STATE ADMINISTRATION OF FEDERAL PETROLEUM ALLOCATION PROGRAMS
FOR MOTOR GASOLINE AND MIDDLE DISTILLATES
(1) In response to the Arab oil embargo of 1973, the federal government has, through the Emergency Petroleum Allocation Act of 1973 and other statutes, and through regulations adopted pursuant thereto, established a series of programs governing the allocation and pricing of crude oil and refined petroleum products. Among these are:
(a) The "state set-aside program" (10 CFR 211.17), whereby a percentage of the total expected supply of a product is received each month to be allocated to alleviate hardships and emergencies; and
(b) A program (10 CFR 211.12(f)), whereby new end-users can apply for an assignment of an allocated product or a supplier.
(2) Administration of the described programs may be delegated to states. Oregon has requested the Region X Office of the U.S. Department of Energy (US DOE) for this authority as to motor gasoline and middle distillates only.
(3) The purpose of these rules is to provide the substantive framework for administering these federal programs as to motor gasoline and middle distillates only. To the extent possible, definitions of terms and substantive provisions have been taken directly from existing federal regulations. Copies of federal regulations incorporated herein by reference are available from, Oregon Department of Energy (ODOE).
(4) The basic philosophy of ODOE in implementing these programs is to alleviate emergency or hardships of actual end-users of motor gasoline and middle distillates and to alleviate regional shortages of gasoline available to the general public. Therefore, in making decisions under these rules, the emphasis will be to assure needed supplies to such end-users, taking into consideration the allocation priorities established by federal law.
(1) Unless the context clearly requires otherwise, the following definitions shall apply:
(a) The terms "action", "adjustment", "aggrieved", "assignment", "duly authorized representative", "EPAA", "EPCA", "exception", "exemption", "order", "person", and "proceeding" shall be as defined in 10 CFR 205.2;
(b) The terms "adjusted base period volume", "base period", "end-user", "firm", "motor gasoline", "prime supplier", "purchaser", "state set-aside", "supplier", "total supply", "wholesale purchaser-reseller", and "wholesale purchaser-consumer" shall be as defined in 10 CFR 211.51.
(c) "Midle distillate" means No. 1 heating oil, No. 1-D diesel fuel, No. 2 heating oil, No. 2-D diesel fuel and kerosene, as those products are defined in 10 CFR 212.31.
(d) "Hardship" means a situation involving a potentially substantial physical discomfort or danger, or substantial economic dislocation, caused by a shortage of motor gasoline or middle distillates.
(e) "Emergency" means a situation of substantial hardship which is imminent and not remediable without state assistance.
(f) "State Office" means the Oregon Department of Energy.
(g) "Allocation Officer" means the person or persons within the State Office authorized to receive, evaluate, and act upon applications.
(h) "Reviewing Officer" means the person or persons designated by the Director of the State Office, none of whom shall serve as an "Allocation Officer", authorized to review, evaluate, and act upon appeals of orders issued by Allocation Officers.
(2) References herein to Title 10, Code of Federal Regulations, are to those sections thereof as adopted (even if on a standby basis) on the effective date of these rules, including special rules issued by the U.S. Department of Energy.
State Set-Aside Program
(1) Scope and Purpose: The state set-aside shall be utilized by the State Office to meet hardship and emergency requirements of all wholesale purchaser-consumers and end-users of motor gasoline and middle distillates within Oregon. The State Office may direct that a wholesale purchaser-reseller be supplied from the state set-aside in order that it can supply wholesale consumers and end-users experiencing hardship of emergency
NOTE: Under Special Rule 7, the wholesale purchaser-seller must have had a supplier/purchaser relationship with the wholesale purchaser-consumer or end-user on March 1, 1979.
(2) Who May Apply: A wholesale purchaser-consumer or an end-user seeking an assignment from the state set-aside system to meet a hardship or emergency requirement, and a wholesale purchaser-reseller seeking an assignment to enable him to supply such wholesale purchaser-consumer and/or end-user, may apply.
(3) Where to File: All applications under these programs shall be made to the State Office, Department of Energy, Room 102 Labor and Industries Building, Salem, OR 97310, Attention: Allocation Officer.
(4) What to File: Applications for assignment from the state set-aside system may be by the appropriate State Office form, or other written communication, or by oral (including telephonic) request. Oral applications must be supplemented with a written certification of the hardship or emergency circumstances within ten days. The federal and state penalties for falsifying information for written applications also apply to information submitted as oral applications. The State Office may require any reasonable information needed to verify the validity of the applicant's claims.
(5) Content of Application:
(a) An applicant shall provide sufficient information to enable the State Office to determine that the proposed allocation satisfies the objective of the EPAA and 10 CFR Part 211. An applicant must file its application on the application form required by the State Office;
(b) If the applicant is a wholesale purchaser-reseller, it shall describe the wholesale purchaser-consumers and end-users that will be supplied and their hardship and emergency requirements;
(c) The State Office may return incomplete applications or require additional information needed to verify information contained in an application.
(6) State Office Evaluation:
(a) Investigation: The State Office may initiate an investigation of the application and utilize in its evaluation any relevant facts obtained. The applicant shall be afforded an opportunity to respond to any third-person submissions obtained. The State Office may convene a conference if it considers that doing so will advance its evaluation;
(A) Assignments shall be made only to applicants who demonstrate hardship or emergency requirements. Pursuant to 10 CFR Subsection 211.103(b), the following uses are considered top priority uses: essential military and readiness-oriented operations of the Department of Defense; agricultural production; emergency services; energy production; sanitation services; telecommunication services; passenger transportation services; aviation ground support vehicles and equipment; and cargo, freight and mail hauling by truck. The State Office will consider these priorities for both gasoline and diesel oil. While considering these priorities, the State Office will also give due consideration to the degree of hardship or emergency suffered, or likely to be suffered, if an assignment is not given. The State Office may also take action to avoid localized or regional hardships which can be alleviated by state assignments. Any situation which poses an immediate threat to life, health, or safety will take presidence over other priorities;
(B) The State Office may use the set-aside for motor gasoline to meet the supply needs of motor gasoline retailers who have experienced or will experience a supply shortage resulting in hardship or economic dislocation. Gasoline retailers applying for assignments of volumes to alleviate a supply shortage must follow the procedures set forth in these rules. Assignments to meet the hardship and emergency requirements of wholesale purchaser-consumers and end-users will be given priority by the State Office over assignments to motor gasoline retailers;
(C) Any assignment ordered by the State Office shall conform to the requirements of Section 4(b)(1) of the EPAA and 10 CFR 211.17.
(7) State Action:
(a) All hardship and emergency applications for assignment from the state set-aside shall be filed with and resolved by the State Office in accordance with these rules. Applicants shall identify their existing supplier, or if they do not have a supplier, make reasonable efforts to locate two suppliers which could provide the allocated product. The State Office may assign a supplier to an applicant who does not have a supplier or whose existing supplier terminates service;
(b) If the State Office approves a hardship or emergency application, it shall assign a prime supplier and an amount from the state set-aside to the applicant. To determine an appropriate prime supplier, the State Office may coordinate with the state representative of the prime suppliers;
(c) The State Office has the authority to cross-assign end-users or wholesale purchasers, if such cross-assignment does not result in undue hardship and is necessary to alleviate inadequate supply allocation problems consistent with federal regulations;
(d) Any order by the State Office is binding on the applicant and its supplier and is effective immediately upon issuance;
(e) The final decision of the State Office as embodied in the order issued at the completion of any appellate proceeding regarding an application for assignment due to hardship or emergency requirements shall be subject to judicial review as prescribed by Section 211 of the Economic Stabilization Act of 1970.
NOTE: With respect to final decisions on middle distillates, the final decision of the State Office may be appealed to the Region X Office of the US DOE.
(8) Authorizing Document: The State Office shall issue to an applicant granted an assignment an authorizing document, and shall provide a copy to the designated state representative of the assigned prime supplier and to the designated distributor, jobber or reseller, if any. The authorizing document is effective upon issuance, and represents a call on the prime supplier's set-aside volumes for the month of issuance, irrespective of the fact that delivery of the product subject to the authorizing document cannot be made until the following month. An order shall be issued by the State Office for all applications unless the application is withdrawn by the applicant or unless the applicant fails to complete the application as required by section (5) of this rule. If not presented to either the prime supplier or its designated local distributor within ten days of issuance, the document expires.
(9) Decision and Order:
(a) The State Office shall issue its decision in the form of an order denying or granting the application. (For purposes of this section, an order may be the "authorizing document" referred to in section (8) of this rule.);
(b) The order shall include a brief written statement summarizing its factual and legal bases, and shall provide that any person aggrieved by it may file an appeal with the State Office;
(c) The order shall state that it is effective upon issuance and, if affirmative, that it expires within ten days unless presented to the prime supplier or its designated local representative;
(d) The State Office shall provide a copy of the order upon the applicant, and the prime supplier's designated state representative.
(a) If the State Office fails to take action on an application under the state set-aside program within ten days of filing or, under the assignment to new end-users program, within 90 days of filing, it shall be deemed denied in all respects, and the applicant may appeal;
(b) The State Office may temporarily suspend the running of the ten-day period if it finds that additional information is necessary or that the application was improperly filed. The temporary suspension shall remain in effect until the State Office deems the deficiencies cured and so notifies the applicant.
(11) Appeal: Any person aggrieved by the state set-aside assignment order may file an appeal with the State Office in accordance with the procedures established in these rules. The appeal shall be filed within 15 days of services of the order in a set-aside proceeding and within 30 days of service of the order in an assignment proceeding. There has not been an exhaustion of administrative remedies until an appeal has been filed and the appellate proceeding is completed by the issuance of an order granting or denying the appeal.
Prime Supplier's Responsibilities
(1) State Representative: Each prime supplier shall notify in writing the State Office of its designated representative, which shall be a firm with a place of business in Oregon. The State Office shall, to the maximum extent possible, consult with the designated representative prior to issuing any authorizing document affecting state set-aside volumes to be provided by the prime supplier.
(2) State Set-Aside Volume:
(a) A prime supplier shall inform the State Office and the Region X Office of US DOE monthly in accordance with 10 CFR 211.222(b) of the estimated volume of motor gasoline and middle distillate subject to state set-aside to be sold into Oregon for consumption within Oregon;
(b) At the time of issuance of these rules state set-aside percentage level is five percent of motor gasoline and four percent of middle distillates. Any change in these percentages will be published by the State Office. The State Office has the authority, subject to federal approval, to revise the set-aside percentage level upwards or downwards as the supply situation requires;
(c) The set-aside volume available for a particular month shall be the sum of the amounts calculated by multiplying the state set-aside percentage level by each prime supplier's estimated portion of its total supply for that month which will be sold into Oregon's distribution system for consumption within Oregon.
(3) Release of State Set-Aside:
(a) All prime suppliers shall supply products from their state set-aside volume each month, as directed by the State Office, based on the actual volume delivered by the suppliers to purchasers in the state. Suppliers shall provide the applicant with the assigned amount of an allocated product from any convenient local distributor. Wholesale purchaser-resellers of prime suppliers shall honor authorizing documents upon presentation, and shall not delay deliveries required by the authorizing document while confirming such deliveries with the prime suppliers, and shall receive from its supplier an equivalent volume of the allocated product;
(b) Any portion of a state set-aside volume which is not allocated during a particular month or which is not subject to an authorizing document issued no later than the last day of that month is part of the prime supplier's total supply for the subsequent month, and shall be distributed according to the allocation procedures in 10 CFR Part 211;
(c) At any time during a month, the State Office may order part or all of a prime supplier's set-aside volume released for normal distribution;
(d) The State Office may designate geographical areas within Oregon as suffering from an intra-state supply imbalance, and may order some or all of the prime suppliers with purchasers within such geographical areas to release part or all of their set-aside volume through their normal distribution systems to increase the allocations within such areas;
(e) Orders issued by the State Office are effective upon presentation to the designated state representative, and represent a call on the prime supplier's set-aside volumes for the month of issuance even though delivery cannot be made until the following month.
Appeals of Allocation Officer's Order
(1) Who may file: The applicant, or any other person aggrieved by an order issued by an Allocation Officer may appeal.
(2) What to file:
(a) An appellant shall file a written, signed, and clearly labeled "Appeal of Order" with the Reviewing Office, State Office, Oregon Department of Energy, 102 Labor and Industries Building, Salem, OR 97310;
(b) The appeal shall contain a citation to the order appealed from, a concise statement of all factual and legal grounds upon which it is brought, and a description of the relief sought. If the appeal includes a request for relief based on significantly changed circumstances, there shall be a complete description of the events, acts, or transactions that comprise the significantly changed circumstances, and the appellant shall state why, if the significantly changed circumstance is new or newly discovered facts, such facts were not or could not have been presented during the prior proceeding.
(a) The appellant shall mail a copy of the appeal and any other documents relating thereto, to each person who it reasonably anticipates will be aggrieved by the action sought, including those who participated in the proceeding before the Allocations Officer. The copy shall be accompanied by a statement that the person may submit comments regarding the appeal to the Reviewing Officer within ten days. The appeal shall include certification to the State Office that the appellant has complied with the requirements of this paragraph and shall include the names and addresses of each person to whom a copy of the appeal was sent;
(b) The Reviewing Officer shall serve notice on any other person readily identifiable by it as one who will be aggrieved by the action sought, inviting written comments regarding the appeal within ten days of service of that notice;
(c) Any person submitting written comments to the Reviewing Officer shall send a copy thereof to the appellant, and shall certify to the Reviewing Officer that it has done so;
(d) The appellant shall state whether he requests a conference with the Reviewing Officer regarding the appeal.
(4) Reviewing Officer's Evaluation:
(A) The Reviewing Officer may initiate an investigation of any statement in an appeal and utilize in its evaluation any relevant facts obtained by such investigation. The Reviewing Officer may convene a conference or hearing to advance its evaluation;
(B) If the Reviewing Officer determines that there is insufficient information upon which to base a decision and if, upon request, the necessary additional information is not submitted, the Reviewing Officer may dismiss the appeal with leave to amend within a specified time. If the appellant fails to provide the notice required by 10 CFR 205.104, the Reviewing Officer may dismiss the appeal without prejudice.
(A) An appeal may be summarily denied if:
(i) It is not filed in a timely manner, unless good cause is shown; or
(ii) It is defective on its fact for failure to state and to present facts, and legal argument in support thereof, that the Allocation Officer's action was erroneous in fact or in law, or that it was arbitrary or capricious;
(iii) The Reviewing Officer may deny all appeals if the appellant does not establish that:
(I) The appeal was filed by an aggrieved person;
(II) The Allocation Officer's action was erroneous in face or in law; or
(III) The Allocation Officer's action was arbitrary or capricious.
(5) Decision and Order:
(a) The Reviewing Officer shall render its decision by issuance of an appropriate order, which may include the modification of the order that is the subject of the appeal;
(b) 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 appellant may seek judicial review;
(c) The Reviewing Officer shall serve a copy of the order upon the appellant, and any other person who participated in the proceeding.
Stays Pending Appeal
(1) Scope: An application for a stay will only be considered:
(a) Incident to or pending an appeal from an order of the Allocation Officer; or
(b) Pending judicial review.
(2) What to file:
(a) A person filing under this subpart shall file a written, signed and clearly labeled "Application for Stay" with the Reviewing Officer;
(b) The application shall contain a full and complete statement of all relevant facts pertaining to the act or transaction, including, but not limited to, all information that related to the criteria in OAR 330-080-0030(4)(b).
(a) When administratively feasible, the Reviewing Officer shall notify and accept written comments from each person readily identifiable as one who would be aggrieved, that the applicant has filed for a stay;
(b) Any person submitting written comments to the Reviewing Officer shall send the applicant a copy thereof, and shall certify to the Reviewing Officer that it has complied with the requirements of this subsection;
(c) The applicant shall state whether it requests a conference regarding the application.
(4) Reviewing Officer's Evaluation:
(A) The Reviewing Officer may initiate an investigation of any statement in an application and utilize in its evaluation any relevant facts obtained. The Reviewing Officer may solicit and accept submissions from third persons relevant to any application provided that the applicant is afforded an opportunity to respond to all third-person submissions. In evaluating an application, the Reviewing Officer may consider any other source of information. The Reviewing Officer may convene a conference to advance its evaluation of the application;
(B) The Reviewing Office shall process applications for stay as expeditiously as possible. When administratively feasible, the Reviewing Officer shall grant or deny the application for stay within ten business days after receipt of the application.
(b) Criteria. The grounds for granting a stay are:
(A) A showing that irreparable injury will result in the event that the stay is denied;
(B) A showing that denial of the stay will result in a more immediate serious hardship or gross inequity to the applicant than to the other persons affected by the proceeding;
(C) A showing that it would be desirable for public policy or other reasons to preserve the status quo pending a decision on the merits of the appeal or exception;
(D) A showing that it is impossible for the applicant to fulfill the requirements of the original order; and
(E) A showing that there is a likelihood of success on the merits.
(5) Decision and Order:
(a) Upon consideration of the application and other relevant information received or obtained during the proceeding, the Reviewing Officer shall issue an order granting or denying the application;
(b) The order shall include a written statement setting forth the relevant facts and the legal basis of the decision, and the terms and conditions of the stay;
(c) The Reviewing Officer shall serve a copy of the order upon the applicant, any other person who participated in the proceeding and upon any other person readily identifiable by the Reviewing Officer as one who is aggrieved by such decision.
(6) Temporary Stay:
(a) The Reviewing Officer may issue an order granting a temporary stay if it determines that an applicant has made a compelling showing that it would incur irreparable injury unless immediate stay relief is granted pending the submission of or determination on an application for stay pursuant to this subpart. An application for stay shall describe the facts and circumstances which support the applicant's claim that it will incur irreparable injury unless immediate stay relief is granted. The Reviewing Officer on its own initiative may also issue an order granting a temporary stay upon a finding that a person will incur irreparable injury if such an order is not granted;
(b) An order granting a temporary stay shall expire by its terms within such time after issuance, not to exceed 20 days, as the Reviewing Officer specifies in the order, except that it shall expire automatically five days following its issuance if the applicant fails within that period to file an application for stay, unless within that period the Reviewing Officer, for good cause shown, extends the time during which the applicant may file and application for stay.
State Archives • 800 Summer St. NE • Salem, OR 97310