section_id,title_number,title_name,chapter,subchapter,part_number,part_name,subpart,subpart_name,section_number,section_heading,agency,authority,source_citation,amendment_citations,full_text
10:10:3.0.1.1.10.1.9.1,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,A,Subpart A—General,,§ 217.1 Purpose of this part.,DOE,,,,"This part provides guidance and procedures for use of the Defense Production Act section 101(a) priorities and allocations authority with respect to all forms of energy necessary or appropriate to promote the national defense. (The guidance and procedures in this part are consistent with the guidance and procedures provided in other regulations that, as a whole, form the Federal Priorities and Allocations System. Guidance and procedures for use of the Defense Production Act priorities and allocations authority with respect to other types of resources are provided for: Food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer; health resources; all forms of civil transportation (49 CFR Part 33); water resources; and all other materials, services, and facilities, including construction materials in the Defense Priorities and Allocations System (DPAS) regulation (15 CFR Part 700).) Department of Energy (DOE) regulations at 10 CFR Part 216 describe and establish the procedures to be used by DOE in considering and making certain findings required by section 101(c)(2)(A) of the Defense Production Act of 1950, as amended."
10:10:3.0.1.1.10.1.9.2,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,A,Subpart A—General,,§ 217.2 Priorities and allocations authority.,DOE,,,,"(a) Section 201 of E.O. 12919 (59 FR 29525) delegates the President's authority under section 101 of the Defense Production Act to require acceptance and priority performance of contracts and orders (other than contracts of employment) to promote the national defense over performance of any other contracts or orders, and to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense to:

(1) The Secretary of Agriculture with respect to food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer;

(2) The Secretary of Energy with respect to all forms of energy;

(3) The Secretary of Health and Human Services with respect to health resources;

(4) The Secretary of Transportation with respect to all forms of civil transportation;

(5) The Secretary of Defense with respect to water resources; and

(6) The Secretary of Commerce for all other materials, services, and facilities, including construction materials.

(b) Section 202 of E.O. 12919 states that the priorities and allocations authority delegated in section 201 of this order may be used only to support programs that have been determined in writing as necessary or appropriate to promote the national defense:

(1) By the Secretary of Defense with respect to military production and construction, military assistance to foreign nations, stockpiling, outer space, and directly related activities;

(2) By the Secretary of Energy with respect to energy production and construction, distribution and use, and directly related activities; and

(3) By the Secretary of Homeland Security with respect to essential civilian needs supporting national defense, including civil defense and continuity of government and directly related activities."
10:10:3.0.1.1.10.1.9.3,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,A,Subpart A—General,,§ 217.3 Program eligibility.,DOE,,,,"Certain programs to promote the national defense are eligible for priorities and allocations support. These include programs for military and energy production or construction, military or critical infrastructure assistance to any foreign nation, deploying and sustaining military forces, homeland security, stockpiling, space, and any directly related activity. Other eligible programs include 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 critical infrastructure protection and restoration."
10:10:3.0.1.1.10.2.9.1,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,B,Subpart B—Definitions,,§ 217.20 Definitions.,DOE,,,,"The following definitions pertain to all sections of this part:

Allocation order  means an official action to control the distribution of materials, services, or facilities for a purpose deemed necessary or appropriate to promote the national defense.

Allotment  means an official action that specifies the maximum quantity or use of a material, service, or facility authorized for a specific use to promote the national defense.

Approved program  means a program determined by the Secretary of Defense, the Secretary of Energy, or the Secretary of Homeland Security to be necessary or appropriate to promote the national defense, in accordance with section 202 of E.O. 12919.

Civil transportation  includes movement of persons and property by all modes of transportation in interstate, intrastate, or foreign commerce within the United States, its territories and possessions, and the District of Columbia, and, without limitation, related public storage and warehousing, ports, services, equipment and facilities, such as transportation carrier shop and repair facilities. However, “civil transportation” shall not include transportation owned or controlled by the Department of Defense, use of petroleum and gas pipelines, and coal slurry pipelines used only to supply energy production facilities directly. As applied herein, “civil transportation” shall include direction, control, and coordination of civil transportation capacity regardless of ownership.

Construction  means the erection, addition, extension, or alteration of any building, structure, or project, using materials or products which are to be an integral and permanent part of the building, structure, or project. Construction does not include maintenance and repair.

Critical infrastructure  means any systems and assets, whether physical or cyber-based, so vital to the United States that the degradation or destruction of such systems and assets would have a debilitating impact on national security, including, but not limited to, national economic security and national public health or safety.

Defense Production Act  means the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061  et seq. ).

Delegate Agency  means a Federal government agency authorized by delegation from the Department of Energy to place priority ratings on contracts or orders needed to support approved programs.

Directive  means an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions.

Emergency preparedness  means all those activities and measures designed or undertaken to prepare for or minimize the effects of a hazard upon the civilian population, to deal with the immediate emergency conditions which would be created by the hazard, and to effectuate emergency repairs to, or the emergency restoration of, vital utilities and facilities destroyed or damaged by the hazard. Such term includes the following:

(1) Measures to be undertaken in preparation for anticipated hazards (including the establishment of appropriate organizations, operational plans, and supporting agreements, the recruitment and training of personnel, the conduct of research, the procurement and stockpiling of necessary materials and supplies, the provision of suitable warning systems, the construction or preparation of shelters, shelter areas, and control centers, and, when appropriate, the nonmilitary evacuation of the civilian population).

(2) Measures to be undertaken during a hazard (including the enforcement of passive defense regulations prescribed by duly established military or civil authorities, the evacuation of personnel to shelter areas, the control of traffic and panic, and the control and use of lighting and civil communications).

(3) Measures to be undertaken following a hazard (including activities for fire fighting, rescue, emergency medical, health and sanitation services, monitoring for specific dangers of special weapons, unexploded bomb reconnaissance, essential debris clearance, emergency welfare measures, and immediately essential emergency repair or restoration of damaged vital facilities).

Energy  means all forms of energy including petroleum, gas (both natural and manufactured), electricity, solid fuels (including all forms of coal, coke, coal chemicals, coal liquification, and coal gasification), and atomic energy, and the production, conservation, use, control, and distribution (including pipelines) of all of these forms of energy.

Facilities  includes 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.

Farm equipment  means equipment, machinery, and repair parts manufactured for use on farms in connection with the production or preparation for market use of food resources.

Fertilizer  means any product or combination of products that contain one or more of the elements—nitrogen, phosphorus, and potassium—for use as a plant nutrient.

Food resources  means all commodities and products, simple, mixed, or compound, or complements to such commodities or products, that are capable of being ingested by either human beings or animals, irrespective of other uses to which such commodities or products may be put, at all stages of processing from the raw commodity to the products thereof in vendible form for human or animal consumption. “Food resources” also means all starches, sugars, vegetable and animal or marine fats and oils, cotton, tobacco, wool, mohair, hemp, flax fiber, and naval stores, but does not mean any such material after it loses its identity as an agricultural commodity or agricultural product.

Food resource facilities  means plants, machinery, vehicles (including on-farm), and other facilities required for the production, processing, distribution, and storage (including cold storage) of food resources, livestock and poultry feed and seed, and for the domestic distribution of farm equipment and fertilizer (excluding transportation thereof).

Hazard  means an emergency or disaster resulting from:

(1) A natural disaster; or

(2) An accidental or human-caused event.

Health resources  means drugs, biological products, medical devices, diagnostics, materials, facilities, health supplies, services and equipment required to diagnose, prevent the impairment of, improve, or restore the physical or mental health conditions of the population.

Homeland security  includes efforts—

(1) To prevent terrorist attacks within the United States;

(2) To reduce the vulnerability of the United States to terrorism;

(3) To minimize damage from a terrorist attack in the United States; and

(4) To recover from a terrorist attack in the United States.

Industrial resources  means all materials, services, and facilities, including construction materials, but not including: food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer; all forms of energy; health resources; all forms of civil transportation; and water resources.

Item  means any raw, in process, or manufactured material, article, commodity, supply, equipment, component, accessory, part, assembly, or product of any kind, technical information, process, or service.

Maintenance and repair and operating supplies  or  MRO —

(1) “Maintenance” is the upkeep necessary to continue any plant, facility, or equipment in working condition.

(2) “Repair” is the restoration of any plant, facility, or equipment to working condition when it has been rendered unsafe or unfit for service by wear and tear, damage, or failure of parts.

(3) “Operating supplies” are any resources carried as operating supplies according to a person's established accounting practice. Operating supplies may include hand tools and expendable tools, jigs, dies, fixtures used on production equipment, lubricants, cleaners, chemicals and other expendable items.

(4) MRO does not include items produced or obtained for sale to other persons or for installation upon or attachment to the property of another person, or items required for the production of such items; items needed for the replacement of any plant, facility, or equipment; or items for the improvement of any plant, facility, or equipment by replacing items which are still in working condition with items of a new or different kind, quality, or design.

Materials  includes—

(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 any such materials, commodities, articles, components, products, or items.

(3) Natural resources such as oil and gas.

National defense  means programs for military and energy production or construction, military or critical infrastructure assistance to any foreign nation, homeland security, stockpiling, space, and any directly related activity. Such term 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 critical infrastructure protection and restoration.

Official action  means an action taken by the Department of Energy or another resource agency under the authority of the Defense Production Act, E.O. 12919, and this part or another regulation under the Federal Priorities and Allocations System. Such actions include the issuance of Rating Authorizations, Directives, Set Asides, Allotments, Letters of Understanding, Memoranda of Understanding, Demands for Information, Inspection Authorizations, and Administrative Subpoenas.

Person  includes 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.

Rated order  means a prime contract, a subcontract, or a purchase order in support of an approved program issued in accordance with the provisions of this part.

Resource agency  means any agency delegated priorities and allocations authority as specified in § 217.2.

Secretary  means the Secretary of Energy.

Services  includes any effort that is needed for or incidental to—

(1) The development, production, processing, distribution, delivery, or use of an industrial resource or a critical technology item;

(2) The construction of facilities;

(3) The movement of individuals and property by all modes of civil transportation; or

(4) Other national defense programs and activities.

Set-aside  means an official action that requires a person to reserve materials, services, or facilities capacity in anticipation of the receipt of rated orders.

Stafford Act  means title VI (Emergency Preparedness) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5195-5197g).

Water resources  means all usable water, from all sources, within the jurisdiction of the United States, which can be managed, controlled, and allocated to meet emergency requirements."
10:10:3.0.1.1.10.3.9.1,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,C,Subpart C—Placement of Rated Orders,,§ 217.30 Delegations of authority.,DOE,,,,"(a) The priorities and allocations authorities of the President under Title I of the Defense Production Act with respect to all forms of energy have been delegated to the Secretary of Energy under E.O. 12919 of June 3, 1994 (59 FR 29525).

(b) The Department of Commerce has delegated authority to the Department of Energy to provide for extension of priority ratings for “industrial resources,” as provided in § 261.35 of this part, to support rated orders for all forms of energy."
10:10:3.0.1.1.10.3.9.2,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,C,Subpart C—Placement of Rated Orders,,§ 217.31 Priority ratings.,DOE,,,,"(a) Levels of priority.

(1) There are two levels of priority established by the Energy Priorities and Allocations System regulations, identified by the rating symbols “DO” and “DX”.

(2) All DO-rated orders have equal priority with each other and take precedence over unrated orders. All DX-rated orders have equal priority with each other and take precedence over DO-rated orders and unrated orders. (For resolution of conflicts among rated orders of equal priority, see § 217.34(c).)

(3) In addition, a Directive regarding priority treatment for a given item issued by the Department of Energy for that item takes precedence over any DX-rated order, DO-rated order, or unrated order, as stipulated in the Directive. (For a full discussion of Directives, see § 217.62.)

(b) Program identification symbols. Program identification symbols indicate which approved program is being supported by a rated order. The list of currently approved programs and their identification symbols are listed in Schedule 1, set forth as an appendix to 15 CFR part 700. For example, DO-F3 identifies a domestic energy construction program. Additional programs may be approved under the procedures of E.O. 12919 at any time. Program identification symbols do not connote any priority.

(c) Priority ratings. A priority rating consists of the rating symbol—DO or DX—and the program identification symbol, such as F1, F2, or F3. Thus, a contract for a domestic energy construction program will contain a DO-F3 or DX-F3 priority rating."
10:10:3.0.1.1.10.3.9.3,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,C,Subpart C—Placement of Rated Orders,,§ 217.32 Elements of a rated order.,DOE,,,,"Each rated order must include:

(a) The appropriate priority rating ( e.g.  DO-F1 or DX-F1)

(b) A required delivery date or dates. The words “immediately” or “as soon as possible” do not constitute a delivery date. A “requirements contract”, “basic ordering agreement”, “prime vendor contract”, or similar procurement document bearing a priority rating may contain no specific delivery date or dates and may provide for the furnishing of items or service from time to time or within a stated period against specific purchase orders, such as “calls”, “requisitions”, and “delivery orders”. These purchase orders must specify a required delivery date or dates and are to be considered as rated as of the date of their receipt by the supplier and not as of the date of the original procurement document;

(c) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of an individual authorized to sign rated orders for the person placing the order. The signature or use of the name certifies that the rated order is authorized under this part and that the requirements of this part are being followed; and

(d)(1) A statement that reads in substance:

This is a rated order certified for national defense use, and you are required to follow all the provisions of the Energy Priorities and Allocations System regulation at 10 CFR part 217.

(2) If the rated order is placed in support of emergency preparedness requirements and expedited action is necessary and appropriate to meet these requirements, the following sentences should be added following the statement set forth in paragraph (d)(1) of this section:

This rated order is placed for the purpose of emergency preparedness. It must be accepted or rejected within 2 days after receipt of the order if (1) The order is issued in response to a hazard that has occurred; or

(2) If the order is issued to prepare for an imminent hazard, as specified in EPAS Section 217.33(e), 10 CFR 217.33(e)."
10:10:3.0.1.1.10.3.9.4,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,C,Subpart C—Placement of Rated Orders,,§ 217.33 Acceptance and rejection of rated orders.,DOE,,,,"(a)  Mandatory acceptance.  (1) Except as otherwise specified in this section, a person shall accept every rated order received and must fill such orders regardless of any other rated or unrated orders that have been accepted.

(2) A person shall not discriminate against rated orders in any manner such as by charging higher prices or by imposing different terms and conditions than for comparable unrated orders.

(b)  Mandatory rejection.  Unless otherwise directed by the Department of Energy for a rated order involving all forms of energy:

(1) A person shall not accept a rated order for delivery on a specific date if unable to fill the order by that date. However, the person must inform the customer of the earliest date on which delivery can be made and offer to accept the order on the basis of that date. Scheduling conflicts with previously accepted lower rated or unrated orders are not sufficient reason for rejection under this section.

(2) A person shall not accept a DO-rated order for delivery on a date which would interfere with delivery of any previously accepted DO- or DX-rated orders. However, the person must offer to accept the order based on the earliest delivery date otherwise possible.

(3) A person shall not accept a DX-rated order for delivery on a date which would interfere with delivery of any previously accepted DX-rated orders, but must offer to accept the order based on the earliest delivery date otherwise possible.

(4) If a person is unable to fill all of the rated orders of equal priority status received on the same day, the person must accept, based upon the earliest delivery dates, only those orders which can be filled, and reject the other orders. For example, a person must accept order A requiring delivery on December 15 before accepting order B requiring delivery on December 31. However, the person must offer to accept the rejected orders based on the earliest delivery dates otherwise possible.

(c)  Optional rejection.  Unless otherwise directed by the Department of Energy for a rated order involving all forms of energy, rated orders may be rejected in any of the following cases as long as a supplier does not discriminate among customers:

(1) If the person placing the order is unwilling or unable to meet regularly established terms of sale or payment;

(2) If the order is for an item not supplied or for a service not capable of being performed;

(3) If the order is for an item or service produced, acquired, or provided only for the supplier's own use for which no orders have been filled for two years prior to the date of receipt of the rated order. If, however, a supplier has sold some of these items or provided similar services, the supplier is obligated to accept rated orders up to that quantity or portion of production or service, whichever is greater, sold or provided within the past two years;

(4) If the person placing the rated order, other than the U.S. Government, makes the item or performs the service being ordered;

(5) If acceptance of a rated order or performance against a rated order would violate any other regulation, official action, or order of the Department of Energy, issued under the authority of the Defense Production Act or another relevant statute.

(d)  Customer notification requirements.  (1) Except as provided in this paragraph, a person must accept or reject a rated order in writing or electronically within fifteen (15) working days after receipt of a DO rated order and within ten (10) working days after receipt of a DX rated order. If the order is rejected, the person must give reasons in writing or electronically for the rejection.

(2) If a person has accepted a rated order and subsequently finds that shipment or performance will be delayed, the person must notify the customer immediately, give the reasons for the delay, and advise of a new shipment or performance date. If notification is given verbally, written or electronic confirmation must be provided within five (5) working days.

(e)  Exception for emergency preparedness conditions.  If the rated order is placed for the purpose of emergency preparedness, a person must accept or reject a rated order and transmit the acceptance or rejection in writing or in an electronic format within 2 days after receipt of the order if:

(1) The order is issued in response to a hazard that has occurred; or

(2) The order is issued to prepare for an imminent hazard."
10:10:3.0.1.1.10.3.9.5,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,C,Subpart C—Placement of Rated Orders,,§ 217.34 Preferential scheduling.,DOE,,,,"(a) A person must schedule operations, including the acquisition of all needed production items or services, in a timely manner to satisfy the delivery requirements of each rated order. Modifying production or delivery schedules is necessary only when required delivery dates for rated orders cannot otherwise be met.

(b) DO-rated orders must be given production preference over unrated orders, if necessary to meet required delivery dates, even if this requires the diversion of items being processed or ready for delivery or services being performed against unrated orders. Similarly, DX-rated orders must be given preference over DO-rated orders and unrated orders. (Examples: If a person receives a DO-rated order with a delivery date of June 3 and if meeting that date would mean delaying production or delivery of an item for an unrated order, the unrated order must be delayed. If a DX-rated order is received calling for delivery on July 15 and a person has a DO-rated order requiring delivery on June 2 and operations can be scheduled to meet both deliveries, there is no need to alter production schedules to give any additional preference to the DX-rated order.)

(c) Conflicting rated orders.

(1) If a person finds that delivery or performance against any accepted rated orders conflicts with the delivery or performance against other accepted rated orders of equal priority status, the person shall give precedence to the conflicting orders in the sequence in which they are to be delivered or performed (not to the receipt dates). If the conflicting orders are scheduled to be delivered or performed on the same day, the person shall give precedence to those orders that have the earliest receipt dates.

(2) If a person is unable to resolve rated order delivery or performance conflicts under this section, the person should promptly seek special priorities assistance as provided in §§ 217.40 through 217.44. If the person's customer objects to the rescheduling of delivery or performance of a rated order, the customer should promptly seek special priorities assistance as provided in §§ 217.40 through 217.44. For any rated order against which delivery or performance will be delayed, the person must notify the customer as provided in § 217.33.

(d) If a person is unable to purchase needed production items in time to fill a rated order by its required delivery date, the person must fill the rated order by using inventoried production items. A person who uses inventoried items to fill a rated order may replace those items with the use of a rated order as provided in § 217.37(b)."
10:10:3.0.1.1.10.3.9.6,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,C,Subpart C—Placement of Rated Orders,,§ 217.35 Extension of priority ratings.,DOE,,,,"(a) A person must use rated orders with suppliers to obtain items or services needed to fill a rated order. The person must use the priority rating indicated on the customer's rated order, except as otherwise provided in this part or as directed by the Department of Energy. For example, if a person is in receipt of a DO-F1 rated order for an electric power sub-station, and needs to purchase a transformer for its manufacture, that person must use a DO-F1 rated order to obtain the needed transformer.

(b) The priority rating must be included on each successive order placed to obtain items or services needed to fill a customer's rated order. This continues from contractor to subcontractor to supplier throughout the entire procurement chain."
10:10:3.0.1.1.10.3.9.7,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,C,Subpart C—Placement of Rated Orders,,§ 217.36 Changes or cancellations of priority ratings and rated orders.,DOE,,,,"(a) The priority rating on a rated order may be changed or canceled by:

(1) An official action of the Department of Energy; or

(2) Written notification from the person who placed the rated order.

(b) If an unrated order is amended so as to make it a rated order, or a DO rating is changed to a DX rating, the supplier must give the appropriate preferential treatment to the order as of the date the change is received by the supplier.

(c) An amendment to a rated order that significantly alters a supplier's original production or delivery schedule shall constitute a new rated order as of the date of its receipt. The supplier must accept or reject the amended order according to the provisions of § 217.33.

(d) The following amendments do not constitute a new rated order: a change in shipping destination; a reduction in the total amount of the order; an increase in the total amount of the order which has negligible impact upon deliveries; a minor variation in size or design; or a change which is agreed upon between the supplier and the customer.

(e) If a person no longer needs items or services to fill a rated order, any rated orders placed with suppliers for the items or services, or the priority rating on those orders, must be canceled.

(f) When a priority rating is added to an unrated order, or is changed or canceled, all suppliers must be promptly notified in writing."
10:10:3.0.1.1.10.3.9.8,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,C,Subpart C—Placement of Rated Orders,,§ 217.37 Use of rated orders.,DOE,,,,"(a) A person must use rated orders to obtain:

(1) Items which will be physically incorporated into other items to fill rated orders, including that portion of such items normally consumed or converted into scrap or by-products in the course of processing;

(2) Containers or other packaging materials required to make delivery of the finished items against rated orders;

(3) Services, other than contracts of employment, needed to fill rated orders; and

(4) MRO needed to produce the finished items to fill rated orders.

(b) A person may use a rated order to replace inventoried items (including finished items) if such items were used to fill rated orders, as follows:

(1) The order must be placed within 90 days of the date of use of the inventory.

(2) A DO rating and the program identification symbol indicated on the customer's rated order must be used on the order. A DX rating may not be used even if the inventory was used to fill a DX-rated order.

(3) If the priority ratings on rated orders from one customer or several customers contain different program identification symbols, the rated orders may be combined. In this case, the program identification symbol “H1” must be used ( i.e.,  DO-H1).

(c) A person may combine DX- and DO-rated orders from one customer or several customers if the items or services covered by each level of priority are identified separately and clearly. If different program identification symbols are indicated on those rated orders of equal priority, the person must use the program identification symbol “H1” ( i.e.,  DO-H1 or DX-H1).

(d) Combining rated and unrated orders.

(1) A person may combine rated and unrated order quantities on one purchase order provided that:

(i) The rated quantities are separately and clearly identified; and

(ii) The four elements of a rated order, as required by § 217.32, are included on the order with the statement required in § 217.32(d) modified to read in substance:

This purchase order contains rated order quantities certified for national defense use, and you are required to follow all applicable provisions of the Energy Priorities and Allocations System regulations at 10 CFR part 217 only as it pertains to the rated quantities.

(2) A supplier must accept or reject the rated portion of the purchase order as provided in § 217.33 and give preferential treatment only to the rated quantities as required by this part. This part may not be used to require preferential treatment for the unrated portion of the order.

(3) Any supplier who believes that rated and unrated orders are being combined in a manner contrary to the intent of this part or in a fashion that causes undue or exceptional hardship may submit a request for adjustment or exception under § 217.80.

(e) A person may place a rated order for the minimum commercially procurable quantity even if the quantity needed to fill a rated order is less than that minimum. However, a person must combine rated orders as provided in paragraph (c) of this section, if possible, to obtain minimum procurable quantities.

(f) A person is not required to place a priority rating on an order for less than $50,000, or one-half of the Simplified Acquisition Threshold (as established in the Federal Acquisition Regulation (FAR) (see FAR section 2.101) or in other authorized acquisition regulatory or management systems) whichever amount is greater, provided that delivery can be obtained in a timely fashion without the use of the priority rating."
10:10:3.0.1.1.10.3.9.9,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,C,Subpart C—Placement of Rated Orders,,§ 217.38 Limitations on placing rated orders.,DOE,,,,"(a) General limitations.

(1) A person may not place a DO- or DX-rated order unless entitled to do so under this part.

(2) Rated orders may not be used to obtain:

(i) Delivery on a date earlier than needed;

(ii) A greater quantity of the item or services than needed, except to obtain a minimum procurable quantity. Separate rated orders may not be placed solely for the purpose of obtaining minimum procurable quantities on each order;

(iii) Items or services in advance of the receipt of a rated order, except as specifically authorized by the Department of Energy (see § 217.41(c) for information on obtaining authorization for a priority rating in advance of a rated order);

(iv) Items that are not needed to fill a rated order, except as specifically authorized by the Department of Energy, or as otherwise permitted by this part; or

(v) Any of the following items unless specific priority rating authority has been obtained from the Department of Energy, a Delegate Agency, or the Department of Commerce, as appropriate:

(A) Items for plant improvement, expansion, or construction, unless they will be physically incorporated into a construction project covered by a rated order; and

(B) Production or construction equipment or items to be used for the manufacture of production equipment. [For information on requesting priority rating authority, see § 217.21.]

(vi) Any items related to the development of chemical or biological warfare capabilities or the production of chemical or biological weapons, unless such development or production has been authorized by the President or the Secretary of Defense.

(b) Jurisdictional limitations.

(1) Unless authorized by the resource agency with jurisdiction, the provisions of this part are not applicable to the following resources:

(i) Food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer (Resource agency with jurisdiction—Department of Agriculture);

(ii) Health resources (Resource agency with jurisdiction—Department of Health and Human Services);

(iii) All forms of civil transportation (Resource agency with jurisdiction—Department of Transportation);

(iv) Water resources (Resource agency with jurisdiction—Department of Defense/U.S. Army Corps of Engineers); and

(v) Communications services (Resource agency with jurisdiction—National Communications System under E. O. 12472 of April 3, 1984)."
10:10:3.0.1.1.10.4.9.1,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,D,Subpart D—Special Priorities Assistance,,§ 217.40 General provisions.,DOE,,,"[76 FR 33619, June 9, 2011, as amended at 85 FR 31670, May 27, 2020]","(a) The EPAS is designed to be largely self-executing. However, from time-to-time production or delivery problems will arise. In this event, a person should immediately contact the Office of Electricity, for guidance or assistance (Contact the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93). If the problem(s) cannot otherwise be resolved, special priorities assistance should be sought from the Department of Energy through the Office of Electricity (Contact the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93). If the Department of Energy is unable to resolve the problem or to authorize the use of a priority rating and believes additional assistance is warranted, the Department of Energy may forward the request to another agency with resource jurisdiction, as appropriate, for action. Special priorities assistance is provided to alleviate problems that do arise.

(b) Special priorities assistance is available for any reason consistent with this part. Generally, special priorities assistance is provided to expedite deliveries, resolve delivery conflicts, place rated orders, locate suppliers, or to verify information supplied by customers and vendors. Special priorities assistance may also be used to request rating authority for items that are not normally eligible for priority treatment.

(c) A request for special priorities assistance or priority rating authority must be submitted on Form DOE F 544 (05-11) (OMB control number 1910-5159) to the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93. Form DOE F 544 (05-11) may be obtained from the Department of Energy or a Delegate Agency. A sample Form DOE F 544 (05-11) is attached at appendix I to this part."
10:10:3.0.1.1.10.4.9.2,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,D,Subpart D—Special Priorities Assistance,,§ 217.41 Requests for priority rating authority.,DOE,,,,"(a) If a rated order is likely to be delayed because a person is unable to obtain items or services not normally rated under this part, the person may request the authority to use a priority rating in ordering the needed items or services.

(b) Rating authority for production or construction equipment.

(1) A request for priority rating authority for production or construction equipment must be submitted to the U.S. Department of Commerce on Form BIS-999.

(2) When the use of a priority rating is authorized for the procurement of production or construction equipment, a rated order may be used either to purchase or to lease such equipment. However, in the latter case, the equipment may be leased only from a person engaged in the business of leasing such equipment or from a person willing to lease rather than sell.

(c) Rating authority in advance of a rated prime contract. (1) In certain cases and upon specific request, the Department of Energy, in order to promote the national defense, may authorize or request the Department of Commerce to authorize, as appropriate, a person to place a priority rating on an order to a supplier in advance of the issuance of a rated prime contract. In these instances, the person requesting advance rating authority must obtain sponsorship of the request from the Department of Energy or the appropriate Delegate Agency. The person shall also assume any business risk associated with the placing of rated orders in the event the rated prime contract is not issued.

(2) The person must state the following in the request:

It is understood that the authorization of a priority rating in advance of our receiving a rated prime contract from the Department of Energy and our use of that priority rating with our suppliers in no way commits the Department of Energy, the Department of Commerce, or any other government agency to enter into a contract or order or to expend funds. Further, we understand that the Federal Government shall not be liable for any cancellation charges, termination costs, or other damages that may accrue if a rated prime contract is not eventually placed and, as a result, we must subsequently cancel orders placed with the use of the priority rating authorized as a result of this request.

(3) In reviewing requests for rating authority in advance of a rated prime contract, the Department of Energy or the Department of Commerce, as appropriate, will consider, among other things, the following criteria:

(i) The probability that the prime contract will be awarded;

(ii) The impact of the resulting rated orders on suppliers and on other authorized programs;

(iii) Whether the contractor is the sole source;

(iv) Whether the item being produced has a long lead time;

(v) The time period for which the rating is being requested.

(4) The Department of Energy or the Department of Commerce, as appropriate, may require periodic reports on the use of the rating authority granted under paragraph (c) of this section.

(5) If a rated prime contract is not issued, the person shall promptly notify all suppliers who have received rated orders pursuant to the advanced rating authority that the priority rating on those orders is cancelled."
10:10:3.0.1.1.10.4.9.3,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,D,Subpart D—Special Priorities Assistance,,§ 217.42 Examples of assistance.,DOE,,,,"(a) While special priorities assistance may be provided for any reason in support of this part, it is usually provided in situations where:

(1) A person is experiencing difficulty in obtaining delivery against a rated order by the required delivery date; or

(2) A person cannot locate a supplier for an item or service needed to fill a rated order.

(b) Other examples of special priorities assistance include:

(1) Ensuring that rated orders receive preferential treatment by suppliers;

(2) Resolving production or delivery conflicts between various rated orders;

(3) Assisting in placing rated orders with suppliers;

(4) Verifying the urgency of rated orders; and

(5) Determining the validity of rated orders."
10:10:3.0.1.1.10.4.9.4,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,D,Subpart D—Special Priorities Assistance,,§ 217.43 Criteria for assistance.,DOE,,,,"Requests for special priorities assistance should be timely,  i.e.,  the request has been submitted promptly and enough time exists for the Department of Energy, the Delegate Agency, or the Department of Commerce for industrial resources to effect a meaningful resolution to the problem, and must establish that:

(a) There is an urgent need for the item; and

(b) The applicant has made a reasonable effort to resolve the problem."
10:10:3.0.1.1.10.4.9.5,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,D,Subpart D—Special Priorities Assistance,,§ 217.44 Instances where assistance may not be provided.,DOE,,,,"Special priorities assistance is provided at the discretion of the Department of Energy, the Delegate Agencies, or the Department of Commerce when it is determined that such assistance is warranted to meet the objectives of this part. Examples where assistance may not be provided include situations when a person is attempting to:

(a) Secure a price advantage;

(b) Obtain delivery prior to the time required to fill a rated order;

(c) Gain competitive advantage;

(d) Disrupt an industry apportionment program in a manner designed to provide a person with an unwarranted share of scarce items; or

(e) Overcome a supplier's regularly established terms of sale or conditions of doing business."
10:10:3.0.1.1.10.5.9.1,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,E,Subpart E—Allocation Actions,,§ 217.50 Policy.,DOE,,,,"(a) It is the policy of the Federal Government that the allocations authority under title I of the Defense Production Act may:

(1) Only be used when there is insufficient supply of a material, service, or facility to satisfy national defense supply requirements through the use of the priorities authority or when the use of the priorities authority would cause a severe and prolonged disruption in the supply of materials, services, or facilities available to support normal U.S. economic activities; and

(2) Not be used to ration materials or services at the retail level.

(b) Allocation orders, when used, will be distributed equitably among the suppliers of the materials, services, or facilities being allocated and not require any person to relinquish a disproportionate share of the civilian market."
10:10:3.0.1.1.10.5.9.2,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,E,Subpart E—Allocation Actions,,§ 217.51 General procedures.,DOE,,,,"When the Department of Energy plans to execute its allocations authority to address a supply problem within its resource jurisdiction, the Department shall develop a plan that includes the following information:

(a) A copy of the written determination made, in accordance with section 202 of E.O. 12919, that the program or programs that would be supported by the allocation action are necessary or appropriate to promote the national defense;

(b) A detailed description of the situation to include any unusual events or circumstances that have created the requirement for an allocation action;

(c) A statement of the specific objective(s) of the allocation action;

(d) A list of the materials, services, or facilities to be allocated;

(e) A list of the sources of the materials, services, or facilities that will be subject to the allocation action;

(f) A detailed description of the provisions that will be included in the allocation orders, including the type(s) of allocation orders, the percentages or quantity of capacity or output to be allocated for each purpose, and the duration of the allocation action ( i.e.,  anticipated start and end dates);

(g) An evaluation of the impact of the proposed allocation action on the civilian market; and

(h) Proposed actions, if any, to mitigate disruptions to civilian market operations."
10:10:3.0.1.1.10.5.9.3,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,E,Subpart E—Allocation Actions,,§ 217.52 Controlling the general distribution of a material in the civilian market.,DOE,,,,"No allocation action by the Department of Energy may be used to control the general distribution of a material in the civilian market, unless the Secretary of the Department of Energy has:

(a) Made a written finding that:

(1) Such material is a scarce and critical material essential to the national defense, and

(2) The requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship;

(b) Submitted the finding for the President's approval through the Assistant to the President for National Security Affairs; and

(c) The President has approved the finding."
10:10:3.0.1.1.10.5.9.4,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,E,Subpart E—Allocation Actions,,§ 217.53 Types of allocation orders.,DOE,,,,"There are three types of allocation orders available for communicating allocation actions. These are:

(a)  Set-aside:  an official action that requires a person to reserve materials, services, or facilities capacity in anticipation of the receipt of rated orders;

(b)  Directive:  an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions. For example, a directive can require a person to: stop or reduce production of an item; prohibit the use of selected materials, services, or facilities; or divert the use of materials, services, or facilities from one purpose to another; and

(c)  Allotment:  an official action that specifies the maximum quantity of a material, service, or facility authorized for a specific use."
10:10:3.0.1.1.10.5.9.5,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,E,Subpart E—Allocation Actions,,§ 217.54 Elements of an allocation order.,DOE,,,,"Each allocation order must include:

(a) A detailed description of the required allocation action(s);

(b) Specific start and end calendar dates for each required allocation action;

(c) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of the Secretary of Energy. The signature or use of the name certifies that the order is authorized under this part and that the requirements of this part are being followed;

(d) A statement that reads in substance: “This is an allocation order certified for national defense use. [Insert the legal name of the person receiving the order] is required to comply with this order, in accordance with the provisions of the Energy Priorities and Allocations System regulation (10 CFR part 217), which is part of the Federal Priorities and Allocations System”; and

(e) A current copy of the Energy Priorities and Allocations System regulation (10 CFR part 217)."
10:10:3.0.1.1.10.5.9.6,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,E,Subpart E—Allocation Actions,,§ 217.55 Mandatory acceptance of an allocation order.,DOE,,,,"(a) Except as otherwise specified in this section, a person shall accept and comply with every allocation order received.

(b) A person shall not discriminate against an allocation order in any manner such as by charging higher prices for materials, services, or facilities covered by the order or by imposing terms and conditions for contracts and orders involving allocated materials, services, or facilities that differ from the person's terms and conditions for contracts and orders for the materials, services, or facilities prior to receiving the allocation order.

(c) If a person is unable to comply fully with the required action(s) specified in an allocation order, the person must notify the Department of Energy immediately, explain the extent to which compliance is possible, and give the reasons why full compliance is not possible. If notification is given verbally, written or electronic confirmation must be provided within five (5) working days. Such notification does not release the person from complying with the order to the fullest extent possible, until the person is notified by the Department of Energy that the order has been changed or cancelled."
10:10:3.0.1.1.10.5.9.7,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,E,Subpart E—Allocation Actions,,§ 217.56 Changes or cancellations of an allocation order.,DOE,,,,An allocation order may be changed or canceled by an official action of the Department of Energy.
10:10:3.0.1.1.10.6.9.1,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,F,Subpart F—Official Actions,,§ 217.60 General provisions.,DOE,,,,"(a) The Department of Energy may take specific official actions to implement the provisions of this part.

(b) These official actions include Rating Authorizations, Directives, and Memoranda of Understanding."
10:10:3.0.1.1.10.6.9.2,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,F,Subpart F—Official Actions,,§ 217.61 Rating Authorizations.,DOE,,,,"(a) A Rating Authorization is an official action granting specific priority rating authority that:

(1) Permits a person to place a priority rating on an order for an item or service not normally ratable under this part; or

(2) Authorizes a person to modify a priority rating on a specific order or series of contracts or orders.

(b) To request priority rating authority, see § 217.41."
10:10:3.0.1.1.10.6.9.3,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,F,Subpart F—Official Actions,,§ 217.62 Directives.,DOE,,,,"(a) A Directive is an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions.

(b) A person must comply with each Directive issued. However, a person may not use or extend a Directive to obtain any items from a supplier, unless expressly authorized to do so in the Directive.

(c) A Priorities Directive takes precedence over all DX-rated orders, DO-rated orders, and unrated orders previously or subsequently received, unless a contrary instruction appears in the Directive.

(d) An Allocations Directive takes precedence over all Priorities Directives, DX-rated orders, DO-rated orders, and unrated orders previously or subsequently received, unless a contrary instruction appears in the Directive."
10:10:3.0.1.1.10.6.9.4,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,F,Subpart F—Official Actions,,§ 217.63 Letters and Memoranda of Understanding.,DOE,,,,"(a) A Letter or Memorandum of Understanding is an official action that may be issued in resolving special priorities assistance cases to reflect an agreement reached by all parties (the Department of Energy, the Department of Commerce (if applicable), a Delegate Agency (if applicable), the supplier, and the customer).

(b) A Letter or Memorandum of Understanding is not used to alter scheduling between rated orders, to authorize the use of priority ratings, to impose restrictions under this part. Rather, Letters or Memoranda of Understanding are used to confirm production or shipping schedules that do not require modifications to other rated orders."
10:10:3.0.1.1.10.7.9.1,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,G,Subpart G—Compliance,,§ 217.70 General provisions.,DOE,,,,"(a) The Department of Energy may take specific official actions for any reason necessary or appropriate to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or an official action. Such actions include Administrative Subpoenas, Demands for Information, and Inspection Authorizations.

(b) Any person who places or receives a rated order or an allocation order must comply with the provisions of this part.

(c) Willful violation of the provisions of title I or section 705 of the Defense Production Act and other applicable statutes, this part, or an official action of the Department of Energy is a criminal act, punishable as provided in the Defense Production Act and other applicable statutes, and as set forth in § 217.74 of this part."
10:10:3.0.1.1.10.7.9.2,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,G,Subpart G—Compliance,,§ 217.71 Audits and investigations.,DOE,,,,"(a) Audits and investigations are official examinations of books, records, documents, other writings and information to ensure that the provisions of the Defense Production Act and other applicable statutes, this part, and official actions have been properly followed. An audit or investigation may also include interviews and a systems evaluation to detect problems or failures in the implementation of this part.

(b) When undertaking an audit or investigation, the Department of Energy shall:

(1) Define the scope and purpose in the official action given to the person under investigation, and

(2) Have ascertained that the information sought or other adequate and authoritative data are not available from any Federal or other responsible agency.

(c) In administering this part, the Department of Energy may issue the following documents that constitute official actions:

(1) Administrative Subpoenas. An Administrative Subpoena requires a person to appear as a witness before an official designated by the Department of Energy to testify under oath on matters of which that person has knowledge relating to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or official actions. An Administrative Subpoena may also require the production of books, papers, records, documents and physical objects or property.

(2) Demands for Information. A Demand for Information requires a person to furnish to a duly authorized representative of the Department of Energy any information necessary or appropriate to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or official actions.

(3) Inspection Authorizations. An Inspection Authorization requires a person to permit a duly authorized representative of the Department of Energy to interview the person's employees or agents, to inspect books, records, documents, other writings, and information, including electronically-stored information, in the person's possession or control at the place where that person usually keeps them or otherwise, and to inspect a person's property when such interviews and inspections are necessary or appropriate to the enforcement or the administration of the Defense Production Act and related statutes, this part, or official actions.

(d) The production of books, records, documents, other writings, and information will not be required at any place other than where they are usually kept if, prior to the return date specified in the Administrative Subpoena or Demand for Information, a duly authorized official of the Department of Energy is furnished with copies of such material that are certified under oath to be true copies. As an alternative, a person may enter into a stipulation with a duly authorized official of Department of Energy as to the content of the material.

(e) An Administrative Subpoena, Demand for Information, or Inspection Authorization, shall include the name, title, or official position of the person to be served, the evidence sought to be adduced, and its general relevance to the scope and purpose of the audit, investigation, or other inquiry. If employees or agents are to be interviewed; if books, records, documents, other writings, or information are to be produced; or if property is to be inspected; the Administrative Subpoena, Demand for Information, or Inspection Authorization will describe them with particularity.

(f) Service of documents shall be made in the following manner:

(1) Service of a Demand for Information or Inspection Authorization shall be made personally, or by Certified Mail-Return Receipt Requested at the person's last known address. Service of an Administrative Subpoena shall be made personally. Personal service may also be made by leaving a copy of the document with someone at least 18 years old at the person's last known dwelling or place of business.

(2) Service upon other than an individual may be made by serving a partner, corporate officer, or a managing or general agent authorized by appointment or by law to accept service of process. If an agent is served, a copy of the document shall be mailed to the person named in the document.

(3) Any individual 18 years of age or over may serve an Administrative Subpoena, Demand for Information, or Inspection Authorization. When personal service is made, the individual making the service shall prepare an affidavit as to the manner in which service was made and the identity of the person served, and return the affidavit, and in the case of subpoenas, the original document, to the issuing officer. In case of failure to make service, the reasons for the failure shall be stated on the original document."
10:10:3.0.1.1.10.7.9.3,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,G,Subpart G—Compliance,,§ 217.72 Compulsory process.,DOE,,,"[76 FR 33619, June 9, 2011, as amended at 85 FR 31670, May 27, 2020]","(a) If a person refuses to permit a duly authorized representative of the Department of Energy to have access to any premises or source of information necessary to the administration or the enforcement of the Defense Production Act and other applicable statutes, this part, or official actions, the Department of Energy representative may seek compulsory process. Compulsory process means the institution of appropriate legal action, including ex parte application for an inspection warrant or its equivalent, in any forum of appropriate jurisdiction.

(b) Compulsory process may be sought in advance of an audit, investigation, or other inquiry, if, in the judgment of the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93, there is reason to believe that a person will refuse to permit an audit, investigation, or other inquiry, or that other circumstances exist which make such process desirable or necessary."
10:10:3.0.1.1.10.7.9.4,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,G,Subpart G—Compliance,,§ 217.73 Notification of failure to comply.,DOE,,,,"(a) At the conclusion of an audit, investigation, or other inquiry, or at any other time, the Department of Energy may inform the person in writing where compliance with the requirements of the Defense Production Act and other applicable statutes, this part, or an official action were not met.

(b) In cases where the Department of Energy determines that failure to comply with the provisions of the Defense Production Act and other applicable statutes, this part, or an official action was inadvertent, the person may be informed in writing of the particulars involved and the corrective action to be taken. Failure to take corrective action may then be construed as a willful violation of the Defense Production Act and other applicable statutes, this part, or an official action."
10:10:3.0.1.1.10.7.9.5,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,G,Subpart G—Compliance,,"§ 217.74 Violations, penalties, and remedies.",DOE,,,,"(a) Willful violation of the provisions of title I or sections 705 or 707 of the Defense Production Act, the priorities provisions of the Selective Service Act and related statutes (when applicable), this part, or an official action, is a crime and upon conviction, a person may be punished by fine or imprisonment, or both. The maximum penalties provided by the Defense Production Act are a $10,000 fine, or one year in prison, or both. The maximum penalties provided by the Selective Service Act and related statutes are a $50,000 fine, or three years in prison, or both.

(b) The Government may also seek an injunction from a court of appropriate jurisdiction to prohibit the continuance of any violation of, or to enforce compliance with, the Defense Production Act, this part, or an official action.

(c) In order to secure the effective enforcement of the Defense Production Act and other applicable statutes, this part, and official actions, the following are prohibited:

(1) No person may solicit, influence or permit another person to perform any act prohibited by, or to omit any act required by, the Defense Production Act and other applicable statutes, this part, or an official action.

(2) No person may conspire or act in concert with any other person to perform any act prohibited by, or to omit any act required by, the Defense Production Act and other applicable statutes, this part, or an official action.

(3) No person shall deliver any item if the person knows or has reason to believe that the item will be accepted, redelivered, held, or used in violation of the Defense Production Act and other applicable statutes, this part, or an official action. In such instances, the person must immediately notify the Department of Energy that, in accordance with this provision, delivery has not been made."
10:10:3.0.1.1.10.7.9.6,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,G,Subpart G—Compliance,,§ 217.75 Compliance conflicts.,DOE,,,,"If compliance with any provision of the Defense Production Act and other applicable statutes, this part, or an official action would prevent a person from filling a rated order or from complying with another provision of the Defense Production Act and other applicable statutes, this part, or an official action, the person must immediately notify the Department of Energy for resolution of the conflict."
10:10:3.0.1.1.10.8.9.1,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,H,"Subpart H—Adjustments, Exceptions, and Appeals",,§ 217.80 Adjustments or exceptions.,DOE,,,"[76 FR 33619, June 9, 2011, as amended at 85 FR 31670, May 27, 2020]","(a) A person may submit a request to the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93, for an adjustment or exception on the ground that:

(1) A provision of this part or an official action results in an undue or exceptional hardship on that person not suffered generally by others in similar situations and circumstances; or

(2) The consequences of following a provision of this part or an official action is contrary to the intent of the Defense Production Act and other applicable statutes, or this part.

(b) Each request for adjustment or exception must be in writing and contain a complete statement of all the facts and circumstances related to the provision of this part or official action from which adjustment is sought and a full and precise statement of the reasons why relief should be provided.

(c) The submission of a request for adjustment or exception shall not relieve any person from the obligation of complying with the provision of this part or official action in question while the request is being considered unless such interim relief is granted in writing by the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93.

(d) A decision of the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93, under this section may be appealed to the Assistant Secretary, Office of Electricity (For information on the appeal procedure, see § 217.81.)"
10:10:3.0.1.1.10.8.9.2,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,H,"Subpart H—Adjustments, Exceptions, and Appeals",,§ 217.81 Appeals.,DOE,,,"[76 FR 33619, June 9, 2011, as amended at 85 FR 31670, May 27, 2020]","(a) Any person who has had a request for adjustment or exception denied by the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in section 217.93, under § 217.80, may appeal to the Assistant Secretary, Office of Electricity who shall review and reconsider the denial.

(b)(1) Except as provided in this paragraph (b)(2), an appeal must be received by the Assistant Secretary, Office of Electricity no later than 45 days after receipt of a written notice of denial from the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93. After this 45-day period, an appeal may be accepted at the discretion of the Assistant Secretary, Office of Electricity for good cause shown.

(2) For requests for adjustment or exception involving rated orders placed for the purpose of emergency preparedness (see 217.14(d)), an appeal must be received by the Assistant Secretary, Office of Electricity, no later than 15 days after receipt of a written notice of denial from the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93. Contract performance under the order shall not be stayed pending resolution of the appeal.

(c) Each appeal must be in writing and contain a complete statement of all the facts and circumstances related to the action appealed from and a full and precise statement of the reasons the decision should be modified or reversed.

(d) In addition to the written materials submitted in support of an appeal, an appellant may request, in writing, an opportunity for an informal hearing. This request may be granted or denied at the discretion of the Assistant Secretary, Office of Electricity.

(e) When a hearing is granted, the Assistant Secretary, Office of Electricity may designate an employee to conduct the hearing and to prepare a report. The hearing officer shall determine all procedural questions and impose such time or other limitations deemed reasonable. In the event that the hearing officer decides that a printed transcript is necessary, all expenses shall be borne by the appellant.

(f) When determining an appeal, the Assistant Secretary, Office of Electricity may consider all information submitted during the appeal as well as any recommendations, reports, or other relevant information and documents available to the Department of Energy or consult with any other persons or groups.

(g) The submission of an appeal under this section shall not relieve any person from the obligation of complying with the provision of this part or official action in question while the appeal is being considered unless such relief is granted in writing by the Assistant Secretary, Office of Electricity.

(h) The decision of the Assistant Secretary, Office of Electricity shall be made within five (5) days after receipt of the appeal, or within one (1) day for appeals pertaining to emergency preparedness and shall be the final administrative action. It shall be issued to the appellant in writing with a statement of the reasons for the decision."
10:10:3.0.1.1.10.9.9.1,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,I,Subpart I—Miscellaneous Provisions,,§ 217.90 Protection against claims.,DOE,,,,"A person shall not be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with any provision of this part, or an official action, notwithstanding that such provision or action shall subsequently be declared invalid by judicial or other competent authority."
10:10:3.0.1.1.10.9.9.2,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,I,Subpart I—Miscellaneous Provisions,,§ 217.91 Records and reports.,DOE,,,,"(a) Persons are required to make and preserve for at least three years, accurate and complete records of any transaction covered by this part or an official action.

(b) Records must be maintained in sufficient detail to permit the determination, upon examination, of whether each transaction complies with the provisions of this part or any official action. However, this part does not specify any particular method or system to be used.

(c) Records required to be maintained by this part must be made available for examination on demand by duly authorized representatives of the Department of Energy as provided in § 217.71.

(d) In addition, persons must develop, maintain, and submit any other records and reports to the Department of Energy that may be required for the administration of the Defense Production Act and other applicable statutes, and this part.

(e) Section 705(d) of the Defense Production Act, as implemented by E.O. 12919, provides that information obtained under this section which the Secretary deems confidential, or with reference to which a request for confidential treatment is made by the person furnishing such information, shall not be published or disclosed unless the Secretary determines that the withholding of this information is contrary to the interest of the national defense. Information required to be submitted to the Department of Energy in connection with the enforcement or administration of the Defense Production Act, this part, or an official action, is deemed to be confidential under section 705(d) of the Defense Production Act and shall be handled in accordance with applicable Federal law."
10:10:3.0.1.1.10.9.9.3,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,I,Subpart I—Miscellaneous Provisions,,§ 217.92 Applicability of this part and official actions.,DOE,,,,"(a) This part and all official actions, unless specifically stated otherwise, apply to transactions in any state, territory, or possession of the United States and the District of Columbia.

(b) This part and all official actions apply not only to deliveries to other persons but also include deliveries to affiliates and subsidiaries of a person and deliveries from one branch, division, or section of a single entity to another branch, division, or section under common ownership or control.

(c) This part and its schedules shall not be construed to affect any administrative actions taken by the Department of Energy, or any outstanding contracts or orders placed pursuant to any of the regulations, orders, schedules or delegations of authority previously issued by the Department of Energy pursuant to authority granted to the President in the Defense Production Act. Such actions, contracts, or orders shall continue in full force and effect under this part unless modified or terminated by proper authority."
10:10:3.0.1.1.10.9.9.4,10,Energy,II,A,217,PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM,I,Subpart I—Miscellaneous Provisions,,§ 217.93 Communications.,DOE,,,"[85 FR 31670, May 27, 2020]","All communications concerning this part, including requests for copies of the regulation and explanatory information, requests for guidance or clarification, and requests for adjustment or exception shall be addressed to the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, U.S. Department of Energy, 1000 Independence Ave. SW, Washington, DC 20585; (202) 586-1411 ( AskOE@hq.doe.gov )."
10:10:3.0.1.1.11.1.9.1,10,Energy,II,A,218,PART 218—STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION,A,Subpart A—General Provisions,,§ 218.1 Purpose and scope.,DOE,,,,"(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 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."
10:10:3.0.1.1.11.1.9.2,10,Energy,II,A,218,PART 218—STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION,A,Subpart A—General Provisions,,§ 218.2 Activation/Deactivation.,DOE,,,,"(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."
10:10:3.0.1.1.11.1.9.3,10,Energy,II,A,218,PART 218—STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION,A,Subpart A—General Provisions,,§ 218.3 Definitions.,DOE,,,,"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."
10:10:3.0.1.1.11.2.9.1,10,Energy,II,A,218,PART 218—STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION,B,Subpart B—Supply Orders,,§ 218.10 Rule.,DOE,,,,"(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."
10:10:3.0.1.1.11.2.9.2,10,Energy,II,A,218,PART 218—STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION,B,Subpart B—Supply Orders,,§ 218.11 Supply orders.,DOE,,,,"(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 § 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 § 218.32 of this part."
10:10:3.0.1.1.11.2.9.3,10,Energy,II,A,218,PART 218—STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION,B,Subpart B—Supply Orders,,§ 218.12 Pricing.,DOE,,,,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.
10:10:3.0.1.1.11.4.9.1,10,Energy,II,A,218,PART 218—STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION,D,Subpart D—Procedures,,§ 218.30 Purpose and scope.,DOE,,,,"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."
10:10:3.0.1.1.11.4.9.2,10,Energy,II,A,218,PART 218—STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION,D,Subpart D—Procedures,,§ 218.31 Incorporated procedures.,DOE,,,,"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 § 205.11 shall not apply;  and Provided further,  that in addition to the methods of service specified in § 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."
10:10:3.0.1.1.11.4.9.3,10,Energy,II,A,218,PART 218—STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION,D,Subpart D—Procedures,,§ 218.32 Review.,DOE,,,,"(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 criteria 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 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."
10:10:3.0.1.1.11.4.9.4,10,Energy,II,A,218,PART 218—STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION,D,Subpart D—Procedures,,§ 218.33 Stay.,DOE,,,,"(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."
10:10:3.0.1.1.11.4.9.5,10,Energy,II,A,218,PART 218—STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION,D,Subpart D—Procedures,,§ 218.34 Addresses.,DOE,,,,"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."
10:10:3.0.1.1.11.5.9.1,10,Energy,II,A,218,PART 218—STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION,E,"Subpart E—Investigations, Violations, Sanctions and Judicial Actions",,§ 218.40 Investigations.,DOE,,,,"(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 § 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."
10:10:3.0.1.1.11.5.9.2,10,Energy,II,A,218,PART 218—STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION,E,"Subpart E—Investigations, Violations, Sanctions and Judicial Actions",,§ 218.41 Violations.,DOE,,,,"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."
10:10:3.0.1.1.11.5.9.3,10,Energy,II,A,218,PART 218—STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION,E,"Subpart E—Investigations, Violations, Sanctions and Judicial Actions",,§ 218.42 Sanctions.,DOE,,,"[44 FR 27972, May 14, 1979, as amended at 62 FR 46183, Sept. 2, 1997; 74 FR 66032, Dec. 14, 2009; 79 FR 19, Jan. 2, 2014; 81 FR 41793, June 28, 2016; 81 FR 96351, Dec. 30, 2016; 83 FR 1291, Jan. 11, 2018; 83 FR 66083, Dec. 26, 2018; 85 FR 830, Jan. 8, 2020; 86 FR 2955, Jan. 14, 2021; 87 FR 1063, Jan. 10, 2022; 88 FR 2193, Jan. 13, 2023; 89 FR 1027, Jan. 9, 2024; 89 FR 105406, Dec. 27, 2024]","(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 this part or any order issued pursuant thereto shall be subject to a civil penalty of not more than $28,748 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 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)."
10:10:3.0.1.1.11.5.9.4,10,Energy,II,A,218,PART 218—STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION,E,"Subpart E—Investigations, Violations, Sanctions and Judicial Actions",,§ 218.43 Injunctions.,DOE,,,,"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."
10:10:3.0.1.1.13.1.9.1,10,Energy,II,A,221,PART 221—PRIORITY SUPPLY OF CRUDE OIL AND PETROLEUM PRODUCTS TO THE DEPARTMENT OF DEFENSE UNDER THE DEFENSE PRODUCTION ACT,A,Subpart A—General,,§ 221.1 Scope.,DOE,,,,"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."
10:10:3.0.1.1.13.1.9.2,10,Energy,II,A,221,PART 221—PRIORITY SUPPLY OF CRUDE OIL AND PETROLEUM PRODUCTS TO THE DEPARTMENT OF DEFENSE UNDER THE DEFENSE PRODUCTION ACT,A,Subpart A—General,,§ 221.2 Applicability.,DOE,,,,"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."
10:10:3.0.1.1.13.2.9.1,10,Energy,II,A,221,PART 221—PRIORITY SUPPLY OF CRUDE OIL AND PETROLEUM PRODUCTS TO THE DEPARTMENT OF DEFENSE UNDER THE DEFENSE PRODUCTION ACT,B,Subpart B—Exclusions,,§ 221.11 Natural gas and ethane.,DOE,,,,The supply of natural gas and ethane are excluded from this part.
10:10:3.0.1.1.13.3.9.1,10,Energy,II,A,221,PART 221—PRIORITY SUPPLY OF CRUDE OIL AND PETROLEUM PRODUCTS TO THE DEPARTMENT OF DEFENSE UNDER THE DEFENSE PRODUCTION ACT,C,Subpart C—Definitions,,§ 221.21 Definitions.,DOE,,,,"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."
10:10:3.0.1.1.13.4.9.1,10,Energy,II,A,221,PART 221—PRIORITY SUPPLY OF CRUDE OIL AND PETROLEUM PRODUCTS TO THE DEPARTMENT OF DEFENSE UNDER THE DEFENSE PRODUCTION ACT,D,Subpart D—Administrative Procedures and Sanctions,,§ 221.31 Requests by DOD.,DOE,,,,"(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."
10:10:3.0.1.1.13.4.9.2,10,Energy,II,A,221,PART 221—PRIORITY SUPPLY OF CRUDE OIL AND PETROLEUM PRODUCTS TO THE DEPARTMENT OF DEFENSE UNDER THE DEFENSE PRODUCTION ACT,D,Subpart D—Administrative Procedures and Sanctions,,§ 221.32 Evaluation of DOD request.,DOE,,,,"(a) Upon receipt of a request from DOD for a priority rating as provided in § 221.31, it shall be reviewed promptly by ERA. The ERA will assess the request in terms of:

(1) The information provided under § 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.

(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 § 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."
10:10:3.0.1.1.13.4.9.3,10,Energy,II,A,221,PART 221—PRIORITY SUPPLY OF CRUDE OIL AND PETROLEUM PRODUCTS TO THE DEPARTMENT OF DEFENSE UNDER THE DEFENSE PRODUCTION ACT,D,Subpart D—Administrative Procedures and Sanctions,,§ 221.33 Order.,DOE,,,,"(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."
10:10:3.0.1.1.13.4.9.4,10,Energy,II,A,221,PART 221—PRIORITY SUPPLY OF CRUDE OIL AND PETROLEUM PRODUCTS TO THE DEPARTMENT OF DEFENSE UNDER THE DEFENSE PRODUCTION ACT,D,Subpart D—Administrative Procedures and Sanctions,,§ 221.34 Effect of order.,DOE,,,,"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."
10:10:3.0.1.1.13.4.9.5,10,Energy,II,A,221,PART 221—PRIORITY SUPPLY OF CRUDE OIL AND PETROLEUM PRODUCTS TO THE DEPARTMENT OF DEFENSE UNDER THE DEFENSE PRODUCTION ACT,D,Subpart D—Administrative Procedures and Sanctions,,§ 221.35 Contractual requirements.,DOE,,,,"(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)."
10:10:3.0.1.1.13.4.9.6,10,Energy,II,A,221,PART 221—PRIORITY SUPPLY OF CRUDE OIL AND PETROLEUM PRODUCTS TO THE DEPARTMENT OF DEFENSE UNDER THE DEFENSE PRODUCTION ACT,D,Subpart D—Administrative Procedures and Sanctions,,§ 221.36 Records and reports.,DOE,,,"[45 FR 76433, Nov. 19, 1980, as amended at 46 FR 63209, Dec. 31, 1981]","(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.

(b) All records required to be maintained shall be made available upon request for inspection and audit by duly authorized representatives of the ERA."
10:10:3.0.1.1.13.4.9.7,10,Energy,II,A,221,PART 221—PRIORITY SUPPLY OF CRUDE OIL AND PETROLEUM PRODUCTS TO THE DEPARTMENT OF DEFENSE UNDER THE DEFENSE PRODUCTION ACT,D,Subpart D—Administrative Procedures and Sanctions,,§ 221.37 Violations and sanctions.,DOE,,,,"(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."
10:10:3.0.1.1.2.2.1.1,10,Energy,II,A,202,PART 202—PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION,B,Subpart B—Production or Disclosure in Response to Subpoenas or Demands of Courts or Other Authorities,,§ 202.21 Purpose and scope.,DOE,,,,"(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."
10:10:3.0.1.1.2.2.1.2,10,Energy,II,A,202,PART 202—PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION,B,Subpart B—Production or Disclosure in Response to Subpoenas or Demands of Courts or Other Authorities,,§ 202.22 Production or disclosure prohibited unless approved by appropriate DOE official.,DOE,,,,"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."
10:10:3.0.1.1.2.2.1.3,10,Energy,II,A,202,PART 202—PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION,B,Subpart B—Production or Disclosure in Response to Subpoenas or Demands of Courts or Other Authorities,,§ 202.23 Procedure in the event of a demand for production or disclosure.,DOE,,,,"(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 § 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."
10:10:3.0.1.1.2.2.1.4,10,Energy,II,A,202,PART 202—PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION,B,Subpart B—Production or Disclosure in Response to Subpoenas or Demands of Courts or Other Authorities,,§ 202.24 Final action by the appropriate DOE official.,DOE,,,,"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."
10:10:3.0.1.1.2.2.1.5,10,Energy,II,A,202,PART 202—PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION,B,Subpart B—Production or Disclosure in Response to Subpoenas or Demands of Courts or Other Authorities,,§ 202.25 Procedure where a decision concerning a demand is not made prior to the time a response to the demand is required.,DOE,,,,"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."
10:10:3.0.1.1.2.2.1.6,10,Energy,II,A,202,PART 202—PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION,B,Subpart B—Production or Disclosure in Response to Subpoenas or Demands of Courts or Other Authorities,,§ 202.26 Procedure in the event of an adverse ruling.,DOE,,,,"If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with § 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."
10:10:3.0.1.1.3.1.5.1,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,A,Subpart A—General Provisions,,§ 205.1 Purpose and scope.,DOE,,,"[61 FR 35114, July 5, 1996]","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."
10:10:3.0.1.1.3.1.5.10,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,A,Subpart A—General Provisions,,§ 205.10 Effective date of orders.,DOE,,,,"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."
10:10:3.0.1.1.3.1.5.11,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,A,Subpart A—General Provisions,,§ 205.11 Order of precedence.,DOE,,,,"(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."
10:10:3.0.1.1.3.1.5.12,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,A,Subpart A—General Provisions,,§ 205.12 Addresses for filing documents with the DOE.,DOE,,,"[39 FR 35489, Oct. 1, 1974, as amended at 40 FR 36555, Aug. 21, 1975; 45 FR 37684, June 4, 1980]","(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.

(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 § 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 § 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 § 205.9(c)), Washington, DC 20461.

(5) All other documents filed, except those concerning price (see paragraph (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 § 205.9(c), Washington, DC 20461.

Code Numbers

(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 § 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 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.

Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont; Regional Office, Department of Energy, 150 Causeway Street, Boston, Massachusetts 02114.

New Jersey, New York, Puerto Rico, Virgin Islands; Regional Office, Department of Energy, 26 Federal Plaza, New York, New York 10007.

Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia; Regional Office, Department of Energy, Federal Office Building, 1421 Cherry Street, Philadelphia, Pennsylvania 19102.

Alabama, Canal Zone, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina; Regional Office, Department of Energy, 1655 Peachtree Street NW., Atlanta, Georgia 30309.

Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin; Regional Office, Department of Energy, 175 West Jackson Street, Chicago, Illinois 60604.

Arkansas, Louisiana, New Mexico, Oklahoma, Texas; Regional Office, Department of Energy, 212 North Saint Paul Street, Dallas, Texas 75201.

Iowa, Kansas, Missouri, Nebraska; Regional Office, Department of Energy, Federal Office Building, P.O. Box 15000, 112 East 12th Street, Kansas City, Missouri 64106.

Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming; Regional Office, Department of Energy, Post Office Box 26247, Belmar Branch, Denver, Colorado 80226.

American Samoa, Arizona, California, Guam, Hawaii, Nevada, Trust Territory of the Pacific Islands; Regional Office, Department of Energy, 111 Pine Street, San Francisco, California 94111.

Alaska, Idaho, Oregon, Washington; Regional Office, Department of Energy, Federal Office Building, 909 First Avenue, Room 3098, Seattle, Washington 98104."
10:10:3.0.1.1.3.1.5.13,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,A,Subpart A—General Provisions,,§ 205.13 Where to file.,DOE,,,"[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]","(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 § 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 § 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."
10:10:3.0.1.1.3.1.5.14,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,A,Subpart A—General Provisions,,"§ 205.14 Ratification of prior directives, orders, and actions.",DOE,,,,"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, amended, modified or rescinded in accordance with the provisions of this part."
10:10:3.0.1.1.3.1.5.15,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,A,Subpart A—General Provisions,,§ 205.15 Public docket room.,DOE,,,,"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."
10:10:3.0.1.1.3.1.5.2,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,A,Subpart A—General Provisions,,§ 205.2 Definitions.,DOE,,,"[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]","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.

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 § 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.

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."
10:10:3.0.1.1.3.1.5.3,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,A,Subpart A—General Provisions,,§ 205.3 Appearance before the DOE or a State Office.,DOE,,,,"(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."
10:10:3.0.1.1.3.1.5.4,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,A,Subpart A—General Provisions,,§ 205.4 Filing of documents.,DOE,,,,"(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 § 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 §§ 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 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."
10:10:3.0.1.1.3.1.5.5,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,A,Subpart A—General Provisions,,§ 205.5 Computation of time.,DOE,,,,"(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."
10:10:3.0.1.1.3.1.5.6,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,A,Subpart A—General Provisions,,§ 205.6 Extension of time.,DOE,,,,"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."
10:10:3.0.1.1.3.1.5.7,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,A,Subpart A—General Provisions,,§ 205.7 Service.,DOE,,,,"(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."
10:10:3.0.1.1.3.1.5.8,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,A,Subpart A—General Provisions,,"§ 205.8 Subpoenas, special report orders, oaths, witnesses.",DOE,,,"[44 FR 23201, Apr. 19, 1979]","(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 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.

(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 regard to any instances where any attorney refuses to comply with directions or provisions of this section."
10:10:3.0.1.1.3.1.5.9,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,A,Subpart A—General Provisions,,§ 205.9 General filing requirements.,DOE,,,,"(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 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."
10:10:3.0.1.1.3.11.5.1,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,U,Subpart U—Procedures for Electricity Export Cases,,§ 205.260 Purpose and scope.,DOE,,,,"(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 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."
10:10:3.0.1.1.3.11.5.2,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,U,Subpart U—Procedures for Electricity Export Cases,,§§ 205.261-205.269 [Reserved],DOE,,,,
10:10:3.0.1.1.3.11.5.3,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,U,Subpart U—Procedures for Electricity Export Cases,,§ 205.270 Off-the-record communications.,DOE,,,,"(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."
10:10:3.0.1.1.3.12.5.1,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,V,Subpart V—Special Procedures for Distribution of Refunds,,§ 205.280 Purpose and scope.,DOE,,,,"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 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."
10:10:3.0.1.1.3.12.5.2,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,V,Subpart V—Special Procedures for Distribution of Refunds,,§ 205.281 Petition for implementation of special refund procedures.,DOE,,,,"(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 § 205.9 of this part."
10:10:3.0.1.1.3.12.5.3,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,V,Subpart V—Special Procedures for Distribution of Refunds,,§ 205.282 Evaluation of petition by the Office of Hearings and Appeals.,DOE,,,,"(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."
10:10:3.0.1.1.3.12.5.4,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,V,Subpart V—Special Procedures for Distribution of Refunds,,§ 205.283 Applications for refund.,DOE,,,,"(a) Any person entitled to a refund pursuant to a final Decision and Order issued pursuant to § 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 Decision and Order referred to in § 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."
10:10:3.0.1.1.3.12.5.5,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,V,Subpart V—Special Procedures for Distribution of Refunds,,§ 205.284 Processing of applications.,DOE,,,,"(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 § 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 § 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."
10:10:3.0.1.1.3.12.5.6,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,V,Subpart V—Special Procedures for Distribution of Refunds,,§ 205.285 Effect of failure to file a timely application.,DOE,,,,"An Application for Refund must be filed no later than the date that the Office of Hearings and Appeals establishes pursuant to § 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."
10:10:3.0.1.1.3.12.5.7,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,V,Subpart V—Special Procedures for Distribution of Refunds,,§ 205.286 Limitations on amount of refunds.,DOE,,,,"(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 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."
10:10:3.0.1.1.3.12.5.8,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,V,Subpart V—Special Procedures for Distribution of Refunds,,"§ 205.287 Escrow accounts, segregated funds and other guarantees.",DOE,,,,"(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 § 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."
10:10:3.0.1.1.3.12.5.9,10,Energy,II,A,205,PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS,V,Subpart V—Special Procedures for Distribution of Refunds,,§ 205.288 Interim and ancillary orders.,DOE,,,,"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."