drilling Corporation............ Duncan, OK.
Juniper Petroleum Corporation......... Denver, CO.
Kansas-Nebraska Natural Gas Co........ Hastings, NE.
Keller Oil Company, Inc............... Effingham, IL.
Kenny Larson Oil Co., Inc.............
Kent Oil & Trading Company............ Houston, TX.
Key Oil Co., Inc...................... Tuscaloosa, AL.
Key Oil Company....................... Bowling Green, KY.
Kiesel Co............................. St. Louis, MO.
King & King Enterprise................ Kansas City, MO.
Kingston Oil Supply Corp.............. Port Ewen, NY.
Kirby Oil Company.....................
L & L Oil Co., Inc.................... Belle Chasse, LA.
L.P. Rech Distributing Co............. Roundup, MT.
La Gloria Oil and Gas Co.............. Houston, TX.
Lakes Gas Co., Inc.................... Forest Lake, MN.
Lakeside Refining Co./Crystal......... Southfield, MI.
Landsea Oil Company................... Irvine, CA.
Leathers Oil Co., Inc................. Portland, OR.
Leese Oil Company..................... Pocatello, ID.
Leonard E. Belcher, Inc............... Springfield, MA.
Lincoln Land Oil Co................... Springfield, IL.
Liquid Products Recovery.............. Houston, TX.
Little America Refining Co............ Salt Lake City, UT.
Lockheed Air Terminal Inc............. Burbank, CA.
Lowe Oil Company...................... Clinton, MO.
Lucia Lodge Arco...................... Big Sur, CA.
Luke Brothers Inc..................... Calera, OK.
Lunday Thargard Oil................... South Gate, CA.
Malco Industries Inc.................. Cleveland, OH.
Mapco, Inc............................ Tulsa, OK.
Marine Petroleum Co................... St. Louis, MO.
Marlen L. Knutson Dist. Inc........... Stanwood, WA.
Martin Oil Service, Inc............... Blue Island, IL.
Martinoil Company..................... Fresno, CA.
Marvel Fuel Oil and Gas Co............
McCarty Oil Co........................ Wapakoneta, OH.
McCleary Oil Co., Inc................. Chambersburg, OH.
McClure's Service Station............. Salisbury, PA.
McTan Corporation..................... Abilene, TX.
Mesa Petroleum Company................ Amarillo, TX.
Midway Oil Co......................... Rock Island, IL.
Midwest Industrial Fuels, Inc......... La Crosse, WI.
Mississippi River Transmission........ St. Louis, MO.
Mitchell Energy Corp.................. Woodlands, TX.
Montana Power Co...................... Butte, MT.
Moore Terminal and Barge Co........... Monroe, LA.
Mountain Fuel Supply Company.......... Salt Lake City, UT.
Moyle Petroleum Co.................... Rapid City, SD.
Mustang Fuel Corporation.............. Oklahoma City, OK.
Naphsol Refining Company.............. Muskegon, MI.
National Helium Corporation........... Liberal, KS.
National Propane Corp................. Wyandanch, NY.
Navajo Refining Company............... Dallas, TX.
Nielson Oil & Propane, Inc............ West Point, NE.
Northeast Petroleum Industries........ Chelsea, MA.
Northeastern Oil Co., Inc............. Gillette, WY.
Northwest Pipeline Corp............... Salt Lake City, UT.
O'Connell Oil Co...................... Pittsfield, MA.
Oceana Terminal Corp. et al........... Bronx, NY.
OKC Corporation....................... Dallas, TX.
Olin Corporation...................... Stamford, CT.
Oneok Incorporation................... Tulsa, OK.
Ozona Gas Processing Plant............ Tyler, TX.
Pacer Oil Co. of Florida, Inc......... Ormond Beach, FL.
Pacific Northern Oil.................. Seattle, WA.
Panhandle Eastern (Century)........... Houston, TX.
Parade Company........................ Shreveport, LA.
Parham Oil Corporation................ Nashville, TN.
Pasco Petroleum Co., Inc.............. Phoenix, AZ.
Pedersen Oil, Inc..................... Silverdale, WA.
Pennzoil Company...................... Houston, TX.
Perry Gas Processors, Inc............. Odessa, TX.
Peoples Energy Corp................... Chicago, IL.
Perta Oil Marketing Corp.............. Beverly Hills, CA.
Peterson Petroleum Inc................ Hudson, NY.
Petro-Lewis Corp...................... Denver, CO.
Petrolane-Lomita Gasoline Co.......... Long Beach, CA.
Petroleum Heat & Power Co. Inc........ Stamford, CT.
Petroleum Sales/Services Inc.......... Buffalo, NY.
Pioneer Corp.......................... Amarillo, TX.
Planet Engineers Inc.................. Denver, CO.
Plateau, Inc.......................... Albuquerque, NM.
Plaquemines Oil Sales................. Belle Chasse, LA.
Point Landing Inc..................... Hanrahan, LA.
Port Oil Company, Inc................. Mobile, AL.
Post Petroleum Co..................... West Sacramento, CA.
Power Pak Co., Inc.................... Houston, TX.
Pride Refining, Inc................... Abilene, TX.
Pronto Gas Co......................... Abilene, TX.
Propane Gas & Appliance Co............ New Brockton, AL.
Prosper Energy Corporation............ Dallas, TX.
Pyro Energy Corporation............... Evansville, IN.
Pyrofax Gas Corporation............... Houston, TX.
Quaker State Oil...................... Oil City, PA.
Quarles Petroleum, Inc................ Fredericksburg, VA.
Resources Extraction Process.......... Houston, TX.
Reynolds Oil Co....................... Kremling, CO.
Richardson Ayers Jobbers, Inc......... Alexandria, LA.
Riverside Oil, Inc.................... Evansville, IN.
Roberts Oil Co. Inc................... Albuquerque, NM.
Rookwood Oil Terminals Inc............ Cincinnati, OH.
Saber Energy, Inc..................... Houston, TX.
Sanesco Oil Co........................ Escondido, CA.
Schroeder Oil Company................. Carroll, IA.
Seminole Refining Inc................. St. Marks, FL.
Sid Richardson Carbon & Gas........... Ft. Worth, TX.
Sigmore Corporation................... San Antonio, TX.
Southwestern Refining Co., Inc........ Salt Lake City, UT.
Speedway Petroleum Co., Inc........... Fitchburg, MA.
St. James Resources Corp.............. Boston, MA.
Standard Oil Co. (Indiana)............ Chicago, IL.
Stinnes Inter Oil Inc................. New York, NY.
Tenneco Oil Company................... Houston, TX.
Texas/Arkansas/Colorado/Oklahoma/Oil Dallas, TX.
Purchasing.
Texas Gas & Exploration............... Dallas, TX.
Texas Oil & Gas Corporation........... Dallas, TX.
Texas Pacific Oil Company, Inc........ Dallas, TX.
The True Companies.................... Casper, WY.
Thompson Oil Inc...................... Purcellville, VA.
Tiger Oil Co.......................... Yakima, WA.
Time Oil Company...................... Seattle, WA.
Tipperary Corp........................ Midland, TX.
Tippins Oil & Gas Co.................. Richmond, MO.
Triton Oil & Gas Corp................. Dallas, TX.
U.S. Compressed Gas Company........... King of Prussia, PA.
U.S. Oil Company...................... Combined Locks, WI.
U.S.A. Petroleum, Inc................. Santa Monica, CA.
Union Texas Petroleum Corp............ Houston, TX.
United Oil Company.................... Hillside, NJ.
Upham Oil & Gas Co.................... Mineral Wells, TX.
Vangas Inc............................ Fresno, CA.
VGS Corporation....................... Jackson, MS.
Waller Petroleum Company, Inc......... Towson, MD.
Warren Holding Company................ Providence, RI.
Warrior Asphalt Co. of Alabama........ Tuscaloosa, AL.
Webco Southern Oil Inc................ Smyrna, CA.
Wellen Oil Co......................... Jersey City, NJ
[[Page 64]]
Wiesehan Oil Co.......................
Willis Distributing Company........... Erie, PA.
Winston Refining Company.............. Fort Worth, TX.
Witco Chemical Corporation............ New York, NY.
World Oil Company..................... Los Angeles, CA.
Worldwide Energy Corp................. Denver, CO.
Young Refining Corporation............ Douglasville, GA.
Zia Fuels (G.G.C. Corp.).............. Hobbs, NM.
------------------------------------------------------------------------
(Approved by the Office of Management and Budget under control number
1903-0073)
[50 FR 4962, Feb. 5, 1985]
Subparts B-D [Reserved]
PART 212_MANDATORY PETROLEUM PRICE REGULATIONS--Table of Contents
Subparts A-C [Reserved]
Subpart D_Producers of Crude Oil
Sec.
212.78 Tertiary incentive crude oil.
Subparts E-I [Reserved]
Authority: Emergency Petroleum Allocation Act of 1973, Pub. L. 93-
159, E.O. 11748, 38 FR 33577; Economic Stabilization Act of 1970, as
amended, Pub. L. 92-210, 85 Stat. 743; Pub. L. 93-28, 87 Stat. 27; E.O.
11748, 38 FR 33575; Cost of Living Council Order Number 47, FR 24.
Subparts A-C [Reserved]
Subpart D_Producers of Crude Oil
Sec. 212.78 Tertiary incentive crude oil.
Annual prepaid expenses report. By January 31 of each year after
1980, the project operator with respect to any enhanced oil recovery
project for which a report had been filed previously with DOE pursuant
to paragraph (h)(2)(i) of this section as that paragraph was in effect
on January 27, 1981, shall file with DOE a report in which the operator
shall certify to DOE (a) which of the expenses that had been reported
previously to DOE pursuant to paragraph (h)(2)(i) of this section as
that paragraph was in effect on January 27, 1981, were prepaid expenses;
(b) the goods or services for which such expenses had been incurred and
paid; (c) the dates on which such goods or services are intended to be
used; (d) the dates on which such goods or services actually are used;
(e) the identity of each qualified producer to which such prepaid
expenses had been attributed; and (f) the percentage of such prepaid
expenses attributed to each such qualified producer. An operator shall
file an annual prepaid expenses report each year until it has reported
the actual use of all the goods and services for which a prepaid expense
had been incurred and paid. For purposes of this paragraph, a prepaid
expense is an expense for any injectant or fuel used after September 30,
1981, or an expense for any other item to the extent that IRS would
allocate the deductions (including depreciation) for that item to the
period after September 30, 1981.
(Approved by the Office of Management and Budget under OMB Control No.:
1903-0069)
[46 FR 43654, Aug. 31, 1981, as amended at 46 FR 63209, Dec. 31, 1981]
Subparts E-I [Reserved]
PART 215_COLLECTION OF FOREIGN OIL SUPPLY AGREEMENT INFORMATION--Table of
Contents
Sec.
215.1 Purpose.
215.2 Definitions.
215.3 Supply reports.
215.4 Production of contracts and documents.
215.5 Pricing and volume reports.
215.6 Notice of negotiations.
Authority: Emergency Petroleum Allocation Act of 1973, Pub. L. 93-
519, as amended, Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133 and 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.
Source: 42 FR 48330, Sept. 23, 1977, unless otherwise noted.
Sec. 215.1 Purpose.
The purpose of this part is to set forth certain requirements
pursuant to section 13 of the Federal Energy Administration Act to
furnish information concerning foreign crude oil supply arrangements.
The authority set out in this section is not exclusive.
[[Page 65]]
Sec. 215.2 Definitions.
As used in this subpart:
Administrator means the Federal Energy Administrator or his
delegate.
DOE means the Department of Energy.
Host government means the government of the country in which crude
oil is produced and includes any entity which it controls, directly or
indirectly.
Person means any natural person, corporation, partnership,
association, consortium, or any other entity doing business or domiciled
in the U.S. and includes (a) any entity controlled directly or
indirectly by such a person and (b) the interest of such a person in any
joint venture, consortium or other entity to the extent of entitlement
to crude oil by reason of such interest.
Sec. 215.3 Supply reports.
(a) Any person having the right to lift for export by virtue of any
equity interest, reimbursement for services, exchange or purchase, from
any country, from fields actually in production, (1) an average of
150,000 barrels per day or more of crude oil for a period of at least
one year, or (2) a total of 55,000,000 barrels of crude oil for a period
of less than one year, or (3) a total of 150,000,000 barrels of crude
oil for the period specified in the agreement, pursuant to supply
arrangements with the host government, shall report the following
information.
(1) Parties (including partners and percentage interest, where
applicable).
(2) Grade or grades available; loading terminal or terminals.
(3) Government imposed production limits, if any.
(4) Minimum lifting obligation and maximum lifting rights.
(5) Details of lifting options within the above limits.
(6) Expiration and renegotiation dates.
(7) Price terms including terms of rebates, discounts, and number of
days of credit calculated from the date of loading.
(8) Other payments to or interests retained by the host government
(i.e. taxes, royalties, and any other payment to the host government)
expressed in terms of the applicable rates or payment or preemption
terms, or the base to which those rates or terms are applied.
(9) Related service or other fees and cost of providing services.
(10) Restrictions on shipping or disposition.
(11) Other material contract terms.
(b) Reports under this section shall be made no later than (1) 60
days after final issuance of reporting forms implementing this
regulation, as announced in the Federal Register, (2) fourteen days
after the date when supply arrangements are entered into, or (3)
fourteen days after the initial lifting under an agreement in which the
parties have tentatively concurred but not signed, whichever occurs
first. Reporting shall be based on actual practice between the parties.
Material changes in any item which must be reported pursuant to this
section shall be reported no later than 30 days after a person receives
actual notice of such changes.
(c) Where reports under this section by each participant in a joint
operation would be impracticable, or would result in the submission of
inaccurate or misleading information, the participants acting together
may designate a single participant to report on any of the rights,
obligations, or limitations affecting the operation as a whole. Any such
designation shall be signed by a duly authorized representative of each
participant, and shall specify:
(1) The precise rights, obligations, or limitations to be covered by
the designation; and
(2) The reasons for the designation. Such designations shall be
submitted to the Assistant Administrator for International Energy
Affairs, and shall take effect only upon his written approval, which may
at any time be revoked.
Sec. 215.4 Production of contracts and documents.
Whenever the Administrator determines that certain foreign crude oil
supply information is necessary to assist in the formulation of energy
policy or to carry out any other function of the Administrator, he may
require the production by any person of any agreement or document
relating to foreign
[[Page 66]]
oil supply arrangements or reports related thereto. Such material shall
be provided pursuant to the conditions prescribed by the Administrator
at the time of such order or subsequently. As used in this section, the
term ``agreement'' includes proposed or draft agreements, and agreements
in which the parties have tentatively concurred but have not yet signed,
between or among persons and a host country.
Sec. 215.5 Pricing and volume reports.
To the extent not reported pursuant to Sec. 215.3, any person
lifting for export crude oil from a country shall report to the DOE
within 30 days of the date on which he receives actual notice:
(a) Any change (including changes in the timing of collection) by
the host government in official selling prices, royalties, host
government taxes, service fees, quality or port differentials, or any
other payments made directly or indirectly for crude oil; changes in
participation ratios; changes in concessionary arrangements; and
(b) Any changes in restrictions on lifting, production, or
disposition.
Sec. 215.6 Notice of negotiations.
Any person conducting negotiations with a host government which may
reasonably lead to the establishment of any supply arrangement subject
to reporting pursuant to Sec. 215.3(a), or may reasonably have a
significant effect on the terms and conditions of an arrangement subject
to Sec. 215.3(a), shall notify DOE of such negotiations. Such notice
shall be made no later than the later of 30 days after the effective
date of this regulation or within 14 days after such negotiations meet
the conditions of this section, and shall specify all persons involved
and the host government affected. Notice must be in writing to the
Assistant Administrator for International Energy Affairs. Where this
notice pertains to negotiations to modify a supply agreement previously
reported to the Department of Energy under this part, such notice shall
include the agreement serial number assigned to the basic agreement.
PART 216_MATERIALS ALLOCATION AND PRIORITY PERFORMANCE UNDER CONTRACTS OR
ORDERS TO MAXIMIZE DOMESTIC ENERGY SUPPLIES--Table of Contents
Sec.
216.1 Introduction.
216.2 Definitions.
216.3 Requests for assistance.
216.4 Evaluation by DOE of applications.
216.5 Notification of findings.
216.6 Petition for reconsideration.
216.7 Conflict in priority orders.
216.8 Communications.
216.9 Violations.
Authority: Sec. 104 of the Energy Policy and Conservation Act (EPCA)
Pub. L. 94-163, 89 Stat. 871; section 101(c) of the Defense Production
Act of 1950 (DPA), 50 U.S.C. App. 2071(c); E.O. 12919, 59 FR 29525 (June
7, 1994); E.O. 13286, 68 FR 10619 (March 5, 2003); 15 CFR part 700;
Defense Priorities and Allocations System Delegation No. 2 (August 6,
2002), as amended at 15 CFR part 700.
Source: 43 FR 6212, Feb. 14, 1978, unless otherwise noted.
Sec. 216.1 Introduction.
(a) This part describes and establishes the procedures to be used by
the Department of Energy (DOE) in considering and making certain
findings required by section 101(c)(2)(A) of the Defense Production Act
of 1950, as amended, 50 U.S.C. app. 2071(c)(2)(A) (DPA). Section 101(c)
authorizes the allocation of, or priority performance under contracts or
orders (other than contracts of employment) relating to, materials and
equipment, services, or facilities in order to maximize domestic energy
supplies if the findings described in section 101(c)(2) are made. Among
these findings are that such supplies of materials and equipment,
services, or facilities are critical and essential to maintain or
further exploration, production, refining, transportation or the
conservation of energy supplies or for the construction or maintenance
of energy facilities. The function of finding that supplies are critical
and essential was delegated to the Secretary of Energy pursuant to E.O.
12919 (59 FR 29525, June 7, 1994) and Department of Commerce Defense
Priorities and Allocations System Delegation No. 2, 15 CFR part 700.
[[Page 67]]
(b) The purpose of these regulations is to establish the procedures
and criteria to be used by DOE in determining whether programs or
projects maximize domestic energy supplies and whether or not supplies
of materials and equipment, services, or facilities are critical and
essential, as required by DPA section 101(c)(2)(A). The critical and
essential finding will be made only for supplies of materials and
equipment, services, or facilities related to those programs or projects
determined by DOE to maximize domestic energy supplies. These
regulations do not require or imply that the findings, on which the
exercise of such authority is conditioned, will be made in any
particular case.
(c) If DOE determines that a program or project maximizes domestic
energy supplies and finds that supplies of materials and equipment,
services, or facilities are critical and essential to maintain or
further the exploration, production, refining, transportation or
conservation of energy supplies or for the construction or maintenance
of energy facilities, such determination and finding will be
communicated to the Department of Commerce (DOC). If not, the applicant
will be so informed. If the determination and finding described in this
paragraph are made, DOC, pursuant to DPA section 101(c) and section 203
of E.O. 12919, will find whether or not: The supplies of materials and
equipment, services, or facilities in question are scarce; and
maintenance or furtherance of exploration, production, refining,
transportation, or conservation of energy supplies or the construction
or maintenance of energy facilities cannot be reasonably accomplished
without exercising the authority specified in DPA section 101(c). If
these additional two findings are made, DOC will notify DOE, and DOE
will inform the applicant that it has been granted the right to use
priority ratings under the Defense Priorities and Allocations System
(DPAS) regulation established by the DOC, 15 CFR part 700.
[73 FR 10983, Feb. 29, 2008]
Sec. 216.2 Definitions.
As used in these regulations:
(a) Secretary means the Secretary of the Department of Energy.
(b) Applicant means a person requesting priorities or allocation
assistance in connection with an energy program or project.
(c) Application means the written request of an applicant for
assistance.
(d) Assistance means use of the authority vested in the President by
DPA section 101(c) to implement priorities and allocation support.
(e) DHS means the Department of Homeland Security.
(f) DOC means the Department of Commerce.
(g) DOE means the Department of Energy.
(h) Defense Priorities and Allocations System Coordination Office
means the Department of Energy, Office of Electricity and Energy
Assurance, OE-30.
(i) Eligible energy program or project means a designated activity
which maximizes domestic energy supplies by furthering the exploration,
production, refining, transportation or conservation of energy supplies
or construction or maintenance of energy facilities within the meaning
of DPA section 101(c), as determined by DOE.
(j) Facilities means all types of buildings, structures, or other
improvements to real property (but excluding farms, churches or other
places of worship, and private dwelling houses), and services relating
to the use of any such building, structure, or other improvement.
(k) Materials and equipment means: (1) Any raw materials (including
minerals, metals, and advanced processed materials), commodities,
articles, components (including critical components), products, and
items of supply; and
(2) Any technical information or services ancillary to the use of
such raw materials, commodities, articles, components, products, or
items.
(l) National Defense means programs for military and energy
production or construction, military assistance to any foreign nation,
stockpiling, space, and any directly related activity. Such term also
includes emergency preparedness activities conducted pursuant to title
VI of the Robert T. Stafford Disaster Relief and Emergency Assistance
Act (42 U.S.C. 5195, et seq.) and
[[Page 68]]
critical infrastructure protection and restoration.
(m) Person means an individual, corporation, partnership,
association, or any other organized group of persons, or legal successor
or representative thereof, or any state or local government or agency
thereof.
(n) Services include any effort that is needed for or incidental to:
(1) The development, production, processing, distribution, delivery,
or use of an industrial resource, or critical technology item; or
(2) The construction of facilities.
[43 FR 6212, Feb. 14, 1978, as amended at 51 FR 8311, Mar. 11, 1986; 73
FR 10983, Feb. 29, 2008]
Sec. 216.3 Requests for assistance.
(a) Persons who believe that they perform work associated with a
program or project which may qualify as an eligible energy program or
project and wishing to receive assistance as authorized by DPA section
101(c)(1) may submit an application to DOE requesting DOE to determine
whether a program or project maximizes domestic energy supplies and to
find whether or not specific supplies of materials and equipment,
services, or facilities identified in the application are critical and
essential for a purpose identified in section 101(c). The application
shall be sent to: U.S. Department of Energy, Attn: Office of Electricity
and Energy Assurance, OE-30, Forrestal Building, 1000 Independence
Avenue, SW., Washington, DC 20585. The application shall contain the
following information:
(1) The name and address of the applicant and of its duly authorized
representative.
(2) A description of the energy program or project for which
assistance is requested and an assessment of its impact on the
maximization of domestic energy supplies.
(3) The amount of energy to be produced by the program or project
which is directly affected by the supplies of the materials and
equipment, services, or facilities in question.
(4) A statement explaining why the materials and equipment,
services, or facilities for which assistance is requested are critical
and essential to the construction or operation of the energy project or
program.
(5) A detailed description of the specific supplies of materials and
equipment, services, or facilities in connection with which assistance
is requested, including: Components, performance data (capacity, life
duration, etc.), standards, acceptable tolerances in dimensions and
specifications, current inventory, present and expected rates of use,
anticipated deliveries and substitution possibilities (feasibility of
using other materials and equipment, services, or facilities).
(6) A detailed description of the sources of supply, including: The
name of the regular supplying company or companies, other companies
capable of supplying the materials and equipment, services, or
facilities; location of supplying plants or plants capable of supplying
the needed materials and equipment, services, or facilities; possible
suppliers for identical or substitutable materials and equipment,
services, or facilities and possible foreign sources of supply.
(7) A detailed description of the delivery situation, including:
Normal delivery times, promised delivery time without priorities
assistance, and delivery time required for expeditious fulfillment or
completion of the program or project.
(8) Evidence of the applicant's unsuccessful efforts to obtain on a
timely basis the materials and equipment, services, or facilities in
question through normal business channels from current or other known
suppliers.
(9) A detailed estimate of the delay in fulfilling or completing the
energy program or project which will be caused by inability to obtain
the specified materials and equipment, services, or facilities in the
usual course of business.
(10) Any known conflicts with rated orders already issued pursuant
to the DPA for supplies of the described materials and equipment,
services, or facilities.
(b) DOE, on consultation with the DOC, may prescribe standard forms
of application or letters of instruction for use by all persons seeking
assistance.
(c) In addition to the information described above, DOE may from
time to
[[Page 69]]
time request whatever additional information it reasonably believes is
relevant to the discharge of its functions pursuant to DPA section
101(c).
[43 FR 6212, Feb. 14, 1978, as amended at 51 FR 8311, Mar. 11, 1986; 73
FR 10983, Feb. 29, 2008]
Sec. 216.4 Evaluation by DOE of applications.
(a) Based on the information provided by the applicant and other
available information, DOE will:
(1) Determine whether or not the energy program or project in
connection with which the application is made maximizes domestic energy
supplies and should be designated an eligible energy program or project;
and
(2) Find whether the described supplies of materials and equipment,
services, or facilities are critical and essential to the eligible
energy program or project.
(b) In determining whether the program or project referred to in the
application should be designated an eligible energy program or project,
DOE will consider all factors which it considers relevant including, but
not limited to, the following:
(1) Quantity of energy involved;
(2) Benefits of timely energy program furtherance or project
completion;
(3) Socioeconomic impact;
(4) The need for the end product for which the materials and
equipment, services, or facilities are allegedly required; and
(5) Established national energy policies.
(c) In finding whether the supplies of materials and equipment,
services, or facilities described in the application are critical and
essential to an eligible energy program or project, DOE will consider
all factors which it considers relevant including, but not limited to,
the following:
(1) Availability and utility of substitute materials and equipment,
services, or facilities; and
(2) Impact of the nonavailability of the specific supplies of
materials and equipment, services, or facilities on the furtherance or
timely completion of the approved energy program or project.
(d) Increased costs which may be associated with obtaining materials
and equipment, services, or facilities without assistance shall not be
considered a valid reason for finding the materials and equipment,
services, or facilities to be critical and essential.
(e) After DOE has determined a program or project to be an eligible
energy program or project, this determination shall be deemed made with
regard to subsequent applications involving the same program or project
unless and until DOE announces otherwise.
[43 FR 6212, Feb. 14, 1978, as amended at 73 FR 10984, Feb. 29, 2008]
Sec. 216.5 Notification of findings.
(a) DOE will notify DOC if it finds that supplies of materials and
equipment, services, or facilities for which an applicant requested
assistance are critical and essential to an eligible energy program or
project, and in such cases will forward to DOC the application and
whatever information or comments DOE believes appropriate. If DOE
believes at any time that findings previously made may no longer be
valid, it will immediately notify the DOC and the affected applicant(s)
and afford such applicant(s) an opportunity to show cause why such
findings should not be withdrawn.
(b) If DOC notifies DOE that DOC has found that supplies of
materials and equipment, services, or facilities for which the applicant
requested assistance are scarce and that the related eligible energy
program or project cannot reasonably be accomplished without exercising
the authority specified in DPA section 101(c)(1), DOE will notify the
applicant that the applicant is authorized to place rated orders for
specific materials and equipment, services, or facilities pursuant to
the provisions of the DOC's DPAS regulation.
[73 FR 10984, Feb. 29, 2008]
Sec. 216.6 Petition for reconsideration.
If DOE, after evaluating an application in accordance with Sec.
216.4, does not determine that the energy program or project maximizes
domestic energy
[[Page 70]]
supplies or does not find that the supplies of materials and equipment,
services, or facilities described in the application are critical and
essential to an eligible energy program or project, it will so notify
the applicant and the applicant may petition DOE for reconsideration. If
DOE concludes at any time that findings previously made are no longer
valid and should be withdrawn, DOE will so notify the affected
applicant(s), and such applicant(s) may petition DOE for reconsideration
of the withdrawal decision. A petition is deemed accepted when received
by DOE at the address stated in Sec. 216.8. DOE will consider the
petition for reconsideration and either grant or deny the relief
requested. Written notice of the decision and of the reasons for the
decision will be provided to the applicant. There has not been an
exhaustion of administrative remedies until a petition for
reconsideration has been submitted and the review procedure completed by
grant or denial of the relief requested. The denial of relief requested
in a petition for reconsideration is a final administrative decision.
[43 FR 6212, Feb. 14, 1978, as amended at 51 FR 8312, Mar. 11, 1986; 73
FR 10984, Feb. 29, 2008]
Sec. 216.7 Conflict in priority orders.
If it appears that the use of assistance pursuant to DPA section
101(c) creates or threatens to create a conflict with priorities and
allocation support provided in connection with the national defense
pursuant to DPA section 101(a), DOE will work with the DOC and other
claimant agencies affected by the conflict to reschedule deliveries or
otherwise accommodate the competing demands. If acceptable solutions
cannot be agreed upon by the claimant agencies DHS will attempt to
resolve theconflicts.
[43 FR 6212, Feb. 14, 1978, as amended at 51 FR 8312, Mar. 11, 1986; 73
FR 10984, Feb. 29, 2008]
Sec. 216.8 Communications.
All written communications concerning these regulations shall be
addressed to: U.S. Department of Energy, Attention: Office of
Electricity and Energy Assurance, OE-30, Forrestal Building, 1000
Independence Avenue, SW., Washington, DC 20585.
[73 FR 10984, Feb. 29, 2008]
Sec. 216.9 Violations.
Any person who willfully furnishes false information or conceals any
material fact in the course of the application process or in a petition
for reconsideration is guilty of a crime, and upon conviction may be
punished by fine or imprisonment or both.
PART 218_STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION--Table of Contents
Subpart A_General Provisions
Sec.
218.1 Purpose and scope.
218.2 Activation/Deactivation.
218.3 Definitions.
Subpart B_Supply Orders
218.10 Rule.
218.11 Supply orders.
218.12 Pricing.
Subpart C [Reserved]
Subpart D_Procedures
218.30 Purpose and scope.
218.31 Incorporated procedures.
218.32 Review.
218.33 Stay.
218.34 Addresses.
Subpart E_Investigations, Violations, Sanctions and Judicial Actions
218.40 Investigations.
218.41 Violations.
218.42 Sanctions.
218.43 Injunctions.
Authority: 15 U.S.C. 751 et seq.; 15 U.S.C. 787 et seq.; 42 U.S.C.
6201 et seq.; 42 U.S.C. 7101 et seq.; E.O. 11790, 39 FR 23185; E.O.
12009, 42 FR 46267; 28 U.S.C. 2461 note.
Source: 44 FR 27972, May 14, 1979, unless otherwise noted.
Subpart A_General Provisions
Sec. 218.1 Purpose and scope.
(a) This part implements section 251 of the Energy Policy and
Conservation Act (Pub. L. 94-163) (42 U.S.C. 6271), as amended, which
authorizes the President to take such action as he determines to be
necessary for performance
[[Page 71]]
of the obligations of the United States under chapters III and IV of the
Agreement on an International Energy Program (TIAS 8278), insofar as
such obligations relate to the mandatory international allocation of oil
by International Energy Program participating countries.
(b) Applicability. This part applies to any firm engaged in
producing, transporting, refining, distributing or storing oil which is
subject to the jurisdiction of the United States.
Sec. 218.2 Activation/Deactivation.
(a) This rule shall take effect providing:
(1) The International Energy Program has been activated; and,
(2) The President has transmitted this rule to Congress, has found
putting such rule into effect is required in order to fulfill
obligations of the United States under the International Energy Program
and has transmitted such a finding to the Congress together with a
statement of the effective date and manner for exercise of such rule.
(b) This rule shall revert to standby status no later than 60 days
after the deactivation of the emergency allocation system activated to
implement the International Energy Program.
Sec. 218.3 Definitions.
DOE means the Department of Energy established by the Department of
Energy Organization Act (Pub. L. 95-91), and includes the Secretary of
Energy or his delegate.
EPCA means the Energy Policy and Conservation Act (Pub. L. 94-163),
as amended.
Firm means any association, company, corporation, estate,
individual, joint-venture, partnership, or sole proprietorship or any
other entity however organized including charitable, educational, or
other eleemosynary institutions, and the Federal Government including
corporations, departments, Federal agencies, and other
instrumentalities, and State and local governments. The ERA may, in
regulations and forms issued in this part, treat as a firm: (a) A parent
and the consolidated and unconsolidated entities (if any) which it
directly or indirectly controls, (b) a parent and its consolidated
entities, (c) an unconsolidated entity, or (d) any part of a firm.
IEA means the International Energy Agency established to implement
the IEP.
IEP means the International Energy Program established pursuant to
the Agreement on an International Energy Program signed at Paris,
France, on November 18, 1974, including (a) the Annex entitled
``Emergency Reserves'', (b) any amendment to such Agreement that
includes another nation as a Party to such Agreement, and (c) any
technical or clerical amendment to such Agreement.
International energy supply emergency means any period (a) beginning
on any date that the President determines allocation of petroleum
products to nations participating in the IEP is required by chapters III
and IV of the IEP and (b) ending on a date on which he determines such
allocation is no longer required.
Oil means crude oil, residual fuel oil, unfinished oil, refined
petroleum product and natural gas liquids, which is owned or controlled
by a firm, including any petroleum product destined, directly or
indirectly, for import into the United States or any foreign country, or
produced in the United States but excludes any oil stored in or owned
and controlled by the United States Government in connection with the
Strategic Petroleum Reserve authorized in section 151, et seq., of the
Energy Policy and Conservation Act (Pub. L. 94-163).
Person means any individual, firm, estate, trust, sole
proprietorship, partnership, association, company, joint-venture,
corporation, governmental unit or instrumentality thereof, or a
charitable, educational or other institution, and includes any officer,
director, owner or duly authorized representative thereof.
Supply order means a written directive or a verbal communication of
a written directive, if promptly confirmed in writing, issued by the DOE
pursuant to subpart B of this part.
United States when used in the geographic sense means the several
States, the District of Columbia, Puerto Rico, and the territories and
possessions of the United States, and the outer continental shelf as
defined in 43 U.S.C. 1331.
[[Page 72]]
Subpart B_Supply Orders
Sec. 218.10 Rule.
(a) Upon the determination by the President that an international
energy supply emergency exists, firms engaged in producing,
transporting, refining, distributing, or storing oil shall take such
actions as are determined by the DOE to be necessary for implementation
of the obligations of the United States under chapters III and IV of the
IEP that relate to the mandatory international allocation of oil by IEP
participating countries.
(b) Any actions required in accordance with paragraph (a) of this
section shall be stated in supply orders issued by DOE.
(c) No firm to which a supply order is issued shall be required to
comply with such order unless the firm to which the oil is to be
provided in accordance with such supply order has agreed to a procedure
for the resolution of any dispute related to the terms and conditions of
the sale undertaken pursuant to the supply order. The means for
resolving any such disputes may include any procedures that are mutually
acceptable to the parties, including arbitration before the IEA if the
IEA has established arbitration procedures, arbitration or adjudication
before an appropriate body, or any other similar procedure.
Sec. 218.11 Supply orders.
(a) A supply order shall require that the firm to which it is issued
take actions specified therein relating to supplying the stated volume
of oil to a specified recipient including, but not limited to,
distributing, producing, storing, transporting or refining oil. A supply
order shall include a concise statement of the pertinent facts and of
the legal basis on which it is issued, and shall describe the action to
be taken.
(b) The DOE shall serve a copy of the supply order on the firm
directed to act as stated therein.
(c) The DOE may modify or rescind a supply order on its own motion
or pursuant to an application filed in accordance with Sec. 218.32 of
this part.
(d) A supply order shall be effective in accordance with its terms,
and when served upon a firm directed to act thereunder, except that a
supply order shall not remain in effect (1) upon reversion of this rule
to standby status or (2) twelve months after the rule has been
transmitted to Congress (whichever occurs first) or (3) to the extent
that DOE or a court of competent jurisdiction directs that it be stayed,
modified, or rescinded.
(e) Any firm issued a supply order pursuant to this subpart may seek
modification or rescission of the supply order in accordance with
procedures provided in Sec. 218.32 of this part.
Sec. 218.12 Pricing.
The price for oil subject to a supply order issued pursuant to this
subpart shall be based on the price conditions prevailing for comparable
commercial transactions at the time the supply order is served.
Subpart C [Reserved]
Subpart D_Procedures
Sec. 218.30 Purpose and scope.
This subpart establishes the administrative procedures applicable to
supply orders. They shall be exclusive of any other procedures contained
in this chapter, unless such other procedures are specifically made
applicable hereto by this subpart.
Sec. 218.31 Incorporated procedures.
The following subparts of part 205 of this chapter are, as
appropriate, hereby made applicable to this part:
(a) Subpart A-- General Provisions; Provided, that Sec. 205.11
shall not apply; and Provided further, that in addition to the methods
of service specified in Sec. 205.7 of this chapter, service shall be
effective if a supply order is transmitted by telex, telecopies or other
similar means of electronic transmission of a writing and received by
the firm to which the supply order is addressed.
(b) Subpart F-- Interpretation.
(c) Subpart K-- Rulings.
(d) Subpart M-- Conferences, Hearings and Public Hearings.
[[Page 73]]
Sec. 218.32 Review.
(a) Purpose and scope. This subpart establishes the procedures for
the filing of an application for review of a supply order. An
application for review is a summary proceeding which will be initiated
only if the critieria described in paragraph (g)(2) of this section are
satisfied.
(b) What to file. (1) A firm filing under this subpart shall file an
``Application for Review'' 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
firm filing the application. The applicant shall comply with the general
filing requirements stated in 10 CFR 205.9 in addition to the
requirements stated in this section.
(2) 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 10 CFR 205.9(f) shall
apply.
(c) When to file. An application for review should be filed no later
than 5 days after the receipt by the applicant of the supply order that
is the subject of the application, or no later than 2 days after the
occurrence of an event that results in a substantial change in the facts
or circumstances affecting the applicant.
(d) Where to file. The application for review shall be filed with
DOE Office of Hearings and Appeals (OHA), 2000 M Street, NW.,
Washington, DC 20461.
(e) Notice. The applicant shall send by United States mail or
deliver by hand a copy of the application and any subsequent amendments
or other documents relating to the application to the Administrator of
the Economic Regulatory Administration of DOE, 2000 M Street, NW.,
Washington, DC 20461. Service shall be made on the ERA at same time the
document is filed with OHA and each document filed with the OHA shall
include certification that the applicant has complied with the
requirements of this paragraph.
(f) Contents. (1) The application shall contain a full and complete
statement of all relevant facts pertaining to the application and to the
DOE action sought. Such facts shall include a complete statement of the
business or other reasons that justify review of the supply order and a
full description of the pertinent provisions and relevant facts
contained in any relevant documents. Copies of all contracts,
agreements, leases, instruments, and other documents relevant to the
application shall be submitted with the application. A copy of the order
of which review is sought shall be included with the application. When
the application pertains to only one step of a larger integrated
transaction, the facts, circumstances, and other relevant information
pertaining to the entire transaction shall be submitted.
(2) The application shall include a discussion of all relevant
authorities, including, but not limited to, DOE and DOE rulings,
regulations, interpretations and decisions on appeal and exception
relied upon to support the action sought therein.
(g) DOE evaluation--(1) Processing. (i) The DOE may initiate an
investigation of any statement in an application and utilize in its
evaluation any relevant facts obtained by such investigation. The DOE
may solicit and accept submissions from third parties relevant to any
application for review provided that the applicant is afforded an
opportunity to respond to all third party submissions. In evaluating an
application for review, the DOE may convene a conference, on its own
initiative, if, in its discretion, it considers that a conference will
advance its evaluation of the application.
(ii) 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 without prejudice. If the failure to supply additional
information is repeated or willful, the DOE may dismiss the application
with prejudice. If the applicant fails to provide the notice required by
paragraph (e) of this section, the DOE may dismiss the application
without prejudice.
(iii) An order dismissing an application for any of the reasons
specified in paragraph (g)(1)(ii) of this section shall contain a
statement of the grounds for the dismissal. The order shall become final
within 5 days of its service upon
[[Page 74]]
the applicant, unless within such 5-day period the applicant files an
amendment correcting the deficiencies identified in the order. Within 5
days of the filing of such amendment, the DOE shall notify the applicant
whether the amendment corrects the specified deficiencies. If the
amendment does not correct the deficiencies specified in the order, the
order shall become a final order of the DOE of which the applicant may
seek judicial review.
(2) An application for review of an order shall be processed only if
the applicant demonstrates that--
(i) There is probable cause to believe that the supply order is
erroneous, inequitable, or unduly burdensome; or
(ii) There has been discovered a law, regulation, interpretation,
ruling, order or decision that was in effect at the time of the
application which, if it had been made known to the DOE, would have been
relevant to the supply order and would have substantially altered the
supply order; or
(iii) There has been a substantial change in the facts or
circumstances affecting the applicant, which change has occurred during
the interval between issuance of the supply order and the date of the
application and was caused by forces or circumstances beyond the control
of the applicant.
(h) Decision. (1) Upon consideration of the application and other
relevant information received or obtained during the proceeding, the DOE
shall issue an order granting or denying the modification or rescission
of the supply order requested in the application for review.
(2) The DOE shall process applications for review as expeditiously
as possible. When administratively feasible, the DOE shall issue an
order granting or denying the application within 20 business days after
receipt of the application.
(3) 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 which the applicant may seek judicial
review.
(4) The DOE shall serve a copy of the order upon the applicant and
any other party who participated in the proceeding.
Sec. 218.33 Stay.
(a) The DOE may issue an order granting a stay if the DOE determines
that an applicant has made a compelling showing that it would incur
serious and irreparable injury unless immediate stay relief is granted
pending determination of an application for review pursuant to this
subpart. An application for a 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 firm 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
irreparable injury unless immediate stay relief is granted. The
applicant shall comply with the general filing requirements stated in 10
CFR 205.9 in addition to the requirements stated in this section. The
DOE on its own initiative may also issue an order granting a stay upon a
finding that a firm will incur irreparable injury if such an order is
not granted.
(b) An order granting a stay shall expire by its terms within such
time after issuance, not to exceed 30 days as the DOE specifies in the
order, except that it shall expire automatically 5 days following its
issuance if the applicant fails within that period to file an
application for review unless within that period the DOE for good cause
shown, extends the time during which the applicant may file an
application for review.
(c) The order granting or denying a stay is not an order of the DOE
subject to administrative review.
Sec. 218.34 Addresses.
All correspondence, petitions, and any information required by this
part shall be submitted to: Administrator, Economic Regulatory
Administration, Department of Energy, 2000 M Street, NW., Washington, DC
20461, and to the Director, Office of Hearings and Appeals, Department
of Energy, 2000 M Street, NW., Washington, DC 20461.
[[Page 75]]
Subpart E_Investigations, Violations, Sanctions and Judicial Actions
Sec. 218.40 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 promulgated by the DOE
under the authority of section 251 of EPCA, or any court decree.
(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 Sec. 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.
(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 are a 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.
(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.
Sec. 218.41 Violations.
Any practice that circumvents, contravenes or results in the
circumvention or contravention of the requirements of any provision of
this part 218 or any order issued pursuant thereto is a violation of the
DOE regulations stated in this part and is unlawful.
Sec. 218.42 Sanctions.
(a) General. Any person who violates any provisions of this part 218
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 part 218 or
any order issued pursuant thereto continues shall be deemed to
constitute a separate violation within the meaning of the provisions of
this part relating to fines and civil penalties.
(b) Penalties. (1) Any person who violates any provision of part 218
of this chapter or any order issued pursuant thereto shall be subject to
a civil penalty of not more than $8,000 for each violation.
(2) Any person who willfully violates any provision of this part 218
or any order issued pursuant thereto shall be subject to a fine of not
more than $10,000 for each violation.
(3) Any person who knowingly and willfully violates any provision of
this part 218 or any order issued pursuant thereto with respect to the
sale, offer of sale, or distribution in commerce of oil in commerce
after having been subject to a sanction under paragraph (b)(1) or (2) of
this section for a prior violation of the provisions of this part 218 or
any order issued pursuant thereto with respect to the sale, offer of
sale, or distribution in commerce of oil shall be subject to a fine of
not more than $50,000 or imprisonment for not
[[Page 76]]
more than six months, or both, for each violation.
(4) Actions for penalties under this section are prosecuted by the
Department of Justice upon referral by the DOE.
(5) When the DOE considers it to be appropriate or advisable, the
DOE may compromise and settle any action under this paragraph, and
collect civil penalties.
(c) Other Penalties. Willful concealment of material facts, or
making of false, fictitious or fraudulent statements or representations,
or submission of a document containing false, fictitious or fraudulent
statements pertaining to matters within the scope of this part 218 by
any person shall subject such persons to the criminal penalties provided
in 18 U.S.C. 1001 (1970).
[44 FR 27972, May 14, 1979, as amended at 62 FR 46183, Sept. 2, 1997; 74
FR 66032, Dec. 14, 2009]
Sec. 218.43 Injunctions.
Whenever it appears to the DOE that any firm has engaged, is
engaging, or is about to engage in any act or practice constituting a
violation of any regulation or order issued under this part 218, the DOE
may request the Attorney General to bring a civil 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 or permanent injunction shall be granted without bond. The
relief sought may include a mandatory injunction commanding any firm to
comply with any provision of such order or regulation, the violation of
which is prohibited by section 524 of the EPCA.
PART 220 [RESERVED]
PART 221_PRIORITY SUPPLY OF CRUDE OIL AND PETROLEUM PRODUCTS TO THE DEPARTMENT
OF DEFENSE UNDER THE DEFENSE PRODUCTION ACT--Table of Contents
Subpart A_General
Sec.
221.1 Scope.
221.2 Applicability.
Subpart B_Exclusions
221.11 Natural gas and ethane.
Subpart C_Definitions
221.21 Definitions.
Subpart D_Administrative Procedures and Sanctions
221.31 Requests by DOD.
221.32 Evaluation of DOD request.
221.33 Order.
221.34 Effect of order.
221.35 Contractual requirements.
221.36 Records and reports.
221.37 Violations and sanctions.
Authority: Defense Production Act, 50 U.S.C. App. 2061 et seq., E.O.
10480 (18 FR 4939, Aug. 18, 1953) as amended by E.O. 12038 (43 FR 4957,
Feb. 7, 1978), and E.O. 11790 (39 FR 23785, June 27, 1974).
Source: 45 FR 76433, Nov. 19, 1980, unless otherwise noted.
Subpart A_General
Sec. 221.1 Scope.
This part sets forth the procedures to be utilized by the Economic
Regulatory Administration of the Department of Energy and the Department
of Defense whenever the priority supply of crude oil and petroleum
products is necessary or appropriate to meet national defense needs. The
procedures available in this part are intended to supplement but not to
supplant other regulations of the ERA regarding the allocation of crude
oil, residual fuel oil and refined petroleum products.
Sec. 221.2 Applicability.
This part applies to the mandatory supply of crude oil, refined
petroleum products (including liquefied petroleum gases) and lubricants
to the Department of Defense for its own use or for purchases made by
the Department of Defense on behalf of other Federal Government
agencies.
Subpart B_Exclusions
Sec. 221.11 Natural gas and ethane.
The supply of natural gas and ethane are excluded from this part.
[[Page 77]]
Subpart C_Definitions
Sec. 221.21 Definitions.
For purposes of this part--
Directive means an official action taken by ERA which requires a
named person to take an action in accordance with its provisions.
DOD means the Department of Defense, including Military Departments
and Defense Agencies, acting through either the Secretary of Defense or
the designee of the Secretary.
ERA means the Economic Regulatory Administration of the Department
of Energy.
National defense means programs for military and atomic energy
production or construction, military assistance to any foreign nation,
stockpiling and space, or activities directly related to any of the
above.
Person means any individual, corporation, partnership, association
or any other organized group of persons, and includes any agency of the
United States Government or any other government.
Priority-rated supply order means any delivery order for crude oil
or petroleum products issued by DOD bearing a priority rating issued by
ERA under this part.
Supplier means any person other than the DOD which supplies, sells,
transfers, or otherwise furnishes (as by consignment) crude oil or
petroleum product to any other person.
Subpart D_Administrative Procedures and Sanctions
Sec. 221.31 Requests by DOD.
(a) When DOD finds that (1) a fuel supply shortage for DOD exists or
is anticipated which would have a substantial negative impact on the
national defense, and (2) the defense activity for which fuel is
required cannot be postponed until after the fuel supply shortage is
likely to terminate, DOD may submit a written request to ERA for the
issuance to it of a priority rating for the supply of crude oil and
petroleum products.
(b) Not later than the transmittal date of its request to ERA, DOD
shall notify the Federal Emergency Management Agency that it has
requested a priority rating from ERA.
(c) Requests from DOD shall set forth the following:
(1) The quantity and quality of crude oil or petroleum products
determined by DOD to be required to meet national defense requirements;
(2) The required delivery dates;
(3) The defense-related activity and the supply location for which
the crude oil or petroleum product is to be delivered;
(4) The current or most recent suppliers of the crude oil or
petroleum product and the reasons, if known, why the suppliers will not
supply the requested crude oil or petroleum product;
(5) The degree to which it is feasible for DOD to use an alternate
product in lieu of that requested and, if such an alternative product
can be used, the efforts which have been made to obtain the alternate
product;
(6) The period during which the shortage of crude oil or petroleum
products is expected to exist;
(7) The proposed supply source for the additional crude oil or
petroleum products required, which shall, if practicable, be the
historical supplier of such crude oil or product to DOD; and
(8) Certification that DOD has made each of the findings required by
paragraph (a) of this section.
Sec. 221.32 Evaluation of DOD request.
(a) Upon receipt of a request from DOD for a priority rating as
provided in Sec. 221.31, it shall be reviewed promptly by ERA. The ERA
will assess the request in terms of:
(1) The information provided under Sec. 221.31;
(2) Whether DOD's national defense needs for crude oil or petroleum
products can reasonably be satisfied without exercising the authority
specified in this part;
(3) The capability of the proposed supplier to supply the crude oil
or petroleum product in the amounts required;
(4) The known capabilities of alternative suppliers;
(5) The feasibility to DOD of converting to and using a product
other than that requested; and
(6) Any other relevant information.
[[Page 78]]
(b) The ERA promptly shall notify the proposed supplier of DOD's
request for a priority rating specified under this part. The proposed
supplier shall have a period specified in the notice, not to exceed
fifteen (15) days from the date it is notified of DOD's request, to show
cause in writing why it cannot supply the requested quantity and quality
of crude oil or petroleum products. ERA shall consider this information
in determining whether to issue the priority rating.
(c) If acceptance by a supplier of a rated order would create a
conflict with another rated order of the supplier, it shall include all
pertinent information regarding such conflict in its response to the
show cause order provided for in subsection (b), and ERA, in
consultation with DOD and the Federal Emergency Management Agency shall
determine the priorities for meeting all such requirements.
(d) ERA may waive some or all of the requirements of Sec. 221.31 or
this section where the Secretary of Defense or his designee certifies,
and has so notified the Federal Emergency Management Agency, that a fuel
shortage for DOD exists or is imminent and that compliance with such
requirements would have a substantial negative impact on the national
defense.
Sec. 221.33 Order.
(a) Issuance. If ERA determines that issuance of a priority rating
for a crude oil or refined petroleum product is necessary to provide the
crude oil or petroleum products needed to meet the national defense
requirement established by DOD, it shall issue such a rating to DOD for
delivery of specified qualities and quantities of the crude oil or
refined petroleum products on or during specified delivery dates or
periods. In accordance with the terms of the order, DOD may then place
such priority rating on a supply order.
(b) Compliance. Each person who receives a priority-rated supply
order pursuant to this part shall supply the specified crude oil or
petroleum products to DOD in accordance with the terms of that order.
(c) ERA directives. Notwithstanding any other provisions of this
part, where necessary or appropriate to promote the national defense ERA
is authorized to issue a directive to a supplier of crude oil or
petroleum product requiring delivery of specified qualities and
quantities of such crude oil or petroleum products to DOD at or during
specified delivery dates or periods.
(d) Use of ratings by suppliers. No supplier who receives a
priority-rated supply order or directive issued under the authority of
this section may use such priority order or directive in order to obtain
materials necessary to meet its supply obligations thereunder.
Sec. 221.34 Effect of order.
Defense against claims for damages. No person shall be liable for
damages or penalties for any act or failure to act resulting directly or
indirectly from compliance with any ERA authorized priority-rated supply
order or ERA directive issued pursuant to this part, notwithstanding
that such priority-rated supply order or directive thereafter be
declared by judicial or other competent authority to be invalid.
Sec. 221.35 Contractual requirements.
(a) No supplier may discriminate against an order or contract on
which a priority rating has been placed under this part by charging
higher prices, by imposing terms and conditions for such orders or
contracts different from other generally comparable orders or contracts,
or by any other means.
(b) Contracts with priority ratings shall be subject to all
applicable laws and regulations which govern the making of such
contracts, including those specified in 10 CFR 211.26(e).
Sec. 221.36 Records and reports.
(a) Each person receiving an order or directive under this part
shall keep for at least two years from the date of full compliance with
such order or directive accurate and complete records of crude oil and
petroleum product deliveries made in accordance with such order or
directive.
[[Page 79]]
(b) All records required to be maintained shall be made available
upon request for inspection and audit by duly authorized representatives
of the ERA.
(Approved by the Office of Management and Budget under control number
1903-0073)
[45 FR 76433, Nov. 19, 1980, as amended at 46 FR 63209, Dec. 31, 1981]
Sec. 221.37 Violations and sanctions.
(a) Any practice that circumvents or contravenes the requirements of
this part or any order or directive issued under this part is a
violation of the regulations provided in this part.
(b) Criminal penalties. Any person who willfully performs any act
prohibited, or willfully fails to perform any act required by this part
or any order or directive issued under this part shall be subject to a
fine of not more than $10,000 for each violation or imprisoned for not
more than one year for each violation, or both.
(c) Whenever in the judgment of the Administrator of ERA any person
has engaged or is about to engage in any acts or practices which
constitute or will constitute a violation of any provision of these
regulations, the Administrator may make application to the appropriate
court for an order enjoining such acts or practices, or for an order
enforcing compliance with such provision.
[[Page 80]]
SUBCHAPTER B_CLIMATE CHANGE
PART 300_VOLUNTARY GREENHOUSE GAS REPORTING PROGRAM: GENERAL GUIDELINES--Table
of Contents
Sec.
300.1 General.
300.2 Definitions.
300.3 Guidance for defining and naming the reporting entity.
300.4 Selecting organizational boundaries.
300.5 Submission of an entity statement.
300.6 Emissions inventories.
300.7 Net emission reductions.
300.8 Calculating emission reductions.
300.9 Reporting and recordkeeping requirements.
300.10 Certification of reports.
300.11 Independent verification.
300.12 Acceptance of reports and registration of entity emission
reductions.
300.13 Incorporation by reference.
Authority: 42 U.S.C. 7101, et seq., and 42 U.S.C. 13385(b).
Source: 71 FR 20805, Apr. 21, 2006, unless otherwise noted.
Sec. 300.1 General.
(a) Purpose. The General Guidelines in this part and the Technical
Guidelines incorporated by reference in Sec. 300.13 govern the
Voluntary Reporting of Greenhouse Gases Program authorized by section
1605(b) of the Energy Policy Act of 1992 (42 U.S.C. 13385(b)). The
purpose of the guidelines is to establish the procedures and
requirements for filing voluntary reports, and to encourage
corporations, government agencies, non-profit organizations, households
and other private and public entities to submit annual reports of their
greenhouse gas emissions, emission reductions, and sequestration
activities that are complete, reliable and consistent. Over time, it is
anticipated that these reports will provide a reliable record of the
contributions reporting entities have made toward reducing their
greenhouse gas emissions.
(b) Reporting under the program. (1) Each reporting entity, whether
or not it intends to register emissions as described in paragraph (c) of
this section, must:
(i) File an entity statement that meets the appropriate requirements
in Sec. 300.5(d) through (f) of this part;
(ii) Use appropriate emission inventory and emission reduction
calculation methods specified in the Technical Guidelines (incorporated
by reference, see Sec. 300.13), and calculate and report the weighted
average quality rating of any emission inventories it reports;
(iii) Comply with the record keeping requirements in Sec. 300.9 of
this part; and
(iv) Comply with the certification requirements in Sec. 300.10 of
this part;
(2) Each reporting entity, whether or not it intends to register
emissions as described in paragraph (c) of this section, may report
offset reductions achieved by other entities outside their boundaries as
long as such reductions are reported separately and calculated in
accordance with methods specified in the Technical Guidelines. The
third-party entity that achieved these reductions must agree to their
being reported as offset reductions, and must also meet all of the
requirements of reporting that would apply if the third-party entity
reported directly under the 1605(b) program.
(3) An entity that intends to register emissions and emission
reductions must meet the additional requirements referenced in paragraph
(c) of this section.
(4) An entity that does not intend to register emissions and
emission reductions may choose to report its emissions and/or emission
reductions on an entity-wide basis or for selected elements of the
entity, selected gases or selected sources.
(5) An entity that does not intend to register emissions may report
emission inventories for any year back to 1990 and may report emission
reductions for any year back to 1991, relative to a base period of one
to four years, ending no earlier than 1990.
(c) Registration requirements. Entities that seek to register
reductions must meet the additional requirements in this paragraph;
although these requirements differ depending on whether the entity is a
large or small emitter.
(1) To be eligible for registration, a reduction must have been
achieved after 2002, unless the entity has committed under the Climate
Leaders or
[[Page 81]]
Climate VISION programs to reduce its entity-wide emissions relative to
a base period that ends earlier 2002, but no earlier than 2000.
(2) A large emitter must submit an entity-wide emission inventory
that meets or exceeds the minimum quality requirements specified in
Sec. 300.6(b) and the Technical Guidelines (incorporated by reference,
see Sec. 300.13). Registered reductions of a large emitter must be
based on an entity-wide assessment of net emission reductions,
determined in accordance with Sec. 300.8 and the Technical Guidelines.
(3) A small emitter must also submit an emission inventory that
meets minimum quality requirements specified in Sec. 300.6(b) and the
Technical Guidelines (incorporated by reference, see Sec. 300.13) and
base its registered reductions on an assessment of annual changes in net
emissions. A small emitter, however, may restrict its inventory and
assessment to a single type of activity, such as forest management,
building operations or agricultural tillage.
(4) Reporting entities may, under certain conditions, register
reductions achieved by other entities:
(i) Reporting entities that have met the requirements for
registering their own reductions may also register offset reductions
achieved by other entities if:
(A) They have an agreement with the third-party entities to do so
and these third-party entities have met all of the requirements for
registration; or
(B) They were the result of qualified demand management or other
programs and are calculated in accordance with the action-specific
method identified in Sec. 300.8(h)(5).
(ii) Small emitters that serve as an aggregator may register offset
reductions achieved by non-reporting entities without reporting on their
own emissions, as long as they have an agreement with the third-party
entities to do so and these third-party entities have met all of the
requirements for registration.
(d) Forms. Annual reports of greenhouse gas emissions, emission
reductions, and sequestration must be made on forms or software made
available by the Energy Information Administration of the Department of
Energy (EIA).
(e) Status of reports under previous guidelines. EIA continues to
maintain in its Voluntary Reporting of Greenhouse Gases database all
reports received pursuant to DOE's October 1994 guidelines. Those
guidelines are available from EIA at http://www.eia.doe.gov/oiaf/1605/
guidelns.html.
(f) Periodic review and updating of General and Technical
Guidelines. DOE intends periodically to review the General Guidelines
and the Technical Guidelines (incorporated by reference, see Sec.
300.13) to determine whether any changes are warranted; DOE anticipates
these reviews will occur approximately once every three years. These
reviews will consider any new developments in climate science or policy,
the participation rates of large and small emitters in the 1605(b)
program, the general quality of the data submitted by different
participants, and any changes to other emissions reporting protocols.
Possible changes may include, but are not limited to:
(1) The addition of greenhouse gases that have been demonstrated to
have significant, quantifiable climate forcing effects when released to
the atmosphere in significant quantities;
(2) Changes to the minimum, quantity-weighted quality rating for
emission inventories;
(3) Updates to emission inventory methods, emission factors and
other provisions that are contained in industry protocols or standards.
The review may also consider updates to any government-developed and
consensus-based emission factors for which automatic updating is not
provided in the Technical Guidelines;
(4) Modifications to the benchmarks or emission conversion factors
used to calculate avoided and indirect emissions; and
(5) Changes in the minimum requirements for registered emission
reductions.
Sec. 300.2 Definitions.
This section provides definitions for commonly used terms in this
part.
Activity of a small emitter means, with respect to a small emitter,
any single category of anthropogenic production,
[[Page 82]]
consumption or other action that releases emissions or results in
sequestration, the annual changes of which can be assessed generally by
using a single calculation method.
Aggregator means an entity that reports to the 1605(b) program on
behalf of non-reporting entities. An aggregator may be a large or small
emitter, such as a trade association, non-profit organization or public
agency.
Anthropogenic means greenhouse gas emissions and removals that are a
direct result of human activities or are the result of natural processes
that have been affected by human activities.
Avoided emissions means the greenhouse gas emission reductions that
occur outside the organizational boundary of the reporting entity as a
direct consequence of changes in the entity's activity, including but
not necessarily limited to the emission reductions associated with
increases in the generation and sale of electricity, steam, hot water or
chilled water produced from energy sources that emit fewer greenhouse
gases per unit than other competing sources of these forms of
distributed energy.
Base period means a period of 1-4 years used to derive the average
annual base emissions, emissions intensity or other values from which
emission reductions are calculated.
Base value means the value from which emission reductions are
calculated for an entity or subentity. The value may be annual
emissions, emissions intensity, kilowatt-hours generated, or other value
specified in the 1605(b) guidelines. It is usually derived from actual
emissions and/or activity data derived from the base period.
Biogenic emissions mean emissions that are naturally occurring and
are not significantly affected by human actions or activity.
Boundary means the actual or virtual line that encompasses all the
emissions and carbon stocks that are to be quantified and reported in an
entity's greenhouse gas inventory, including de minimis emissions.
Entities may use financial control or another classification method
based on ownership or control as the means of determining which sources
or carbon stocks fall within this organizational boundary.
Carbon dioxide equivalent means the amount of carbon dioxide by
weight emitted into the atmosphere that would produce the same estimated
radiative forcing as a given weight of another radiatively active gas.
Carbon dioxide equivalents are computed by multiplying the weight of the
gas being measured by its estimated global warming potential.
Carbon stocks mean the quantity of carbon stored in biological and
physical systems including: trees, products of harvested trees,
agricultural crops, plants, wood and paper products and other
terrestrial biosphere sinks, soils, oceans, and sedimentary and
geological sinks.
Climate Leaders means the EPA sponsored industry-government
partnership that works with individual companies to develop long-term
comprehensive climate change strategies. Certain Climate Leaders
Partners have, working with EPA, set a corporate-wide greenhouse gas
reduction goal and have inventoried their emissions to measure progress
towards their goal.
Climate VISION means the public-private partnership initiated
pursuant to a Presidential directive issued in 2002 that aims to
contribute to the President's goal of reducing greenhouse gas intensity
through voluntary frameworks with industry. Climate VISION partners have
signed an agreement with DOE to implement various climate-related
actions to reduce greenhouse gas emissions.
De minimis emissions means emissions from one or more sources and of
one or more greenhouse gases that, in aggregate, are less than or equal
to 3 percent of the total annual carbon dioxide (CO2)
equivalent emissions of a reporting entity.
Department or DOE means the U.S. Department of Energy.
Direct emissions are emissions from sources within the
organizational boundaries of an entity.
Distributed energy means electrical or thermal energy generated by
an entity that is sold or otherwise exported outside of the entity's
boundaries for use by another entity.
[[Page 83]]
EIA means the Energy Information Administration within the U.S.
Department of Energy.
Emissions means the direct release of greenhouse gases to the
atmosphere from any anthropogenic (human induced) source and certain
indirect emissions (releases) specified in this part.
Emissions intensity means emissions per unit of output, where output
is defined as the quantity of physical output, or a non-physical
indicator of an entity's or subentity's productive activity.
Entity means the whole or part of any business, institution,
organization, government agency or corporation, or household that:
(1) Is recognized under any U.S. Federal, State or local law that
applies to it;
(2) Is located and operates, at least in part, in the United States;
and
(3) The emissions of such operations are released, at least in part,
in the United States.
First reduction year means the first year for which an entity
intends to register emission reductions; it is the year that immediately
follows the start year.
Fugitive emissions means uncontrolled releases to the atmosphere of
greenhouse gases from the processing, transmission, and/or
transportation of fossil fuels or other materials, such as HFC leaks
from refrigeration, SF6 from electrical power distributors, and methane
from solid waste landfills, among others, that are not emitted via an
exhaust pipe(s) or stack(s).
Greenhouse gases means the gases that may be reported to the
Department of Energy under this program. They are:
(1) Carbon dioxide (CO2)
(2) Methane (CH4)
(3) Nitrous oxide (N2O)
(4) HydrofluorocarbonsHFC-23 [trifluoromethane-(CHF3]HFC-
32 [trifluoromethane-CH2F2],
CH2CF3, CH3F,
CHF2CF3, CH2FCF3,
CH3FCF3, CHF2CH2F,
CF3CH3, CH2FCH2F,
CH3CHF2, CH3CH2F,
CF3CHFCF3,
CH2FCF3CF3,
CHF2CHFCF3,
CF3CH2CF3,
CH2FCF2CHF2,
CHF2CH2CF3,
CF3CH2CF2CH3, CH3
CHFCHFCF2)
(5) Perfluorocarbons (perfluoromethane-CF4,
perfluoroethane-C2F6, C3F8,
C4F10, c-C4F8,
C5F12, C6F14)
(6) Sulfur hexafluoride (SF6)
(7) Chlorofluorocarbons (CFC-11 [trichlorofluoromethane-
CCl3F], CCl2F2, CClF3,
CCl2FCClF2, CClF2CClF2,
ClF3CClF2,)
(8) Other gases or particles that have been demonstrated to have
significant, quantifiable climate forcing effects when released to the
atmosphere in significant quantities and for which DOE has established
or approved methods for estimating emissions and reductions. (Note: As
provided in Sec. 300.6(i), chlorofluorcarbons and other gases with
quantifiable climate forcing effects may be reported to the 1605(b)
program if DOE has established an appropriate emission inventory or
emission reduction calculation method, but reductions of these gases may
not be registered.)
Incidental lands are entity landholdings that are a minor component
of an entity's operations and are not actively managed for production of
goods and services, including:
(1) Transmission, pipeline, or transportation right of ways that are
not managed for timber production;
(2) Land surrounding commercial enterprises or facilities; and
(3) Land where carbon stock changes are determined by natural
factors.
Indirect emissions means greenhouse gas emissions from stationary or
mobile sources outside the organizational boundary that occur as a
direct consequence of an entity's activity, including but not
necessarily limited to the emissions associated with the generation of
electricity, steam and hot/chilled water used by the entity.
Large emitter means an entity whose annual emissions are more than
10,000 metric tons of CO2 equivalent, as determined in
accordance with Sec. 300.5(c).
Net emission reductions means the sum of all annual changes in
emissions, eligible avoided emissions and sequestration of the
greenhouse gases specifically identified in Sec. 300.6(i), and
determined to be in conformance with Sec. Sec. 300.7 and 300.8 of this
part.
Offset means an emission reduction that is included in a 1605(b)
report and
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meets the requirements of this part, but is achieved by an entity other
than the reporting entity. Offset reductions must not be reported or
registered by any other entity and must appear as a separate and
distinct component of an entity's report. Offsets are not integrated
into the reporting entity's emissions or net emission reductions.
Registration means the reporting of emission reductions that the EIA
has determined meet the qualifications for registered emission
reductions set forth in the guidelines.
Reporting entity means an entity that has submitted a report under
the 1605(b) program that has been accepted by the Energy Information
Administration.
Reporting year means the year that is the subject of a report to
DOE.
Sequestration means the process by which CO2 is removed
from the atmosphere, either through biologic processes or physical
processes.
Simplified Emission Inventory Tool (SEIT) is a computer-based
method, to be developed and made readily accessible by EIA, for
translating common physical indicators into an estimate of greenhouse
gas emissions.
Sink means an identifiable discrete location, set of locations, or
area in which CO2 or some other greenhouse gas is
sequestered.
Small emitter means an entity whose annual emissions are less than
or equal to 10,000 metric tons of CO2 equivalent, as
determined in accordance with Sec. 300.5(c), and that chooses to be
treated as a small emitter under the guidelines.
Source means any land, facility, process, vehicle or activity that
releases a greenhouse gas.
Start year means the year upon which the initial entity statement is
based and the last year of the initial base period(s).
Subentity means a component of any entity, such as a discrete
business line, facility, plant, vehicle fleet, or energy using system,
which has associated with it emissions of greenhouse gases that can be
distinguished from the emissions of all other components of the same
entity and, when summed with the emissions of all other subentities,
equal the entity's total emissions.
Total emissions means the total annual contribution of the
greenhouse gases (as defined in this section) to the atmosphere by an
entity, including both direct and indirect entity-wide emissions.
United States or U.S. means the 50 States, the District of Columbia,
the Commonwealth of Puerto Rico, the Commonwealth of the Northern
Mariana Islands, Guam, American Samoa, and any other territory of the
United States.
Sec. 300.3 Guidance for defining and naming the reporting entity.
(a) A reporting entity must be composed of one or more businesses,
public or private institutions or organizations, households, or other
entities having operations that annually release emissions, at least in
part, in the United States. Entities may be defined by, as appropriate,
a certificate of incorporation, corporate charter, corporate filings,
tax identification number, or other legal basis of identification
recognized under any Federal, State or local law or regulation. If a
reporting entity is composed of more than one entity, all of the
entities included must be responsible to the same management hierarchy
and all entities that have the same management hierarchy must be
included in the reporting entity.
(b) All reporting entities are strongly encouraged to define
themselves at the highest level of aggregation. To achieve this
objective, DOE suggests the use of a corporate-level definition of the
entity, based on filings with the Securities and Exchange Commission or
institutional charters. While reporting at the highest level of
aggregation is encouraged, DOE recognizes that certain businesses and
institutions may conclude that reporting at some lower level is
desirable. Federal agencies are encouraged to report at the agency or
departmental level, but distinct organizational units (such as a
Department of the Interior Fish and Wildlife Service National Wildlife
Refuge) may report directly if authorized by their department or agency.
Once an entity has determined the level of corporate or institutional
management at which it will report (e.g., the holding
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company, subsidiary, regulated stationary source, state government,
agency, refuge, etc.), the entity must include all elements of the
organization encompassed by that management level and exclude any
organizations that are managed separately. For example, if two
subsidiaries of a parent company are to be covered by a single report,
then all subsidiaries of that parent company must also be included.
Similarly, if a company decides to report on the U.S. and Canadian
subsidiaries of its North American operations unit, it must also report
on any other subsidiaries of its North American unit, such as a Mexican
subsidiary.
(c) A name for the defined entity must be specified by all
reporters. For entities that intend to register reductions, this should
be the name commonly used to represent the activities being reported, as
long as it is not also used to refer to substantial activities not
covered by the entity's reports. While DOE believes entities should be
given considerable flexibility in defining themselves at an appropriate
level of aggregation, it is essential that the name assigned to an
entity that intends to register reductions corresponds closely to the
scope of the operations and emissions covered by its report. If, for
example, an individual plant or operating unit is reporting as an
entity, it should be given a name that corresponds to the specific plant
or unit, and not to the responsible subsidiary or corporate entity. In
order to distinguish a parent company from its subsidiaries, the name of
the parent company generally should not be incorporated into the name of
the reporting subsidiary, but if it is, the name of the parent company
usually should be secondary.
Sec. 300.4 Selecting organizational boundaries.
(a) Each reporting entity must disclose in its entity statement the
approach used to establish its organizational boundaries, which should
be consistent with the following guidelines:
(1) In general, entities should use financial control as the primary
basis for determining their organizational boundaries, with financial
control meaning the ability to direct the financial and operating
policies of all elements of the entity with a view to gaining economic
or other benefits from its activities over a period of many years. This
approach should ensure that all sources, including those controlled by
subsidiaries, that are wholly or largely owned by the entity are covered
by its reports. Sources that are under long-term lease of the entity
may, depending on the provisions of such leases, also be considered to
be under the entity's financial control. Sources that are temporarily
leased or operated by an entity generally would not be considered to be
under its financial control.
(2) Entities may establish organizational boundaries using
approaches other than financial control, such as equity share or
operational control, but must disclose how the use of these other
approaches results in organizational boundaries that differ from those
resulting from using the financial control approach.
(3) Emissions from facilities or vehicles that are partially-owned
or leased may be included at the entity's discretion, provided that the
entity has taken reasonable steps to assure that doing so does not
result in the double counting of emissions, sequestration or emission
reductions. Emissions reductions or sequestration associated with land,
facilities or other sources not owned or leased by an entity may not be
included in the entity's reports under the program unless the entity has
long-term control over the emissions or sequestration of the source and
the owner of the source has agreed that the emissions or sequestration
may be included in the entity's report.
(4) If the scope of a defined entity extends beyond the United
States, the reporting entity should use the same approach to determining
its organizational boundaries in the U.S. and outside the U.S.
(b) Each reporting entity must keep separate reports on emissions or
emission reductions that occur within its defined boundaries and those
that occur outside its defined boundaries. Entities must also keep
separate reports on emissions and emission reductions that occur outside
the United
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States and those that occur within the United States.
(c) An entity that intends to register its entity-wide emissions
reductions must document and maintain its organizational boundary for
accounting and reporting purposes.
Sec. 300.5 Submission of an entity statement.
(a) Determining the type of reporting entity. The entity statement
requirements vary by type of reporting entity. For the purposes of these
guidelines, there are three types of entities:
(1) Large emitters that intend to register emission reductions;
(2) Small emitters that intend to register emission reductions; and
(3) Emitters that intend to report, but not register emission
reductions.
(b) Choosing a start year. The first entity statement describes the
make-up, operations and boundaries of the entity, as they existed in the
start year.
(1) For all entities, it is the year immediately preceding the first
year for which the entity intends to register emission reductions and
the last year of the initial base period(s).
(2) For entities intending to register emission reductions, the
start year may be no earlier than 2002, unless the entity has made a
commitment to reduce its entity-wide emissions under the Climate Leaders
or Climate VISION program. An entity that has made such a commitment may
establish a start year derived from the base period of the commitment,
as long as it is no earlier than 2000.
(i) For a large emitter, the start year is the first year for which
the entity submits a complete emissions inventory under the 1605(b)
program.
(ii) The entity's emissions in its start year or its average annual
emissions over a period of up to four years ending in the start year
determine whether it qualifies to begin reporting as a small emitter.
(3) For entities not intending to register reductions, the start
year may be no earlier than 1990.
(c) Determining and maintaining large or small emitter reporting
status. (1) Any entity that intends to register emission reductions can
choose to participate as a large emitter, but only an entity that has
demonstrated that its annual emissions are less than or equal to 10,000
metric tons of CO2 equivalent may participate as a small
emitter. To demonstrate that its annual emissions are less than or equal
to 10,000 metric tons of CO2 equivalent, an entity must
submit either an estimate of its emissions during its chosen start year
or an estimate of its average annual emissions over a continuous period
not to exceed four years of time ending in its chosen start year, as
long as the operations and boundaries of the entity have not changed
significantly during that period.
(2) An entity must estimate its total emissions using methods
specified in Chapter 1 of the Technical Guidelines (incorporated by
reference, see Sec. 300.13) or by using the Simplified Emission
Inventory Tool (SEIT) provided by EIA and also discussed in Chapter 1.
The results of this estimate must be reported to EIA. [Note: emission
estimates developed using SEIT may not be used to prepare, in whole or
part, entity-wide emission inventories required for the registration of
reductions.]
(3) After starting to report, each small emitter must annually
certify that the emissions-related operations and boundaries of the
entity have not changed significantly since the previous report. A new
estimate of total emissions must be submitted after any significant
increase in emissions, any change in the operations or boundaries of the
small emitter, or every five years, whichever occurs first. Small
emitters with estimated annual emissions of over 9,000 metric tons of
CO2 equivalent should re-estimate and submit their emissions
annually. If an entity determines that it must report as a large
emitter, then it must continue to report as a large emitter in all
future years in order to ensure a consistent time series of reports.
Once a small emitter becomes a large emitter, it must begin reporting in
conformity with the reporting requirements for large emitters.
(d) Entity statements for large emitters intending to register
reductions. When a large emitter intending to register emission
reductions first reports under these guidelines, it must provide the
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following information in its entity statement:
(1) The name to be used to identify the participating entity;
(2) The legal basis of the named entity;
(3) The criteria used to determine:
(i) The organizational boundaries of the entity, if other than
financial control; and
(ii) The sources of emissions included or excluded from the entity's
reports, such as sources excluded as de minimis emissions;
(4) The names of any parent or holding companies the activities of
which will not be covered comprehensively by the entity's reports;
(5) The names of any large subsidiaries or organizational units
covered comprehensively by the entity's reports. All subsidiaries of the
entity must be covered by the entity's reports, but only large
subsidiaries must be specifically identified in the entity statement;
(6) A list of each country where operations occur, if the entity is
including any non-U.S. operations in its report;
(7) A description of the entity and its primary U.S. economic
activities, such as electricity generation, product manufacturing,
service provider or freight transport; for each country listed under
paragraph (d)(6) of this section, the large emitter should describe the
economic activity in that country.
(8) A description of the types of emission sources or sinks to be
covered in the entity's emission inventories, such as fossil fuel power
plants, manufacturing facilities, commercial office buildings or heavy-
duty vehicles;
(9) The names of other entities that substantially share the
ownership or operational control of sources that represent a significant
part of the reporting entity's emission inventories, and a certification
that, to the best of the certifier's knowledge, the direct greenhouse
gas emissions and sequestration in the entity's report are not included
in reports filed by any of these other entities to the 1605(b) program;
and
(10) Identification of the start year.
(e) Entity statements for small emitters intending to register
reductions. When a small emitter intending to register emission
reductions first reports under these guidelines, it must provide the
following information in its entity statement:
(1) The name to be used to identify the participating entity;
(2) The legal basis of the named entity;
(3) An identification of the entity's control over the activities
covered by the entity's reports, if other than financial control;
(4) The names of any parent or holding companies the activities of
which will not be covered comprehensively by the entity's reports;
(5) An identification or description of the primary economic
activities of the entity, such as agricultural production, forest
management or household operation; if any of the economic activities
covered by the entity's reports occur outside the U.S., a listing of
each country in which such activities occur;
(6) An identification or description of the specific activity (or
activities) and the emissions, avoided emissions or sequestration
covered by the entity's report, such as landfill gas recovery or forest
sequestration;
(7) A certification that, to the best of the certifier's knowledge,
the direct greenhouse gas emissions and sequestration in the entity's
report are not included in reports filed by any other entities reporting
to the 1605(b) program; and
(8) Identification of the start year.
(f) Entity statements for reporting entities not registering
reductions. When a participant not intending to register emission
reductions first reports under this part, it must, at a minimum, provide
the following information in its entity statement:
(1) The name to be used to identify the reporting entity;
(2) The legal basis of the entity;
(3) An identification of the entity's control over the activities
covered by the entity's reports, if other than financial control;
(4) A description of the entity and its primary economic activities,
such as electricity generation, product manufacturing, service provider,
freight transport, agricultural production, forest management or
household operation; if any of the economic activities covered by the
entity's reports occur
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outside the United States, a listing of each country in which such
activities occur; and
(5) A description of the types of emission sources or sinks, such as
fossil fuel power plants, manufacturing facilities, commercial office
buildings or heavy-duty vehicles, covered in the entity's reports of
emissions or emission reductions.
(g) Changing entity statements. (1) Reporting entities are required
to annually review and, if necessary, update their entity statements.
(2) From time to time, a reporting entity may choose to change the
scope of activities included within the entity's reports or the level at
which the entity wishes to report. A reporting entity may also choose to
change its organizational boundaries, its base period, or other elements
of its entity statement. For example, companies buy and sell business
units, or equity share arrangements may change. In general, DOE
encourages changes in the scope of reporting that expand the coverage of
an entity's report and discourages changes that reduce the coverage of
such reports unless they are caused by divestitures or plant closures.
Any such changes should be reported in amendments to the entity
statement, and major changes may warrant or require changes in the base
values used to calculate emission reductions and, in some cases, the
entity's base periods. Changes in the scope of reporting made on or
before May 31 of a given calendar year must be reflected in the report
submitted covering emissions and reductions for the following calendar
year. Reporting entities may choose to postpone incorporating changes in
the scope of reporting made after May 31 until submitting the report
covering emissions and reductions for the year after the following
calendar year. However, in no case should there be an interruption in
the annual reports of entities registering emission reductions. Chapter
2 of the Technical Guidelines (incorporated by reference, see Sec.
300.13) provides more specific guidance on how such changes should be
reflected in entity statements, reports, and emission reduction
calculations.
(h) Documenting changes in amended entity statements. A reporting
entity's entity statement in subsequent reports should focus primarily
on changes since the previous report. Specifically, the subsequent
entity statement should report the following information:
(1) For significant changes in the reporting entity's scope or
organizational boundaries, the entity should document:
(i) The acquisition or divestiture of discrete business units,
subsidiaries, facilities, and plants;
(ii) The closure or opening of significant facilities;
(iii) The transfer of economic activity to or from specific
subentities covered by the entity's reports, such as the transfer of
operations to non-U.S. subsidiaries;
(iv) Significant changes in land holdings (applies to entities
reporting on greenhouse gas emissions or sequestration related to land
use, land use change, or forestry);
(v) Whether the reporting entity is reporting at a higher level of
aggregation than it did in the previous report, and if so, a listing of
the subsidiary entities that are now aggregated under a revised
conglomerated entity, including a listing of any non-U.S. operations to
be added and the specific countries in which these operations are
located; and
(vi) Changes in its activities or operations (e.g., changes in
output, contractual arrangements, equipment and processes, outsourcing
or insourcing of significant activities) that are likely to have a
significant effect on emissions, together with an explanation of how it
believes the changes in economic activity influenced its reported
emissions or sequestrations.
Sec. 300.6 Emissions inventories.
(a) General. The objective of an emission inventory is to provide a
full accounting of an entity's emissions for a particular year,
including direct emissions of the first six categories of gases listed
in the definition of ``greenhouse gases'' in Sec. 300.2, indirect
emissions specified in paragraph (e) of this section, and all
sequestration or other changes in carbon stocks. An emission
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inventory must be prepared in accordance with Chapter 1 of the Technical
Guidelines (incorporated by reference, see Sec. 300.13). An inventory
does not include avoided emissions or any offset reductions, and is not
subsequently adjusted to reflect future acquisitions, divestitures or
other changes to the reporting entity (although a reporting entity often
makes these types of adjustments when calculating emission reductions
under the guidelines). Entity-wide inventories are a prerequisite for
the registration of emission reductions by entities with average annual
emissions of more than 10,000 metric tons of CO2 equivalent.
Entities that have average annual emissions of less than or equal to
10,000 metric tons of CO2 equivalent are eligible to register
emission reductions associated with specific activities without also
reporting an inventory of the total emissions, but such entities should
inventory and report the emissions associated with the specific
activity(ies) they do cover in their reports.
(b) Quality requirements for emission inventories. The Technical
Guidelines (incorporated by reference, see Sec. 300.13) usually
identify more than one acceptable method of measuring or estimating
greenhouse gas emissions. Each acceptable method is rated A, B, C or D,
with A methods usually corresponding to the highest quality method
available and D methods representing the lowest quality method that may
be used. Each letter is assigned a numerical rating reflecting its
relative quality, 4 for A methods, 3 for B methods, 2 for C methods and
1 for D methods. Entities that intend to register emission reductions
must use emission inventory methods that result in a quantity-weighted
average quality rating of at least 3.0.
(1) Entities may at any time choose to modify the measurement or
estimation methods that they use for their current or future year
emission inventories. Such modifications would enable entities to
gradually improve the quality of the ratings over time, but prior year
inventories may be modified only to correct significant errors.
(2) Entities that have had their emission quantities and the
quantity-weighted quality rating of their emissions inventory
independently verified may report their emissions and average quality
ratings by greenhouse gas, indirect emissions and sequestration, rather
than by source or sink category.
(3) Entities that certify that they have used only A or B methods,
may forego indicating in their reports the quality ratings of the
methods used and may forego calculating the quantity-weighted average
quality of their emission inventories.
(c) Using estimation methods not included in the Technical
Guidelines. An entity may obtain DOE approval for the use of an
estimation method not included in the Technical Guidelines (incorporated
by reference, see Sec. 300.13) if the method covers sources not
described in the Technical Guidelines, or if the method provides more
accurate results for the entity's specific circumstances than the
methods described in the Technical Guidelines. If an entity wishes to
propose the use of a method that is not described in the Technical
Guidelines, the entity must provide a written description of the method,
an explanation of how the method is implemented (including data
requirements), empirical evidence of the method's validity and accuracy,
and a suggested rating for the method to DOE's Office of Policy and
International Affairs (with a copy to EIA). DOE reserves the right to
deny the request, or to assign its own rating to the method. By
submitting this information, the entity grants permission to DOE to
incorporate the method in a future revision of the Technical Guidelines.
(d) Direct emissions inventories. Direct greenhouse gas emissions
that must be reported are the emissions resulting from stationary or
mobile sources within the organizational boundaries of an entity,
including but not limited to emissions resulting from combustion of
fossil fuels, process emissions, and fugitive emissions. Process
emissions (e.g., PFC emissions from aluminum production) must be
reported along with fugitive emissions (e.g., leakage of greenhouse
gases from equipment).
(e) Inventories of indirect emissions associated with purchased
energy. (1) To provide a clear incentive for the users
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of electricity and other forms of purchased energy to reduce demand, an
entity must include the indirect emissions from the consumption of
purchased electricity, steam, and hot or chilled water in the entity's
inventory as indirect emissions. To avoid double counting among
entities, the entity must report all indirect emissions separately from
its direct emissions. Entities should use the methods for quantifying
indirect emissions specified in the Technical Guidelines (incorporated
by reference, see Sec. 300.13).
(2) Entities may choose to report other forms of indirect emissions,
such as emissions associated with employee commuting, materials consumed
or products produced, although such other indirect emissions may not be
included in the entity's emission inventory and may not be the basis for
registered emission reductions. All such reports of other forms of
indirect emissions must be distinct from reports of indirect emissions
associated with purchased energy and must be based on emission
measurement or estimation methods identified in the Technical Guidelines
(incorporated by reference, see Sec. 300.13) or approved by DOE.
(f) Entity-level inventories of changes in terrestrial carbon
stocks. Annual changes in managed terrestrial carbon stocks should be
comprehensively assessed and reported across the entity, and the net
emissions resulting from such changes included in the entity's emissions
inventory. Entities should use the methods for estimating changes in
managed terrestrial carbon stocks specified in the Technical Guidelines
(incorporated by reference, see Sec. 300.13).
(g) Treatment of de minimis emissions and sequestration. (1)
Although the goal of the entity-wide reporting requirement is to provide
an accurate and comprehensive estimate of total emissions, there may be
small emissions from certain sources that are unduly costly or otherwise
difficult to measure or reliably estimate annually. An entity may
exclude particular sources of emissions or sequestration if the total
quantities excluded represent less than or equal to 3 percent of the
total annual CO2 equivalent emissions of the entity. The
entity must identify the types of emissions excluded and provide an
estimate of the annual quantity of such emissions using methods
specified in the Technical Guidelines (incorporated by reference, see
Sec. 300.13) or by using the Simplified Emissions Inventory Tool
(SEIT). The results of this estimate of the entity's total excluded
annual emissions must be reported to DOE together with the entity's
initial entity statement.
(2) After starting to report, each reporting entity that excludes
from its annual reports any de minimis emissions must re-estimate the
quantity of excluded emissions after any significant increase in such
emissions, or every five years, whichever occurs sooner.
(h) Separate reporting of domestic and international emissions. Non-
U.S. emissions included in an entity's emission inventory must be
separately reported and clearly distinguished from emissions originating
in the U.S. Entities must identify any country-specific factors used in
the preparation of such reports.
(i) Covered gases. Entity-wide emissions inventories must include
the emissions of the first six categories of named gases listed in the
definition of ``greenhouse gases'' in Sec. 300.2. Entities may report
chlorofluorocarbons and other greenhouse gases with quantifiable climate
forcing effects as long as DOE has established a method for doing so,
but such gases must be reported separately and emission reductions, if
any, associated with such other gases are not eligible for registration.
(j) Units for reporting. Emissions and sequestration should be
reported in terms of the mass (not volume) of each gas, using metric
units (e.g., metric tons of methane). Entity-wide and subentity
summations of emissions and reductions from multiple sources must be
converted into CO2 equivalent units using the global warming
potentials for each gas in the International Panel on Climate Change's
Third Assessment (or most recent) Report, as specified in the Technical
Guidelines (incorporated by reference, see Sec. 300.13). Entities
should specify the units used (e.g., kilograms, or metric tons).
Entities may need to use the standard conversion factors specified in
the Technical Guidelines to
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convert existing data into the common units required in the entity-level
report. Emissions from the consumption of purchased electricity must be
calculated by region (from the list provided by DOE in the Technical
Guidelines) or country, if outside the United States. Consumption of
purchased steam or chilled/hot water must be reported according to the
type of system and fuel used to generate it (from the list provided by
DOE in the Technical Guidelines). Entities must convert purchased energy
to CO2 equivalents using the conversion factors in the
Technical Guidelines. Entities should also provide the physical
quantities of each type of purchased energy covered by their reports.
Sec. 300.7 Net emission reductions.
(a) Entities that intend to register emission reductions achieved
must comply with the requirements of this section. Entities may
voluntarily follow these procedures if they want to demonstrate the
achievement of net, entity-wide reductions for years prior to the
earliest year permitted for registration. Only large emitters must
follow the requirements of paragraph (b) of this section, but small
emitters may do so voluntarily. Only entities that qualify as small
emitters may use the special procedures in paragraph (c) of this
section. Entities seeking to register emission reductions achieved by
other entities (offsets) must certify that these emission reductions
were calculated in a manner consistent with the requirements of
paragraph (d) of this section and use the emission reduction calculation
methods identified in Sec. 300.8. All entities seeking to register
emission reductions must comply with the requirements of paragraph (e)
of this section. Only reductions in the emissions of the first six
categories of gases listed in the definition of ``greenhouse gases'' in
Sec. 300.2 are eligible for registration.
(b) Assessing net emission reductions for large emitters. (1)
Entity-wide reporting is a prerequisite for registering emission
reductions by entities with average annual emissions of more than 10,000
metric tons of CO2 equivalent. Net annual entity-wide
emission reductions must be based, to the maximum extent practicable, on
a full assessment and sum total of all changes in an entity's emissions,
eligible avoided emissions and sequestration relative to the entity's
established base period(s). This assessment must include all entity
emissions, including the emissions associated with any non-U.S.
operations covered by the entity statement, although the reductions
achieved by non-U.S. operations must be separately totaled prior to
being integrated with the net emission reductions achieved by U.S.
operations. It must include the annual changes in the total emissions of
the entity, including the total emissions of each of the subentities
identified in its entity statement. All changes in emissions, avoided
emissions, and sequestration must be determined using methods that are
consistent with the guidelines described in Sec. 300.8 of this part.
(2) If it is not practicable to assess the changes in net emissions
resulting from certain entity activities using at least one of the
methods described in Sec. 300.8 of this part, the entity may exclude
them from its estimate of net emission reductions. The entity must
identify as one or more distinct subentities the sources of emissions
excluded for this reason and describe the reasons why it was not
practicable to assess the changes that had occurred. DOE believes that
few emission sources will be excluded for this reason, but has
identified at least two situations where such an exclusion would be
warranted. For example, it is likely to be impossible to assess the
emission changes associated with a new manufacturing plant that produces
a product for which the entity has no historical record of emissions or
emissions intensity (emissions per unit of product output). However,
once the new plant has been operational for at least a full year, a base
period and base value(s) for the new plant could be established and its
emission changes assessed in the following year. Until the emission
changes of this new subentity can be assessed, it should be identified
in the entity's report as a subentity for which no assessment of
emission changes is practicable. The other example involves a subentity
that has reduced its
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output below the levels of its base period. In such a case, the
subentity could not use the absolute emissions method and may also be
unable to identify an effective intensity metric or other method.
(3) In calculating its net annual emission reductions, an entity
should exclude any emissions or sequestration that have been excluded
from the entity's inventory. The entity should also exclude all de
minimis and biogenic emissions that are excluded from the entity's
inventory of greenhouse gas emissions from its assessments of emission
changes.
(c) Assessing emission reductions for entities with small emissions.
(1) Entities with average annual emissions of less than or equal to
10,000 metric tons of CO2 equivalent are not required to
inventory their total emissions or assess all changes in their
emissions, eligible avoided emissions and sequestration to qualify for
registered reductions. These entities may register emission reductions
that have occurred since 2002 and that are associated with one or more
specific activities, as long as they:
(i) Perform a complete assessment of the annual emissions and
sequestration associated with each of the activities upon which they
report, using methods that meet the same quality requirements applicable
to entity-wide emission inventories; and
(ii) Determine the changes in the emissions, eligible avoided
emissions or sequestration associated with each of these activities.
(2) An entity reporting as a small emitter must report on one or
more specific activities and is encouraged, but not required to report
on all activities occurring within the entity boundary. Examples of
small emitter activities include: vehicle operations; product
manufacturing processes; building operations or a distinct part thereof,
such as lighting; livestock operations; crop management; and power
generation. For example, a farmer managing several woodlots and also
producing a wheat crop may report emission reductions associated with
managing an individual woodlot. However, the farmer must also assess and
report the net sequestration resulting from managing all the woodlots
within the entity's boundary. The small emitter is not required to
report on emissions or reductions associated with growing the wheat
crop.
(3) A small emitter must certify that the reductions reported were
not caused by actions likely to cause increases in emissions elsewhere
within the entity's operations. This certification should be based on an
assessment of the likely direct and indirect effects of the actions
taken to reduce greenhouse gas emissions.
(d) Net emission reductions achieved by other entities (offset
reductions or emission reductions submitted by aggregators). A reporting
entity or aggregator under certain conditions may report or register all
or some of the net emission reductions achieved by entities that choose
not to report under the section 1605(b) program. In all cases, an
agreement must exist between the reporting entity or aggregator and the
other entity that specifies the quantity of the emission reductions (or
increases) achieved by the other entity that may be reported or
registered as an offset reduction by the reporting entity or aggregator.
A large emitter that is reporting on behalf of other entities must meet
all of the requirements applicable to large emitters, including
submission of an entity statement, an emissions inventory, and an
entity-wide assessment of emission reductions. If an aggregator is a
small emitter, it may choose to report only on the activities, emissions
and emission reductions of the entities on behalf of which it is
reporting and not to report on any of its own activities or emission
reductions. The reporting entity or aggregator must include in its
report all of the information on the other entity, including an entity
statement, an emissions inventory (when required), and an assessment of
emission reductions that would be required if the other entity were
directly reporting to EIA. The net emissions reductions (or increases)
of each other entity will be evaluated separately by EIA to determine
whether they are eligible for registration in accordance with the
guidelines of this part. Those registered reductions (or increases)
assigned by the
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other entity, by agreement, to a reporting entity or aggregator will be
included in EIA's summary of all registered offset reductions for that
entity or aggregator. If the agreement between the reporting entity and
other entity is discontinued, for any reason, the reporting entity must
inform EIA and must identify any emission reductions previously reported
that could be attributable to an increase in the carbon stocks of the
other entity. Such reductions will be removed by EIA from the records of
the reporting entity's offset reductions.
(e) Net emission reductions to be reported by other entities as
offset reductions. Entities must identify in their report the quantity
of any net emission reductions covered by the report, if any, that
another entity will report as an offset reduction, including the name of
the other entity;
(f) Adjusting for year-to-year increases in net emissions. (1)
Normally, net annual emission reductions for an entity are calculated by
summing the net annual changes in emissions, eligible avoided emissions
and sequestration, as determined using the calculation methods
identified in Sec. 300.8 and according to the procedures described in
paragraph (b) of this section for large emitters, paragraph (c) for
small emitters of this section for small emitters, and paragraph (d) of
this section for offsets. However, if the entity experienced a net
increase in emissions for one or more years, these increases must be
reported and taken into account in calculating any future year
reductions. If the entity subsequently achieves net annual emission
reductions, the net increases experienced in the preceding year(s) must
be more than offset by these reductions before the entity can once again
register emission reductions. For example, if an entity achieved a net
emission reduction of 5,000 metric tons of CO2 equivalent in
its first year, a net increase of 2,000 metric tons in its second year,
and a net reduction of 3,000 metric tons in its third year, it would be
able to register a 5,000 metric ton reduction in its first year, no
reduction in its second year, and a 1,000 metric ton reduction in its
third year (3,000-2,000). The entity must file full reports for each of
these three years. Its report for the second year would indicate the net
increase in emissions and this increase would be noted in EIA's summary
of the entity's report for that year and for any future year, until the
emissions increase was entirely offset by subsequent emission
reductions. If this same entity achieved a net reduction of only 1,000
metric tons in its third year, it would not be able to register
additional reductions until it had, in some future year, offset more
than its second year increase of 2,000 metric tons.
(2) [Reserved]
Sec. 300.8 Calculating emission reductions.
(a) Choosing appropriate emission reduction calculation methods. (1)
An entity must choose the method or methods it will use to calculate
emission reductions from the list provided in paragraph (h) of this
section. Each of the calculation methods has special characteristics
that make it applicable to only certain types of emissions and
activities. An entity should select the appropriate calculation method
based on several factors, including:
(i) How the entity's subentities are defined;
(ii) How the reporter will gather and report emissions data; and
(iii) The availability of other types of data that might be needed,
such as production or output data.
(2) For some entities, a single calculation method will be
sufficient, but many entities may need to apply more than one method
because discrete components of the entity require different calculation
methods. In such a case, the entity will need to select a method for
each subentity (or discrete component of the entity with identifiable
emission or reductions). The emissions and output measure (generally a
physical measure) of each subentity must be clearly distinguished and
reported separately. Guidance on the selection and specification of
calculation methods is provided in Chapter 2 of the Technical Guidelines
(incorporated by reference, see Sec. 300.13).
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(b) Identifying subentities for calculating reductions. If more than
one calculation method is to be used, an entity must specify the portion
of the entity (the subentity) to which each method will be applied. Each
subentity must be clearly identified. From time to time, it may be
necessary to modify existing or create new subentities. The entity must
provide to EIA a full description of such changes, together with an
explanation of why they were required.
(c) Choosing a base period for calculating reductions. In general,
the base period used in calculating emission reductions is the single
year or up to four-year period average immediately preceding the first
year of calculated emission reductions.
(d) Establishing base values. To calculate emission reductions, an
entity must establish a base value against which to compare reporting
year performance. The minimum requirements for base values for each type
of calculation method are specified in Chapter 2 of the Technical
Guidelines (incorporated by reference, see Sec. 300.13). In most cases,
an historic base value, derived from emissions or other data gathered
during the base period, is the minimum requirement specified. Entities
may, however, choose to establish base values that are more stringent
than the base values derived from the methods specified in Chapter 2 of
the Technical Guidelines as long as their report indicates the rationale
for the alternative base value and demonstrates that it would result in
a smaller quantity of emission reductions.
(e) Emission reduction and subentity statements. For each subentity,
an entity must submit to EIA the following information:
(1) An identification and description of the method used to
calculate emission reductions, including:
(i) The type of calculation method;
(ii) The measure of output used (if any); and
(iii) The method-specific base period for which any required base
value will be calculated.
(2) The base period used in calculating reductions. When an entity
starts to report, the base period used in calculating reductions must
end in the start year. However, over time the reporting entity may find
it necessary to revise or establish new base periods and base values in
response to significant changes in processes or output of the subentity.
(3) A description of the subentity and its primary economic activity
or activities, such as electricity generation, product manufacturing,
service provider, freight transport, or household operation; and
(4) A description of the emission sources or sinks covered, such as
fossil fuel power plants, manufacturing facilities, commercial office
buildings or heavy-duty vehicles.
(f) Changes in calculation methods, base periods and base values.
When significant changes occur in the composition or output of reporting
entities, a reporting entity may need to change previously specified
calculation methods, base periods or base values. A reporting entity
should make such changes only if necessary and it should fully document
the reasons for any changes. The Technical Guidelines (incorporated by
reference, see Sec. 300.13) describe when such changes should be made
and what information on such changes must be provided to DOE. In
general, such changes should not result in any alterations to previously
reported or registered emission reductions. A reporting entity may alter
previously reported or registered emission reductions only if necessary
to correct significant errors.
(g) Continuous reporting. To ensure that the summation of entity
annual reports accurately represents net, multi-year emission
reductions, an entity must submit a report every year, beginning with
the first reduction year. An entity may use a specific base period to
determine emission reductions in a given future year only if the entity
has submitted qualified reports for each intervening year. If an
interruption occurs in the annual reports of an entity, the entity must
subsequently report on all missing years prior to qualifying for the
registration of additional emission reductions.
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(h) Calculation methods. An entity must calculate any change in
emissions, avoided emissions or sequestration using one or more of the
methods described in this paragraph and in the Technical Guidelines
(incorporated by reference, see Sec. 300.13).
(1) Changes in emissions intensity. An entity may use emissions
intensity as a basis for determining emission reductions as long as the
entity selects a measure of output that is:
(i) A reasonable indicator of the output produced by the entity;
(ii) A reliable indicator of changes in the entity's activities;
(iii) Related to emissions levels; and
(iv) Any appropriate adjustments for acquisitions, divestitures,
insourcing, outsourcing, or changes in products have been made, as
described in the Technical Guidelines (incorporated by reference, see
Sec. 300.13).
(2) Changes in absolute emissions. An entity may use changes in the
absolute (actual) emissions (direct and/or indirect) as a basis for
determining net emission reductions as long as the entity makes only
those adjustments required by the Technical Guidelines (incorporated by
reference, see Sec. 300.13). An entity intending to register emission
reductions may use this method only if the entity demonstrates in its
report that any reductions derived from such changes were not achieved
as a result of reductions in the output of the entity, and certifies
that emission reductions are not the result of major shifts in the types
of products or services produced. Entities may report, but not register,
such reductions even if the output associated with such emissions is
declining.
(3) Changes in carbon storage (for actions within entity
boundaries). An entity may use changes in carbon storage as a basis for
determining net emission reductions as long as the entity uses
estimation and measurement methods that comply with the Technical
Guidelines (incorporated by reference, see Sec. 300.13), and has
included an assessment of the net changes in all sinks in its inventory.
(4) Changes in avoided emissions (for actions within entity
boundaries). An entity may use changes in avoided emissions to determine
its emission reductions. Avoided emissions eligible to be included in
the calculation of net emission reductions that qualify for registration
include those associated with the sale of electricity, steam, hot water
or chilled water generated from non-emitting or low-emitting sources as
a basis for determining net emission reductions as long as:
(i) The measurement and calculation methods used comply with the
Technical Guidelines (incorporated by reference, see Sec. 300.13);
(ii) The entity certifies that any increased sales were not
attributable to the acquisition of a generating facility that had been
previously operated, unless the entity's base period includes generation
values from the acquired facility's operation prior to its acquisition;
and
(iii) Generators of distributed energy that have net emissions in
their base period and intend to report reductions resulting from changes
in eligible avoided emissions, use a method specified in the Technical
Guidelines (incorporated by reference, see Sec. 300.13) that integrates
the calculation of reductions resulting from both changes in emissions
intensity and changes in avoided emissions.
(5) Action-specific emission reductions (for actions within entity
boundaries). A number of source- or situation-specific methods are
provided in the Technical Guidelines and these methods must be used to
assess the annual changes in emissions for the specific sources or
situation addressed by these methods. In addition, a generic action-
specific method is identified in the Technical Guidelines. An entity
intending to register reductions may use the generic action-specific
approach only if it is not possible to measure accurately emission
changes by using one of the methods identified in paragraphs (h)(1)
through (h)(4) of this section. Entities that intend to register
reductions and that use the generic action-specific approach must
explain why it is not possible to use any of these other methods. An
entity not intending to register reductions may use the generic action-
specific method to determine emission reductions, as long as the entity
demonstrates that the estimate is based on analysis that:
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(i) Uses output, utilization and other factors that are consistent,
to the maximum extent practicable, with the action's actual performance
in the year for which reductions are being reported;
(ii) Excludes any emission reductions that might have resulted from
reduced output or were caused by actions likely to be associated with
increases in emissions elsewhere within the entity's operations; and
(iii) Uses methods that are in compliance with the Technical
Guidelines (incorporated by reference, see Sec. 300.13).
(i) Summary description of actions taken to reduce emissions. Each
reported emission reduction must be accompanied by an identification of
the types of actions that were the likely cause of the reductions
achieved. Entities are also encouraged to include in their reports
information on the benefits and costs of the actions taken to reduce
greenhouse gas emissions, such as the expected rates of return, life
cycle costs or benefit to cost ratios, using appropriate discount rates.
(j) Emission reductions associated with plant closings, voluntary
actions and government (including non-U.S. regulatory regimes)
requirements. (1) Each report of emission reductions must indicate
whether the reported emission reductions were the result, in whole or in
part, of plant closings, voluntary actions, or government requirements.
EIA will presume that reductions that were not the result of plant
closings or government requirements are the result of voluntary actions.
(2) If emission reductions were, in whole or in part, the direct
result of plant closings that caused a decline in output, the report
must identify the reductions as such; these reductions do not qualify
for registration. EIA will presume that reductions calculated using the
emissions intensity method do not result from a decline in output.
(3) If the reductions were associated, in whole or part, with U.S.
or non-U.S. government requirements, the report should identify the
government requirement involved and the effect these requirements had on
the reported emission reductions. If, as a result of the reduction, a
non-U.S. government issued to the reporting entity a credit or other
financial benefit or regulatory relief, the report should identify the
government requirement involved and describe the specific form of
benefit or relief provided.
(k) Determining the entity responsible for emission reductions. The
entity that EIA will presume to be responsible for emission reduction,
avoided emission or sequestered carbon is the entity with financial
control of the facility, land or vehicle which generated the reported
emissions, generated the energy that was sold so as to avoid other
emissions, or was the place where the sequestration action occurred. If
control is shared, reporting of the associated emission reductions
should be determined by agreement between the entities involved so as to
avoid double-counting; this agreement must be reflected in the entity
statement and in any report of emission reductions. EIA will presume
that an entity is not responsible for any emission reductions associated
with a facility, property or vehicle excluded from its entity statement.
Sec. 300.9 Reporting and recordkeeping requirements.
(a) Starting to report under the guidelines. An entity may report
emissions and sequestration on an annual basis beginning in any year,
but no earlier than the base period of 1987-1990 specified in the Energy
Policy Act of 1992. To be recognized under these guidelines, all reports
must conform to the measurement methods established by the Technical
Guidelines (incorporated by reference, see Sec. 300.13).
(b) Revisions to reports submitted under the guidelines. (1) Once
EIA has accepted a report under this part, it may be revised by the
reporting entity only under the circumstances specified in this
paragraph and related provisions of the Technical Guidelines
(incorporated by reference, see Sec. 300.13). In general:
(i) Revised reports may be submitted to correct errors that have a
significant effect on previously estimated emissions or emission
reductions; and
(ii) Emission inventories may be revised in order to create a
consistent time series based on improvements in
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the emission estimation or measurement techniques used.
(2) Reporting entities must provide the corrected or improved data
to EIA, together with an explanation of the significance of the change
and its justification.
(3) If a change in calculation methods (for inventories or
reductions) is made for a particular year, the reporting entity must, if
feasible, revise its base value to assure methodological consistency
with the reporting year value.
(c) Definition and deadline for annual reports. Entities must report
emissions on a calendar year basis, from January 1 to December 31. To be
included in the earliest possible EIA annual report of greenhouse gas
emissions reported under this part, entity reports that have not been
independently verified must be submitted to DOE no later than July 1 for
emissions occurring during the previous calendar year. Reports that have
been independently verified must be submitted by September 1 for
emissions occurring during the previous year.
(d) Recordkeeping. Entities intending to register reductions must
maintain adequate supporting records of base period data for the
duration of their participation in the 1605(b) program. Supporting
records for all reporting year data must be maintained for at least
three years subsequent to the relevant reporting year to enable
verification of all information reported. The records should document
the basis for the entity's report to EIA, including:
(1) The content of entity statements, including the identification
of the specific facilities, buildings, land holding and other operations
or emission sources covered by the entity's reports and the legal,
equity, operational and other bases for their inclusion;
(2) Information on the identification and assessment of changes in
entity boundaries, processes or products that might have to be reported
to EIA;
(3) Any agreements or relevant communications with other entities or
third parties regarding the reporting of emissions or emission
reductions associated with sources the ownership or operational control
of which is shared;
(4) Information on the methods used to measure or estimate
emissions, and the data collection and management systems used to gather
and prepare this data for inclusion in reports;
(5) Information on the methods used to calculate emission
reductions, including the basis for:
(i) The selection of the specific output measures used, and the data
collection and management systems used to gather and prepare output data
for use in the calculation of emission reductions;
(ii) The selection and modification of all base years, base periods
and baselines used in the calculation of emission reductions;
(iii) Any baseline adjustments made to reflect acquisitions,
divestitures or other changes;
(iv) Any models or other estimation methods used; and
(v) Any internal or independent verification procedures undertaken.
(e) Confidentiality. DOE will protect trade secret and commercial or
financial information that is privileged or confidential as provided in
5 U.S.C. 552(b)(4). An entity must clearly indicate in its 1605(b)
report the information for which it requests confidentiality. DOE will
handle requests for confidentiality of information submitted in 1605(b)
reports in accordance with the process established in DOE's Freedom of
Information regulations at 10 CFR Sec. 1004.11.
Sec. 300.10 Certification of reports.
(a) General requirement and certifying official: All reports
submitted to EIA must include a certification statement, as provided in
paragraph (b) of this section, signed by a certifying official of the
reporting entity. A household report may be certified by one of its
members. All other reports must be certified by the chief executive
officer, agency head, or an officer or employee of the entity who is
responsible for reporting the entity's compliance with environmental
regulations.
(b) Certification statement requirements. All entities, whether
reporting or registering reductions, must certify the following:
(1) The information reported is accurate and complete;
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(2) The information reported has been compiled in accordance with
this part; and
(3) The information reported is consistent with information
submitted in prior years, if any, or any inconsistencies with prior
year's information are documented and explained in the entity statement.
(c) Additional requirements for registering. The certification
statement of an entity registering reductions must also certify that:
(1) The entity took reasonable steps to ensure that direct
emissions, emission reductions, and/or sequestration reported are
neither double counted nor reported by any other entity. Reasonable
steps include telephone, fax, letter, or e-mail communications to ensure
that another entity does not intend to report the same emissions,
emission reductions, and/or sequestration to DOE. Direct communications
of this kind with participants in demand-side management or other
programs directed at very small emitters are not required;
(2) Any emission reductions reported or registered by the entity
that were achieved by another entity (other than a very small emitter
that participated in a demand-side management or other program) are
included in the entity's report only if:
(i) The other entity does not intend to report or register theses
reductions directly;
(ii) There exists a written agreement with each other entity
providing that the reporting entity is the entity entitled to report or
register these emission reductions; and
(iii) The information reported on the other entity would meet the
requirements of this part if the entity were reporting directly to DOE;
(3) None of the emissions, emission reductions, or sequestration
reported were produced by shifting emissions to other entities or to
non-reporting parts of the entity;
(4) None of any reported changes in avoided emissions associated
with the sale of electricity, steam, hot or chilled water generated from
non-emitting or low-emitting sources are attributable to the acquisition
of a generating facility that has been previously operated, unless the
entity's base period includes generation values from the acquiring
facility's operation prior to its acquisition;
(5) The entity maintains records documenting the analysis and
calculations underpinning the data reported on this form and records
documenting the analysis and calculations underpinning the base values
used in calculating annual reductions are maintained in accordance with
Sec. 300.9(d) of this part; and
(6) The entity has, or has not, obtained independent verification of
the report, as described in Sec. 300.11.
Sec. 300.11 Independent verification.
(a) General. Entities are encouraged to have their annual reports
reviewed by independent and qualified auditors, as described in
paragraphs (b), (c), and (f) of this section.
(b) Qualifications of verifiers. (1) DOE envisions that independent
verification will be performed by professional verifiers (i.e.,
individuals or companies that provide verification or ``attestation''
services). EIA will consider a report to the program to be independently
verified if:
(i) The lead individual verifier and other members of the
verification team are accredited by one or more independent and
nationally-recognized accreditation programs, described in paragraph (c)
of this section, for the types of professionals needed to determine
compliance with DOE's 1605(b) guidelines;
(ii) The lead verifier has experience managing an auditing or
verification process, including the recruitment and allocation of other
individual verifiers, and has been empowered to make decisions relevant
to the provision of a verification statement; and
(iii) All members of a verification team have education, training
and/or professional experience that matches the tasks performed by the
individual verifiers, as deemed necessary by the verifier accreditation
program.
(2) As further guidance, all members of the verification team should
be familiar with:
(i) The subject matter covered by the scope of the verification;
(ii) The requirements of this part;
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(iii) Greenhouse gas emission and emission reduction quantification;
(iv) Data and information auditing sampling methods; and
(v) Risk assessment and methodologies and materiality analysis
procedures outlined by other domestic and international standards.
(3) An individual verifier should have a professional degree or
accreditation in engineering (environmental, industrial, chemical),
accounting, economics, or a related field, supplemented by specific
training and/or experience in emissions reporting and accounting, and
should have his or her qualifications and continuing education
periodically reviewed by an accreditation program. The skills required
for verification are often cross-disciplinary. For example, an
individual verifier reviewing a coal electric utility should be
knowledgeable about mass balance calculations, fuel purchasing
accounting, flows and stocks of coals, coal-fired boiler operation, and
issues of entity definition.
(4) Companies that provide verification services must use
professionals that possess the necessary skills and proficiency levels
for the types of entities for which they provide verification services.
Continuing training may be required to ensure all individuals have up-
to-date knowledge regarding the tasks they perform.
(c) Qualifications of organizations accrediting verifiers.
Organizations that accredit individual verifiers must be nationally
recognized certification programs. They may include, but are not limited
to the: American Institute of Certified Public Accountants; American
National Standards Institute's Registrar Accreditation Board program for
Environmental Management System auditors (ANSI-RAB-EMS); Board of
Environmental, Health and Safety Auditor Certification: California
Climate Action Registry; Clean Development Mechanism Executive Board;
and the United Kingdom Accreditation Scheme.
(d) Scope of verification. (1) As part of any independent
verification, qualified verifiers must use their expertise and
professional judgment to verify for accuracy, completeness and
consistency with DOE's guidelines of:
(i) The content of entity statements, annual reports and the
supporting records maintained by the entity;
(ii) The representation in entity statements (or lack thereof) of
any significant changes in entity boundaries, products, or processes;
(iii) The procedures and methods used to collect emissions and
output data, and calculate emission reductions (for entities with widely
dispersed operations, this process should include on-site reviews of a
sample of the facilities);
(iv) Relevant personnel training and management systems; and
(v) Relevant quality assurance/quality control procedures.
(2) DOE expects qualified verifiers to refer to the growing body of
literature on methods of evaluating the elements listed in paragraph
(d)(1) of this section, such as the California Climate Action Registry
Certification Protocol, the Climate Leaders Inventory Management Plan
Checklist, and the draft ISO 14064.3 Protocol for Validation,
Verification and Certification.
(e) Verification statement. Both the verifier and, if relevant, an
officer of the company providing the verification service must sign the
verification statement. The verification statement shall attest to the
following:
(1) The verifier has examined all components listed in paragraph (d)
of this section;
(2) The information reported in the verified entity report and this
verification statement is accurate and complete;
(3) The information reported by the entity has been compiled in
accordance with this part;
(4) The information reported on the entity report is consistent with
information submitted in prior years, if any, or any inconsistencies
with prior year's information are documented and explained in the entity
statement;
(5) The verifier used due diligence to assure that direct emissions,
emission reductions, and/or sequestration reported are not reported by
any other entity;
(6) Any emissions, emission reductions, or sequestration that were
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achieved by a third-party entity are included in this report only if
there exists a written agreement with each third party indicating that
they have agreed that the reporting entity should be recognized as the
entity entitled to report these emissions, emission reductions, or
sequestration;
(7) None of the emissions, emission reductions, or sequestration
reported was produced by shifting emissions to other entities or to non-
reporting parts of the entity;
(8) No reported changes in avoided emissions associated with the
sale of electricity, steam, hot or chilled water generated from non-
emitting or low-emitting sources are attributable to the acquisition of
a generating facility that has been previously operated, unless the base
year generation values are derived from records of the facility's
operation prior to its acquisition;
(9) The verifying entity has procedures in place for the maintenance
of records that are sufficient to document the analysis and calculations
underpinning this verification. The verifying entity shall maintain such
records related to base period data submitted by the reporting entity
for the duration of the reporting entity's participation in the 1605(b)
program and records related to all other verified data for a period of
no less than three years; and
(10) The independent verifier is not owned in whole or part by the
reporting entity, nor provides any ongoing operational or support
services to the entity, except services consistent with independent
financial accounting or independent certification of compliance with
government or private standards.
(f) Qualifying as an independent verifier. An independent verifier
may not be owned in whole or part by the reporting entity, nor may it
provide any ongoing operational or support services to the entity,
except services consistent with independent financial accounting or
independent certification of compliance with government or private
standards.
Sec. 300.12 Acceptance of reports and registration of entity emission
reductions.
(a) Acceptance of reports. EIA will review all reports to ensure
they are consistent with this part and with the Technical Guidelines
(incorporated by reference, see Sec. 300.13). EIA will also review all
reports for completeness, internal consistency, arithmetic accuracy and
plausibility. Subject to the availability of adequate resources, EIA
intends to notify entities of the acceptance or rejection of any report
within six months of its receipt.
(b) Registration of emission reductions. EIA will review each
accepted report to determine if emission reductions were calculated
using an acceptable base period (usually ending no earlier than 2002),
and to confirm that the report complies with the other provisions of
this part. EIA will also review its records to verify that the reporting
entity has submitted accepted annual reports for each year between the
establishment of its base period and the year covered by the current
report. EIA will notify the entity that reductions meeting these
requirements have been credited to the entity as ``registered
reductions'' which can be held by the reporting entity for use
(including transfer to other entities) in the event a future program
that recognizes such reductions is enacted into law.
(c) Rejection of reports. If EIA does not accept a report or if it
determines that emission reductions intended for registration do not
qualify, EIA will return the report to the sender with an explanation of
its inadequacies. The reporting entity may resubmit a modified report
for further consideration at any time.
(d) EIA database and summary reports. The Administrator of EIA will
establish a publicly accessible database composed of all reports that
meet the definitional, measurement, calculation, and certification
requirements of these guidelines. EIA will maintain separate subtotals
of direct emissions, indirect emissions and carbon fluxes. A portion of
the database will provide summary information on the emissions and
registered emission reductions of each reporting entity.
[[Page 101]]
Sec. 300.13 Incorporation by reference.
The Technical Guidelines for the Voluntary Reporting of Greenhouse
Gases (1605(b)) Program (January 2007), referred to throughout this part
as the ``Technical Guidelines,'' have been approved for incorporation by
reference by the Director of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of the Technical
Guidelines from the Office of Policy and International Affairs, U.S.
Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585,
or by visiting the following Web site: http://www.policy.energy.gov/
enhancingGHGregistry/technicalguidelines/. The Technical Guidelines also
are available for inspection at the National Archives and Record
Administration (NARA). For more information on the availability of this
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/
federal--register/code--of--federal--regulations/ibr--locations.html.
[71 FR 20805, Apr. 21, 2006, as amended at 72 FR 4413, Jan. 31, 2007]
SUBCHAPTER C [RESERVED]
[[Page 102]]
SUBCHAPTER D_ENERGY CONSERVATION
PARTS 400-417 [RESERVED]
PART 420_STATE ENERGY PROGRAM--Table of Contents
Subpart A_General Provisions for State Energy Program Financial
Assistance
Sec.
420.1 Purpose and scope.
420.2 Definitions.
420.3 Administration of financial assistance.
420.4 Technical assistance.
420.5 Reports.
420.6 Reference standards.
Subpart B_Formula Grant Procedures
420.10 Purpose.
420.11 Allocation of funds among the States.
420.12 State matching contribution.
420.13 Annual State applications and amendments to State plans.
420.14 Review and approval of annual State applications and amendments
to State plans.
420.15 Minimum criteria for required program activities for plans.
420.16 Extensions for compliance with required program activities.
420.17 Optional elements of State Energy Program plans.
420.18 Expenditure prohibitions and limitations.
420.19 Administrative review.
Subpart C_Implementation of Special Projects Financial Assistance
420.30 Purpose and scope.
420.31 Notice of availability.
420.32 Program guidance/solicitation.
420.33 Application requirements.
420.34 Matching contributions or cost-sharing.
420.35 Application evaluation.
420.36 Evaluation criteria.
420.37 Selection.
420.38 Special projects expenditure prohibitions and limitations.
Authority: Title III, part D, as amended, of the Energy Policy and
Conservation Act (42 U.S.C. 6321 et seq.); Department of Energy
Organization Act (42 U.S.C. 7101 et seq.)
Source: 61 FR 35895, July 8, 1996, unless otherwise noted.
Editorial Note: Nomenclature changes to part 420 appear at 64 FR
46114, Aug. 24, 1999.
Subpart A_General Provisions for State Energy Program Financial
Assistance
Sec. 420.1 Purpose and scope.
It is the purpose of this part to promote the conservation of
energy, to reduce the rate of growth of energy demand, and to reduce
dependence on imported oil through the development and implementation of
a comprehensive State Energy Program and the provision of Federal
financial and technical assistance to States in support of such program.
Sec. 420.2 Definitions.
As used in this part:
Act means title III, part D, as amended, of the Energy Policy and
Conservation Act, 42 U.S.C. 6321 et seq.
Alternative transportation fuel means methanol, denatured ethanol,
and other alcohols; mixtures containing 85 percent or more by volume of
methanol, denatured ethanol, and other alcohols with gasoline or other
fuels; natural gas; liquified petroleum gas; hydrogen; coal-derived
liquid fuels; fuels (other than alcohol) derived from biological
materials (including neat biodiesel); and electricity (including
electricity from solar energy).
ASHRAE/IESNA 90.1-1989, as amended means the building design
standard published in December 1989 by the American Society of Heating,
Refrigerating and Air-Conditioning Engineers, and the Illuminating
Engineering Society of North America titled ``Energy Efficient Design of
New Buildings Except Low-Rise Residential Buildings,'' with Addenda
90.1b-1992; Addenda 90.1d-1992; Addenda 90.1e-1992; Addenda 90.1g-1993;
and Addenda 90.1i-1993, which is incorporated by reference in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. The availability of this
incorporation by reference is given in Sec. 420.6(b).
Assistant Secretary means the Assistant Secretary for Energy
Efficiency and Renewable Energy or any official to whom the Assistant
Secretary's
[[Page 103]]
functions may be redelegated by the Secretary.
British thermal unit (Btu) means the quantity of heat necessary to
raise the temperature of one pound of water one degree Fahrenheit at
39.2 degrees Fahrenheit and at one atmosphere of pressure.
Building means any structure which includes provision for a heating
or cooling system, or both, or for a hot water system.
Carpool means the sharing of a ride by two or more people in an
automobile.
Carpool matching and promotion campaign means a campaign to
coordinate riders with drivers to form carpools and/or vanpools.
Commercial building means any building other than a residential
building, including any building constructed for industrial or public
purposes.
Commercially available means available for purchase by the general
public or target audience in the State.
Deputy Assistant Secretary means the Deputy Assistant Secretary for
Building Technology, State and Community Programs or any official to
whom the Deputy Assistant Secretary's functions may be redelegated by
the Assistant Secretary.
Director, Office of State and Community Programs means the official
responsible for DOE's formula grant programs to States, or any official
to whom the Director's functions may be redelegated by the Assistant
Secretary.
DOE means the Department of Energy.
Energy audit means any process which identifies and specifies the
energy and cost savings which are likely to be realized through the
purchase and installation of particular energy efficiency measures or
renewable energy measures.
Energy efficiency measure means any capital investment that reduces
energy costs in an amount sufficient to recover the total cost of
purchasing and installing such measure over an appropriate period of
time and maintains or reduces non-renewable energy consumption.
Environmental residual means any pollutant or pollution causing
factor which results from any activity.
Exterior envelope physical characteristics means the physical nature
of those elements of a building which enclose conditioned spaces through
which thermal energy may be transferred to or from the exterior.
Governor means the chief executive officer of a State, the District
of Columbia, Puerto Rico, or any territory or possession of the United
States, or a person duly designated in writing by the Governor to act
upon his or her behalf.
Grantee means the State or other entity named in the notice of grant
award as the recipient.
HVAC means heating, ventilating and air-conditioning.
IBR means incorporation by reference.
Industrial facility means any fixed equipment or facility which is
used in connection with, or as part of, any process or system for
industrial production or output.
Institution of higher education has the same meaning as such term is
defined in section 1201(a) of the Higher Education Act of 1965 (20
U.S.C. 1141(a)).
Manufactured home means any dwelling covered by the Federal
Manufactured Home Construction and Safety Standards, 24 CFR part 3280.
Metropolitan Planning Organization means that organization required
by the Department of Transportation, and designated by the Governor as
being responsible for coordination within the State, to carry out
transportation planning provisions in a Standard Metropolitan
Statistical Area.
Model Energy Code, 1993, including Errata, means the model building
code published by the Council of American Building Officials, which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of this incorporation by reference is given in
Sec. 420.6(b).
Park-and-ride lot means a parking facility generally located at or
near the trip origin of carpools, vanpools and/or mass transit.
Petroleum violation escrow funds. For purposes both of exempting
petroleum violation escrow funds from the matching requirements of Sec.
420.12 and of applying the limitations specified under Sec. 420.18(b),
this term means any funds
[[Page 104]]
distributed to the States by the Department of Energy or any court and
identified as Alleged Crude Oil Violation funds, together with any
interest earned thereon by the States, but excludes any funds designated
as ``excess funds'' under section 3003(d) of the Petroleum Overcharge
Distribution and Restitution Act, subtitle A of title III of the Omnibus
Budget Reconciliation Act of 1986, Public Law 99-509, and the funds
distributed under the ``Warner Amendment,'' section 155 of Public Law
97-377.
Plan means a State Energy Program plan including required program
activities in accordance with Sec. 420.15 and otherwise meeting the
applicable provisions of this part.
Political subdivision means a unit of government within a State,
including a county, municipality, city, town, township, parish, village,
local public authority, school district, special district, council of
governments, or any other regional or intrastate governmental entity or
instrumentality of a local government exclusive of institutions of
higher learning and hospitals.
Preferential traffic control means any one of a variety of traffic
control techniques used to give carpools, vanpools and public
transportation vehicles priority treatment over single occupant vehicles
other than bicycles and other two-wheeled motorized vehicles.
Program activity means one or more State actions, in a particular
area, designed to promote energy efficiency, renewable energy and
alternative transportation fuel.
Public building means any building which is open to the public
during normal business hours, including:
(1) Any building which provides facilities or shelter for public
assembly, or which is used for educational office or institutional
purposes;
(2) Any inn, hotel, motel, sports arena, supermarket, transportation
terminal, retail store, restaurant, or other commercial establishment
which provides services or retail merchandise;
(3) Any general office space and any portion of an industrial
facility used primarily as office space;
(4) Any building owned by a State or political subdivision thereof,
including libraries, museums, schools, hospitals, auditoriums, sport
arenas, and university buildings; and
(5) Any public or private non-profit school or hospital.
Public transportation means any scheduled or nonscheduled
transportation service for public use.
Regional Office Director means the director of a DOE Regional Office
with responsibility for grants administration or any official to whom
that function may be redelegated.
Renewable energy means a non-depletable source of energy.
Renewable energy measure means any capital investment that reduces
energy costs in an amount sufficient to recover the total cost of
purchasing and installing such measure over an appropriate period of
time and that results in the use of renewable energy to replace the use
of non-renewable energy.
Residential building means any building which is constructed for
residential occupancy.
Secretary mean the Secretary of DOE.
SEP means the State Energy Program under this part.
Small business means a private firm that does not exceed the
numerical size standard promulgated by the Small Business Administration
under section 3(a) of the Small Business Act (15 U.S.C. 632) for the
Standard Industrial Classification (SIC) codes designated by the
Secretary of Energy.
Start-up business means a small business which has been in existence
for 5 years or less.
State means a State, the District of Columbia, Puerto Rico, or any
territory or possession of the United States.
State or local government building means any building owned and
primarily occupied by offices or agencies of a State; and any building
of a unit of local government or a public care institution which could
be covered by part H, title III, of the Energy Policy and Conservation
Act, 42 U.S.C. 6372-6372i.
Transit level of service means characteristics of transit service
provided which indicate its quantity, geographic area of coverage,
frequency and quality (comfort, travel, time, fare and image).
Urban area traffic restriction means a setting aside of certain
portions of an urban area as restricted zones where
[[Page 105]]
varying degrees of limitation are placed on general traffic usage and/or
parking.
Vanpool means a group of riders using a vehicle, with a seating
capacity of not less than eight individuals and not more than fifteen
individuals, for transportation to and from their residence or other
designated locations and their place of employment, provided the vehicle
is driven by one of the pool members.
Variable working schedule means a flexible working schedule to
facilitate activities such as carpools, vanpools, public transportation
usage, and/or telecommuting.
[61 FR 35895, July 8, 1996, as amended at 62 FR 26726, May 14, 1997]
Sec. 420.3 Administration of financial assistance.
(a) Financial assistance under this part shall comply with
applicable laws and regulations including, but without limitation, the
requirements of:
(1) Executive Order 12372, Intergovernmental Review of Federal
Programs, as implemented by 10 CFR part 1005.
(2) DOE Financial Assistance Rules (10 CFR part 600); and
(3) Other procedures which DOE may from time to time prescribe for
the administration of financial assistance under this part.
(b) The budget period(s) covered by the financial assistance
provided to a State according to Sec. 420.11(b) or Sec. 420.33 shall
be consistent with 10 CFR part 600.
(c) Subawards are authorized under this part and are subject to the
requirements of this part and 10 CFR part 600.
Sec. 420.4 Technical assistance.
At the request of the Governor of any State to DOE and subject to
the availability of personnel and funds, DOE will provide information
and technical assistance to the State in connection with effectuating
the purposes of this part.
Sec. 420.5 Reports.
(a) Each State receiving financial assistance under this part shall
submit to the cognizant Regional Office Director a quarterly program
performance report and a quarterly financial status report.
(b) Reports under this section shall contain such information as the
Secretary may prescribe in order to monitor effectively the
implementation of a State's activities under this part.
(c) The reports shall be submitted within 30 days following the end
of each calendar year quarter.
Sec. 420.6 Reference standards.
(a) The following standards which are not otherwise set forth in
this part are incorporated by reference and made a part of this part.
The following standards have been approved for incorporation by
reference by the Director of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. A notice of any change in these
materials will be published in the Federal Register. The standards
incorporated by reference are available for inspection at the National
Archives and Records Administration (NARA). For information on the
availability of this material at NARA, call 202-741-6030, or go to:
http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html.
(b) The following standards are incorporated by reference in this
part:
(1) The American Society of Heating, Refrigerating and Air-
Conditioning Engineers (ASHRAE), 1791 Tullie Circle, N.E., Atlanta,
Georgia 30329, (404) 636-8400/The Illuminating Engineering Society of
North America (IESNA), 345 East 47th Street, New York, New York 10017,
(212) 705-7913: (i) ASHRAE/IESNA 90.1-1989, entitled ``Energy Efficient
Design of New Buildings Except Low-Rise Residential Buildings,'' with
Addenda 90.1b-1992; Addenda 90.1d-1992; Addenda 90.1e-1992; Addenda
90.1g-1993; and Addenda 90.1i-1993, IBR approved for Sec. 420.2 and
Sec. 420.15.
(2) The Council of American Building Officials (CABO), 5203 Leesburg
Pike, Suite 708, Falls Church, Virginia 22041, (703) 931-4533: (i) The
Model Energy Code, 1993, including Errata, IBR approved for Sec. 420.2
and Sec. 420.15.
[61 FR 35895, July 8, 1996, as amended at 69 FR 18803, Apr. 9, 2004]
[[Page 106]]
Subpart B_Formula Grant Procedures
Sec. 420.10 Purpose.
This subpart specifies the procedures that apply to the Formula
Grant part of the State Energy Program, which allows States to apply for
financial assistance to undertake a wide range of required and optional
energy-related activities provided for under Sec. 420.15 and Sec.
420.17. Funding for these activities is allocated to the States based on
funds available for any fiscal year, as described under Sec. 420.11.
Sec. 420.11 Allocation of funds among the States.
(a) The cognizant Regional Office Director shall provide financial
assistance to each State having an approved annual application from
funds available for any fiscal year to develop, modify, or implement a
plan.
(b) DOE shall allocate financial assistance to develop, implement or
modify plans among the States from funds available for any fiscal year,
as follows:
(1) If the available funds equal $25.5 million, such funds shall be
allocated to the States according to Table 1 of this section.
(2) The base allocation for each State is listed in Table 1.
Table 1--Base Allocation by State
------------------------------------------------------------------------
State/Territory
------------------------------------------------------------------------
Alabama................................................. $381,000
Alaska.................................................. 180,000
Arizona................................................. 344,000
Arkansas................................................ 307,000
California.............................................. 1,602,000
Colorado................................................ 399,000
Connecticut............................................. 397,000
Delaware................................................ 164,000
District of Columbia.................................... 158,000
Florida................................................. 831,000
Georgia................................................. 534,000
Hawaii.................................................. 170,000
Idaho................................................... 190,000
Illinois................................................ 1,150,000
Indiana................................................. 631,000
Iowa.................................................... 373,000
Kansas.................................................. 327,000
Kentucky................................................ 411,000
Louisiana............................................... 446,000
Maine................................................... 231,000
Maryland................................................ 486,000
Massachusetts........................................... 617,000
Michigan................................................ 973,000
Minnesota............................................... 584,000
Mississippi............................................. 279,000
Missouri................................................ 518,000
Montana................................................. 182,000
Nebraska................................................ 246,000
Nevada.................................................. 196,000
New Hampshire........................................... 216,000
New Jersey.............................................. 783,000
New Mexico.............................................. 219,000
New York................................................ 1,633,000
North Carolina.......................................... 564,000
North Dakota............................................ 172,000
Ohio.................................................... 1,073,000
Oklahoma................................................ 352,000
Oregon.................................................. 325,000
Pennsylvania............................................ 1,090,000
Rhode Island............................................ 199,000
South Carolina.......................................... 340,000
South Dakota............................................ 168,000
Tennessee............................................... 476,000
Texas................................................... 1,322,000
Utah.................................................... 242,000
Vermont................................................. 172,000
Virginia................................................ 571,000
Washington.............................................. 438,000
West Virginia........................................... 286,000
Wisconsin............................................... 604,000
Wyoming................................................. 155,000
American Samoa.......................................... 115,000
Guam.................................................... 120,000
Northern Marianas....................................... 114,000
Puerto Rico............................................. 322,000
U.S. Virgin Islands..................................... 122,000
------------------------------------------------------------------------
Total............................................. 25,500,000
------------------------------------------------------------------------
(3) If the available funds for any fiscal year are less than $25.5
million, then the base allocation for each State shall be reduced
proportionally.
(4) If the available funds exceed $25.5 million, $25.5 million shall
be allocated as specified in Table 1 and any in excess of $25.5 million
shall be allocated as follows:
(i) One-third of the available funds is divided among the States
equally;
(ii) One-third of the available funds is divided on the basis of the
population of the participating States as contained in the most recent
reliable census data available from the Bureau of the Census, Department
of Commerce, for all participating States at the time DOE needs to
compute State formula shares; and
(iii) One-third of the available funds is divided on the basis of
the energy consumption of the participating States as contained in the
most recent State Energy Data Report available from DOE's Energy
Information Administration.
(c) The budget period covered by the financial assistance provided
to a State
[[Page 107]]
according to Sec. 420.11(b) shall be consistent with 10 CFR part 600.
Sec. 420.12 State matching contribution.
(a) Each State shall provide cash, in kind contributions, or both
for SEP activities in an amount totaling not less than 20 percent of the
financial assistance allocated to the State under Sec. 420.11(b).
(b) Cash and in-kind contributions used to meet this State matching
requirement are subject to the limitations on expenditures described in
Sec. 420.18(a), but are not subject to the 20 percent limitation in
Sec. 420.18(b).
(c) Nothing in this section shall be read to require a match for
petroleum violation escrow funds used under this subpart.
[61 FR 35895, July 8, 1996, as amended at 64 FR 46114, Aug. 24, 1999]
Sec. 420.13 Annual State applications and amendments to State plans.
(a) To be eligible for financial assistance under this subpart, a
State shall submit to the cognizant Regional Office Director an original
and two copies of the annual application executed by the Governor,
including an amended State plan or any amendments to the State plan
needed to reflect changes in the activities the State is planning to
undertake for the fiscal year concerned. The date for submission of the
annual State application shall be set by DOE.
(b) An application shall include:
(1) A face sheet containing basic identifying information, on
Standard Form (SF) 424;
(2) A description of the energy efficiency, renewable energy, and
alternative transportation fuel goals to be achieved, including wherever
practicable:
(i) An estimate of the energy to be saved by implementation of the
State plan;
(ii) Why the goals were selected;
(iii) How the attainment of the goals will be measured by the State;
and
(iv) How the program activities included in the State plan represent
a strategy to achieve these goals;
(3) With respect to financial assistance under this subpart, a goal,
consisting of an improvement of 25 percent or more in the efficiency of
use of energy in the State concerned in the calendar year 2012, as
compared to the calendar year 1990, and may contain interim goals;
(4) For the budget period for which financial assistance will be
provided:
(i) A total program budget with supporting justification, broken out
by object category and by source of funding;
(ii) The source and amount of State matching contribution;
(iii) A narrative statement detailing the nature of State plan
amendments and of new program activities.
(iv) For each program activity, a budget and listing of milestones;
and
(v) An explanation of how the minimum criteria for required program
activities prescribed in Sec. 420.15 have been implemented and are
being maintained.
(5) If any of the activities being undertaken by the State in its
plan have environmental impacts, a detailed description of the increase
or decrease in environmental residuals expected from implementation of a
plan defined insofar as possible through the use of information to be
provided by DOE and an indication of how these environmental factors
were considered in the selection of program activities.
(6) If a State is undertaking program activities involving purchase
or installation of materials or equipment for weatherization of low-
income housing, an explanation of how these activities would supplement
and not supplant the existing DOE program under 10 CFR part 440.
(7) A reasonable assurance to DOE that it has established policies
and procedures designed to assure that Federal financial assistance
under this subpart will be used to supplement, and not to supplant,
State and local funds, and to the extent practicable, to increase the
amount of such funds that otherwise would be available, in the absence
of such Federal financial assistance, for those activities set forth in
the State Energy Program plan approved pursuant to this subpart;
(8) An assurance that the State shall comply with all applicable
statutes and regulations in effect with respect to the periods for which
it receives grant funding; and
[[Page 108]]
(9) For informational purposes only, and not subject to DOE review,
an energy emergency plan for an energy supply disruption, as designed by
the State consistent with applicable Federal and State law including an
implementation strategy or strategies (including regional coordination)
for dealing with energy emergencies.
(c) The Governor may request an extension of the annual submission
date by submitting a written request to the cognizant Regional Office
Director not less than 15 days prior to the annual submission date. The
extension shall be granted only if, in the cognizant Regional Office
Director's judgment, acceptable and substantial justification is shown,
and the extension would further objectives of the Act.
(d) The Secretary, or a designee, shall, at least once every three
years from the submission date of each State plan, invite the Governor
of the State to review and, if necessary, revise the energy conservation
plan of such State. Such reviews should consider the energy conservation
plans of other States within the region, and identify opportunities and
actions that may be carried out in pursuit of common energy conservation
goals.
[61 FR 35895, July 8, 1996, as amended at 62 FR 26727, May 14, 1997; 64
FR 46114, Aug. 24, 1999; 71 FR 57887, Oct. 2, 2006]
Sec. 420.14 Review and approval of annual State applications and amendments
to State plans.
(a) After receipt of an application for financial assistance under
this subpart and for approval of an amendment, if any, to a State plan,
the cognizant Regional Office Director may request the State to submit
within a reasonable period of time any revisions necessary to make the
application complete and to bring the application into compliance with
the requirements of subparts A and B of this part. The cognizant
Regional Office Director shall attempt to resolve any dispute over the
application informally and to seek voluntary compliance. If a State
fails to submit timely appropriate revisions to complete an application
or to bring it into compliance, the cognizant Regional Office Director
may reject the application in a written decision, including a statement
of reasons, which shall be subject to administrative review under Sec.
420.19 of subparts A and B of this part.
(b) On or before 60 days from the date that a timely filed
application is complete, the cognizant Regional Office Director shall--
(1) Approve the application in whole or in part to the extent that--
(i) The application conforms to the requirements of subparts A and B
of this part;
(ii) The proposed program activities are consistent with a State's
achievement of its energy conservation goals in accordance with Sec.
420.13; and
(iii) The provisions of the application regarding program activities
satisfy the minimum requirements prescribed by Sec. 420.15 and Sec.
420.17 as applicable;
(2) Approve the application in whole or in part subject to special
conditions designed to ensure compliance with the requirements of
subparts A and B of this part; or
(3) Disapprove the application if it does not conform to the
requirements of subparts A and B of this part.
[61 FR 35895, July 8, 1996, as amended at 62 FR 26727, May 14, 1997; 64
FR 46114, Aug. 24, 1999]
Sec. 420.15 Minimum criteria for required program activities for plans.
A plan shall satisfy all of the following minimum criteria for
required program activities.
(a) Mandatory lighting efficiency standards for public buildings
shall:
(1) Be implemented throughout the State, except that the standards
shall be adopted by the State as a model code for those local
governments of the State for which the State's constitution reserves the
exclusive authority to adopt and implement building standards within
their jurisdictions;
(2) Apply to all public buildings (except for public buildings owned
or leased by the United States), above a certain size, as determined by
the State;
(3) For new public buildings, be no less stringent than the
provisions of ASHRAE/IESNA 90.1-1989, and should be updated by enactment
of, or support for the enactment into local codes or standards, which,
at a minimum, are comparable to provisions of ASHRAE/
[[Page 109]]
IESNA 90.1-1989 which is incorporated by reference in accordance with 5
U.S.C. 552 (a) and 1 CFR part 51. The availability of this incorporation
by reference is given in Sec. 420.6; and
(4) For existing public buildings, contain the elements deemed
appropriate by the State.
(b) Program activities to promote the availability and use of
carpools, vanpools, and public transportation shall:
(1) Have at least one of the following actions under implementation
in at least one urbanized area with a population of 50,000 or more
within the State or in the largest urbanized area within the State if
that State does not have an urbanized area with a population of 50,000
or more:
(i) A carpool/vanpool matching and promotion campaign;
(ii) Park-and-ride lots;
(iii) Preferential traffic control for carpoolers and public
transportation patrons;
(iv) Preferential parking for carpools and vanpools;
(v) Variable working schedules;
(vi) Improvement in transit level of service for public
transportation;
(vii) Exemption of carpools and vanpools from regulated carrier
status;
(viii) Parking taxes, parking fee regulations or surcharge on
parking costs;
(ix) Full-cost parking fees for State and/or local government
employees;
(x) Urban area traffic restrictions;
(xi) Geographical or time restrictions on automobile use; or
(xii) Area or facility tolls; and
(2) Be coordinated with the relevant Metropolitan Planning
Organization, unless no Metropolitan Planning Organization exists in the
urbanized area, and not be inconsistent with any applicable Federal
requirements.
(c) Mandatory standards and policies affecting the procurement
practices of the State and its political subdivisions to improve energy
efficiency shall--
(1) With respect to all State procurement and with respect to
procurement of political subdivisions to the extent determined feasible
by the State, be under implementation; and
(2) Contain the elements deemed appropriate by the State to improve
energy efficiency through the procurement practices of the State and its
political subdivisions.
(d) Mandatory thermal efficiency standards for new and renovated
buildings shall--
(1) Be implemented throughout the State, with respect to all
buildings (other than buildings owned or leased by the United States,
buildings whose peak design rate of energy usage for all purposes is
less than one watt (3.4 Btu's per hour) per square foot of floor space
for all purposes, or manufactured homes), except that the standards
shall be adopted by the State as a model code for those local
governments of the State for which the State's law reserves the
exclusive authority to adopt and implement building standards within
their jurisdictions;
(2) Take into account the exterior envelope physical
characteristics, HVAC system selection and configuration, HVAC equipment
performance and service water heating design and equipment selection;
(3) For all new commercial and multifamily high-rise buildings, be
no less stringent than provisions of sections 7-12 of ASHRAE/IESNA 90.1-
1989, and should be updated by enactment of, or support for the
enactment into local codes or standards, which, at a minimum, are
comparable to provisions of ASHRAE/IESNA 90.1-1989; and
(4) For all new single-family and multifamily low-rise residential
buildings, be no less stringent than the Model Energy Code, 1993, and
should be updated by enactment of, or support for the enactment into
local codes or standards, which, at a minimum, are comparable to the
Model Energy Code, 1993, which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The availability of
this incorporation by reference is given in Sec. 420.6;
(5) For renovated buildings:
(i) Apply to those buildings determined by the State to be renovated
buildings; and
(ii) Contain the elements deemed appropriate by the State regarding
thermal efficiency standards for renovated buildings.
(e) A traffic law or regulation which permits the operator of a
motor vehicle
[[Page 110]]
to make a turn at a red light after stopping shall:
(1) Be in a State's motor vehicle code and under implementation
throughout all political subdivisions of the State;
(2) Permit the operator of a motor vehicle to make a right turn
(left turn with respect to the Virgin Islands) at a red traffic light
after stopping except where specifically prohibited by a traffic sign
for reasons of safety or except where generally prohibited in an urban
enclave for reasons of safety; and
(3) Permit the operator of a motor vehicle to make a left turn from
a one-way street to a one-way street (right turn with respect to the
Virgin Islands) at a red traffic light after stopping except where
specifically prohibited by a traffic sign for reasons of safety or
except where generally prohibited in an urban enclave for reasons of
safety.
(f) Procedures must exist for ensuring effective coordination among
various local, State, and Federal energy efficiency, renewable energy
and alternative transportation fuel programs within the State, including
any program administered within the Office of Building Technology, State
and Community Programs of the Department of Energy and the Low Income
Home Energy Assistance Program administered by the Department of Health
and Human Services.
[61 FR 35895, July 8, 1996, as amended at 62 FR 26727, May 14, 1997]
Sec. 420.16 Extensions for compliance with required program activities.
An extension of time by which a required program activity must be
ready for implementation may be granted if DOE determines that the
extension is justified. A written request for an extension, with
accompanying justification and an action plan acceptable to DOE for
achieving compliance in the shortest reasonable time, shall be made to
the cognizant Regional Office Director. Any extension shall be only for
the shortest reasonable time that DOE determines necessary to achieve
compliance. The action plan shall contain a schedule for full compliance
and shall identify and make the most reasonable commitment possible to
provision of the resources necessary for achieving the scheduled
compliance.
Sec. 420.17 Optional elements of State Energy Program plans.
(a) Other appropriate activities or programs may be included in the
State plan. These activities may include, but are not limited to, the
following:
(1) Program activities of public education to promote energy
efficiency, renewable energy, and alternative transportation fuels;
(2) Program activities to increase transportation energy efficiency,
including programs to accelerate the use of alternative transportation
fuels for government vehicles, fleet vehicles, taxis, mass transit, and
privately owned vehicles;
(3) Program activities for financing energy efficiency measures and
renewable energy measures--
(i) Which may include loan programs and performance contracting
programs for leveraging of additional public and private sector funds
and program activities which allow rebates, grants, or other incentives
for the purchase of energy efficiency measures and renewable energy
measures; or
(ii) In addition to or in lieu of program activities described in
paragraph (a)(3)(i) of this section, which may be used in connection
with public or nonprofit buildings owned and operated by a State, a
political subdivision of a State or an agency or instrumentality of a
State, or an organization exempt from taxation under section 501(c)(3)
of the Internal Revenue Code of 1986 including public and private non-
profit schools and hospitals, and local government buildings;
(4) Program activities for encouraging and for carrying out energy
audits with respect to buildings and industrial facilities (including
industrial processes) within the State;
(5) Program activities to promote the adoption of integrated energy
plans which provide for:
(i) Periodic evaluation of a State's energy needs, available energy
resources (including greater energy efficiency), and energy costs; and
(ii) Utilization of adequate and reliable energy supplies, including
greater energy efficiency, that meet applicable safety, environmental,
and policy requirements at the lowest cost;
[[Page 111]]
(6) Program activities to promote energy efficiency in residential
housing, such as:
(i) Program activities for development and promotion of energy
efficiency rating systems for newly constructed housing and existing
housing so that consumers can compare the energy efficiency of different
housing; and
(ii) Program activities for the adoption of incentives for builders,
utilities, and mortgage lenders to build, service, or finance energy
efficient housing;
(7) Program activities to identify unfair or deceptive acts or
practices which relate to the implementation of energy efficiency
measures and renewable energy measures and to educate consumers
concerning such acts or practices;
(8) Program activities to modify patterns of energy consumption so
as to reduce peak demands for energy and improve the efficiency of
energy supply systems, including electricity supply systems;
(9) Program activities to promote energy efficiency as an integral
component of economic development planning conducted by State, local, or
other governmental entities or by energy utilities;
(10) Program activities (enlisting appropriate trade and
professional organizations in the development and financing of such
programs) to provide training and education (including, if appropriate,
training workshops, practice manuals, and testing for each area of
energy efficiency technology) to building designers and contractors
involved in building design and construction or in the sale,
installation, and maintenance of energy systems and equipment to promote
building energy efficiency;
(11) Program activities for the development of building retrofit
standards and regulations, including retrofit ordinances enforced at the
time of the sale of a building;
(12) Program activities to provide support for prefeasibility and
feasibility studies for projects that utilize renewable energy and
energy efficiency resource technologies in order to facilitate access to
capital and credit for such projects;
(13) Program activities to facilitate and encourage the voluntary
use of renewable energy technologies for eligible participants in
Federal agency programs, including the Rural Electrification
Administration and the Farmers Home Administration; and
(14) In accordance with paragraph (b) of this section, program
activities to implement the Energy Technology Commercialization Services
Program.
(b) This section prescribes requirements for establishing State-
level Energy Technology Commercialization Services Program as an
optional element of State plans.
(1) The program activities to implement the functions of the Energy
Technology Commercialization Services Program shall:
(i) Aid small and start-up businesses in discovering useful and
practical information relating to manufacturing and commercial
production techniques and costs associated with new energy technologies;
(ii) Encourage the application of such information in order to solve
energy technology product development and manufacturing problems;
(iii) Establish an Energy Technology Commercialization Services
Program affiliated with an existing entity in each State;
(iv) Coordinate engineers and manufacturers to aid small and start-
up businesses in solving specific technical problems and improving the
cost effectiveness of methods for manufacturing new energy technologies;
(v) Assist small and start-up businesses in preparing the technical
portions of proposals seeking financial assistance for new energy
technology commercialization; and
(vi) Facilitate contract research between university faculty and
students and small start-up businesses, in order to improve energy
technology product development and independent quality control testing.
(2) Each State Energy Technology Commercialization Services Program
shall develop and maintain a data base of engineering and scientific
experts in
[[Page 112]]
energy technologies and product commercialization interested in
participating in the service. Such data base shall, at a minimum,
include faculty of institutions of higher education, retired
manufacturing experts, and National Laboratory personnel.
(3) The services provided by the Energy Technology Commercialization
Services Program established under this subpart shall be available to
any small or start-up business. Such service programs shall charge fees
which are affordable to a party eligible for assistance, which shall be
determined by examining factors, including the following: the costs of
the services received; the need of the recipient for the services; and
the ability of the recipient to pay for the services.
[61 FR 35895, July 8, 1996, as amended at 62 FR 26727, May 14, 1997; 64
FR 46114, Aug. 24, 1999]
Sec. 420.18 Expenditure prohibitions and limitations.
(a) No financial assistance provided to a State under this subpart
shall be used:
(1) For construction, such as construction of mass transit systems
and exclusive bus lanes, or for construction or repair of buildings or
structures;
(2) To purchase land, a building or structure or any interest
therein;
(3) To subsidize fares for public transportation;
(4) To subsidize utility rate demonstrations or State tax credits
for energy conservation measures or renewable energy measures; or
(5) To conduct, or purchase equipment to conduct, research,
development or demonstration of energy efficiency or renewable energy
techniques and technologies not commercially available.
(b) No more than 20 percent of the financial assistance awarded to
the State for this program shall be used to purchase office supplies,
library materials, or other equipment whose purchase is not otherwise
prohibited by this section. Nothing in this paragraph shall be read to
apply this 20 percent limitation to petroleum violation escrow funds
used under this subpart.
(c) Demonstrations of commercially available energy efficiency or
renewable energy techniques and technologies are permitted, and are not
subject to the prohibitions of Sec. 420.18(a)(1), or to the limitation
on equipment purchases of Sec. 420.18(b).
(d) A State may use regular or revolving loan mechanisms to fund SEP
services which are consistent with this subpart and which are included
in the State's approved SEP plan. The State may use loan repayments and
any interest on the loan funds only for activities which are consistent
with this subpart and which are included in the State's approved SEP
plan.
(e) A State may use funds under this subpart for the purchase and
installation of equipment and materials for energy efficiency measures
and renewable energy measures, including reasonable design costs,
subject to the following terms and conditions:
(1) Such use must be included in the State's approved plan and, if
funded by petroleum violation escrow funds, must be consistent with any
judicial or administrative terms and conditions imposed upon State use
of such funds;
(2) A State may use for these purposes no more than 50 percent of
all funds allocated by the State to SEP in a given year, regardless of
source, except that this limitation shall not include regular and
revolving loan programs funded with petroleum violation escrow funds,
and is subject to waiver by DOE for good cause. Loan documents shall
ensure repayment of principal and interest within a reasonable period of
time, and shall not include provisions of loan forgiveness.
(3) Buildings owned or leased by the United States are not eligible
for energy efficiency measures or renewable energy measures under
paragraph (e) of this section;
(4) Funds must be used to supplement and no funds may be used to
supplant weatherization activities under the Weatherization Assistance
Program for Low-Income Persons, under 10 CFR part 440;
(5) Subject to paragraph (f) of this section, a State may use a
variety of financial incentives to fund purchases and installation of
materials and equipment under paragraph (e) of this section including,
but not limited to, regular loans, revolving loans, loan
[[Page 113]]
buy-downs, performance contracting, rebates and grants.
(f) The following mechanisms are not allowed for funding the
purchase and installation of materials and equipment under paragraph (e)
of this section:
(1) Rebates for more than 50 percent of the total cost of purchasing
and installing materials and equipment (States shall set appropriate
restrictions and limits to insure the most efficient use of rebates);
and
(2) Loan guarantees.
[61 FR 35895, July 8, 1996, as amended at 62 FR 26727, May 14, 1997; 64
FR 46114, Aug. 24, 1999]
Sec. 420.19 Administrative review.
(a) A State shall have 20 days from the date of receipt of a
decision under Sec. 420.14 to file a notice requesting administrative
review in accordance with paragraph (b) of this section. If an applicant
does not timely file such a notice, the decision under Sec. 420.14
shall become final for DOE.
(b) A notice requesting administrative review shall be filed with
the cognizant Regional Office Director and shall be accompanied by a
written statement containing supporting arguments. If the cognizant
Regional Office Director has disapproved an entire application for
financial assistance, the State may request a public hearing.
(c) A notice or any other document shall be deemed filed under this
section upon receipt.
(d) On or before 15 days from receipt of a notice requesting
administrative review which is timely filed, the cognizant Regional
Office Director shall forward to the Deputy Assistant Secretary, the
notice requesting administrative review, the decision under Sec. 420.14
as to which administrative review is sought, a draft recommended final
decision for concurrence, and any other relevant material.
(e) If the State requests a public hearing on the disapproval of an
entire application for financial assistance under this subpart, the
Deputy Assistant Secretary, within 15 days, shall give actual notice to
the State and Federal Register notice of the date, place, time, and
procedures which shall apply to the public hearing. Any public hearing
under this section shall be informal and legislative in nature.
(f) On or before 45 days from receipt of documents under paragraph
(d) of this section or the conclusion of the public hearing, whichever
is later, the Deputy Assistant Secretary shall concur in, concur in as
modified, or issue a substitute for the recommended decision of the
cognizant Regional Office Director.
(g) On or before 15 days from the date of receipt of the
determination under paragraph (f) of this section, the Governor may file
an application for discretionary review by the Assistant Secretary. On
or before 15 days from filing, the Assistant Secretary shall send a
notice to the Governor stating whether the Deputy Assistant Secretary's
determination will be reviewed. If the Assistant Secretary grants a
review, a decision shall be issued no later than 60 days from the date
review is granted. The Assistant Secretary may not issue a notice or
decision under this paragraph without the concurrence of the DOE Office
of General Counsel.
(h) A decision under paragraph (f) of this section shall be final
for DOE if there is no review under paragraph (g) of this section. If
there is review under paragraph (g) of this section, the decision
thereunder shall be final for DOE and no appeal shall lie elsewhere in
DOE.
(i) Prior to the effective date of the termination or suspension of
a grant award for failure to implement an approved State plan in
compliance with the requirements of this subpart, a grantee shall have
the right to written notice of the basis for the enforcement action and
of the opportunity for public hearing before the DOE Financial
Assistance Appeals Board notwithstanding any provisions to the contrary
of 10 CFR 600.22, 600.24, 600.25, and 600.243. To obtain a public
hearing, the grantee must request an evidentiary hearing, with prior
Federal Register notice, in the election letter submitted under Rule 2
of 10 CFR 1024.4 and the request shall be granted notwithstanding any
provisions to the contrary of Rule 2.
[61 FR 35895, July 8, 1996, as amended at 64 FR 46114, Aug. 24, 1999]
[[Page 114]]