Procedures for the Acquisition of Petroleum for the Strategic Petroleum Reserve, 47652-47659 [2022-16081]
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Federal Register / Vol. 87, No. 149 / Thursday, August 4, 2022 / Proposed Rules
(i) Approving loans that do not meet
Agency guidelines.
(ii) Entering data into the Agency’s
automated underwriting system which
is not supported by documentation
retained by the lender.
(iii) Unacceptable portfolio
performance as evidenced by
delinquency, loss claim, default rates,
material deficiencies, or any other
performance metric established by the
Agency; and
(iv) Noncompliance with other
requirements described in § 3555.51, or
if the Agency determines that other
good cause exists.
(2) Termination of a Delegated
Lender’s participation in the SFHGLP
under § 3555.52 automatically revokes
Delegated Lender status without
separate Agency action under paragraph
3555.52(g).
(g) Revocation of Delegated Status.
Delegated Lenders will retain delegated
status until revoked by the Agency or
withdrawn by the lender. If the Agency
revokes the delegated authority of a
Delegated Lender, the Delegated Lender
will be given appeal rights as specified
in § 3555.4. This is distinct from
termination from participation in the
SFHGLP under § 3555.52.
(h) Administration of Delegated
Program. The Agency may adjust,
modify, or cancel the Delegated Lender
program based on overall program
considerations such as budget, program
performance, and program integrity.
§ § 3555.56–3555.99
[Reserved]
4. Reserve §§ 3555.56–3555.99.
*
*
*
*
*
■
Subpart C—Loan Requirements
§ 3555.107
[Amended]
5. Amend § 3555.107 by removing
paragraph (i)(5).
*
*
*
*
*
■
Joaquin Altoro,
Administrator, Rural Housing Service.
[FR Doc. 2022–16637 Filed 8–3–22; 8:45 am]
BILLING CODE 3410–XV–P
DEPARTMENT OF ENERGY
10 CFR Part 626
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RIN 1901–AB56
Procedures for the Acquisition of
Petroleum for the Strategic Petroleum
Reserve
Office of Petroleum Reserves,
Department of Energy.
ACTION: Notice of proposed rulemaking
and request for comment.
AGENCY:
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The Energy Policy Act of 2005
directed the Secretary of Energy to
develop procedures for the acquisition
of petroleum products for the Strategic
Petroleum Reserve (‘‘SPR’’). Pursuant to
that direction, the Department of Energy
(‘‘DOE’’ or the ‘‘Department’’)
promulgated the Procedures for
Acquisition of Petroleum for the
Strategic Petroleum Reserve. Over the
intervening 16 years, the existing
regulations have become outdated due
to changes in statutory authority, agency
practice, and market dynamics. In this
notice of proposed rulemaking
(‘‘NOPR’’), DOE proposes to amend the
procedures for the acquisition of
petroleum products for the SPR to: more
closely align the regulatory language
with the applicable statutory language;
remove outdated procedures for
acquisition under the royalty-in-kind
program; add procedures for acquisition
by exchange to better reflect petroleum
product acquisition operations as
conducted by the Office of Petroleum
Reserves; and increase the Department’s
flexibility in structuring acquisitions.
DATES: DOE will accept comments, data,
and information regarding this NOPR no
later than September 6, 2022.
Comments regarding the likely
competitive impact of the proposed
standard are to be sent to the DOE by
the methods set forth in the ADDRESSES
section on or before September 6, 2022.
ADDRESSES: Interested persons are
encouraged to submit comments using
the Federal eRulemaking Portal at
www.regulations.gov. Follow the
instructions for submitting comments.
Alternatively, interested persons may
submit comments, identified by RIN
1901–AB56, by any of the following
methods:
1. Federal eRulemaking Portal:
www.regulations.gov. Follow the
instructions for submitting comments.
2. Email: sprassistance@hq.doe.gov.
Include the RIN 1901–AB56 in the
subject line of the message.
3. Postal Mail: U.S. Department of
Energy, Office of the General Counsel
(GC–33), Room 6B–159, 1000
Independence Avenue SW, Washington,
DC 20585.
4. Hand Delivery/Courier: U.S.
Department of Energy, Room 6B–159,
1000 Independence Avenue SW,
Washington, DC 20585.
No telefacsimiles (faxes) will be
accepted. For detailed instructions on
submitting comments and additional
information on the rulemaking process,
see section III, Public Participation, for
details.
Docket: The docket, which includes
Federal Register notices, comments,
SUMMARY:
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and other supporting documents/
materials, is available for review at
www.regulations.gov. All documents in
the docket are listed in the
www.regulations.gov index. However,
some documents listed in the index,
such as those containing information
that is exempt from public disclosure,
may not be publicly available.
The docket web page can be found at
the www.regulations.gov web page
associated with RIN 1901–AB56. The
docket web page contains simple
instructions on how to access all
documents, including public comments,
in the docket. See section III, Public
Participation, for information on how to
submit comments through
www.regulations.gov.
Mr.
Thomas McGarry, U.S. Department of
Energy, Office of Petroleum Reserves,
Office of Fossil Energy and Carbon
Management, Forrestal Building, Room
3G–024, 1000 Independence Avenue
SW, Washington, DC 20585; (202) 586–
8197, email: thomas.mcgarry@
hq.doe.gov; or Mr. Edward Toyozaki,
U.S. Department of Energy, Office of the
General Counsel, Forrestal Building,
Room 6B–159, 1000 Independence
Avenue SW, Washington, DC 20585;
(202) 586–0126, email:
edward.toyozaki@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
I. Background and Introduction
II. Discussion of Proposed Rule
III. Public Participation
IV. Regulatory Review
V. Approval of the Office of the Secretary
I. Background and Introduction
The SPR was established by the
Energy Policy and Conservation Act
(‘‘EPCA’’), (Pub. L. 94–163), to store
petroleum products to diminish the
impact of disruptions on petroleum
supplies and to carry out the obligations
of the United States under the
International Energy Program. (42 U.S.C.
6231 et seq.) Section 160 of EPCA
authorizes the Secretary of Energy to
acquire petroleum products for the SPR.
Subsequently, the Energy Policy Act of
2005, (Pub. L. 109–58), amended EPCA
and directed the Secretary of Energy to
develop, with the opportunity for public
notice and comment, procedures for the
acquisition of petroleum products for
the SPR (42 U.S.C. 6240). The principal
method for acquiring SPR petroleum
products is by purchase, but SPR
petroleum may also be acquired via
exchange. (42 U.S.C. 6240(a)) On
November 8, 2006, and pursuant to
EPCA, as amended by the Energy Policy
Act of 2005, DOE established
procedures for the acquisition of SPR
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petroleum at 10 CFR part 626. 71 FR
65376 (‘‘2006 final rule’’). The 2006
final rule included provisions regarding
the direct purchase, exchange, and
transfer of royalty oil from the
Department of the Interior (‘‘DOI’’).
Subsequent to DOE promulgating the
2006 final rule, the Government
Accountability Office and the DOI
Inspector General published several
reports between 2008 and 2009 on the
shortcomings of and personnel
misconduct related to the royalty-inkind program, and, as a result, the DOI
terminated its royalty-in-kind program
in 2010. Then, in 2013, with section
306(a) of the Bipartisan Budget Act of
2013, Congress repealed DOE’s
authority to conduct SPR acquisitions
under the royalty-in-kind program that
was incorporated into the 2006 final
rule. However, 10 CFR part 626 has not
been updated since it was promulgated
by DOE in the 2006 final rule, and, thus,
does not reflect the intervening changes
to the authorizing statutory authority.
Additionally, as DOE has had
numerous opportunities to conduct
exchanges, mostly in an emergency
exchange capacity, DOE is in a position
to rewrite these regulations to both
provide more clarity and better reflect
operational realities.
Lastly, in light of changing petroleum
product market dynamics, the
Department intends to align the
acquisition regulations more closely
with the statutory language of 42 U.S.C.
6240 and provide the Secretary with
additional flexibility in structuring
acquisitions.
II. Discussion of Proposed Rule
The proposed rule would revise 10
CFR part 626 in several respects. First,
the proposed rule would update
language throughout part 626 to more
closely align with the statutory language
found in Section 160 of EPCA. This
includes updating the definitions for
‘‘DOE’’, ‘‘Exchange’’, and ‘‘Strategic
Petroleum Reserve’’, while adding new
definitions for ‘‘Premium’’, ‘‘Requestor’’,
and ‘‘Solicitation’’. The definition
pertaining to ‘‘DOI’’ would also be
struck. These changes would provide
more clarity and maintain continuity
throughout the part while supporting
other proposed changes.
Second, because Congress repealed
DOE’s authority for it in 2013, all
references to the royalty-in-kind
program would be removed. This
includes removal of the procedures for
acquisition under the royalty-in-kind
program currently at 10 CFR 626.7.
Third, the proposed rule would codify
procedures for the exchange of
petroleum products at a revised 10 CFR
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626.7, as well as add references to
‘‘exchange’’ throughout part 626, as
appropriate. These proposed changes
are intended to reflect current
operational practices of the SPR. Since
1996, in accordance with statutory
authority in Sections 159 and 160 of
EPCA, DOE has conducted over a dozen
emergency exchanges with private
industry. In these emergency exchanges,
upon request from refiners and
verification of the request by DOE, the
SPR provides emergency barrels of
petroleum product to refiners; in return,
the requesting refiners later provide the
SPR the original number of barrels plus
extra barrels called a ‘‘premium.’’ In
addition to the emergency exchanges by
request, since 2000, DOE has twice
utilized the exchange authority to
conduct solicitations for exchange,
whereby the general public may bid to
contract to accept barrels of SPR
petroleum products in the present and
return those barrels plus a premium in
the future. DOE is proposing to codify
these long-standing procedures into the
acquisition regulations.
Fourth, the proposed rule would
amend 10 CFR 626.5 and 626.6 to
increase flexibility for DOE to enter into
contracts for the purchase of petroleum
products, consistent with the
requirements and objectives of section
160 of EPCA. These changes ensure that
DOE continues to acquire petroleum
products in accordance with the
competitive principles of the Federal
Acquisition Regulations and the DOE
Acquisition Regulations, while
providing DOE the flexibility to use
either fixed-price or index-priced
contracts for future petroleum product
acquisitions. DOE is proposing these
changes because the current acquisition
regulations, including the requirement
that DOE acquire oil in accordance with
the Federal Acquisition Regulations and
the requirement to use a price index to
set purchase prices, unnecessarily
restrict DOE’s flexibility to procure
petroleum products using fixed price
contracts, notwithstanding the fact that
there may be circumstances in which a
fixed price acquisition would better
meet the statutory objectives of EPCA.
Lastly, the proposed rule would add
10 CFR 626.9 to implement 42 U.S.C.
6240(f). This final proposed change has
been included because, while the
Department has had the statutory
authority to suspend previously
announced or contracted acquisitions of
petroleum products or divert the
injection of petroleum products into the
SPR when there is a perceived
imminent severe energy supply
interruption, to date, this authority has
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not been incorporated into any existing
regulations.
III. Public Participation
DOE will accept comments, data, and
information regarding this NOPR on or
before the date provided in the DATES
section at the beginning of this proposed
rule. Interested parties may submit
comments, data, and other information
using any of the methods described in
the ADDRESSES section at the beginning
of this document.
Submitting comments via
www.regulations.gov. The
www.regulations.gov web page will
require you to provide your name and
contact information. Your contact
information will not be publicly
viewable except for your first and last
names, organization name (if any), and
submitter representative name (if any).
If your comment is not processed
properly because of technical
difficulties, DOE will use this
information to contact you. If DOE
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, DOE may not be
able to consider your comment.
However, your contact information
will be publicly viewable if you include
it in the comment itself or in any
documents attached to your comment.
Any information that you do not want
to be publicly viewable should not be
included in your comment, nor in any
document attached to your comment.
Otherwise, persons viewing comments
will see only first and last names,
organization names, correspondence
containing comments, and any
documents submitted with the
comments.
Do not submit to www.regulations.gov
information the disclosure of which is
restricted by statute, such as trade
secrets and commercial or financial
information (hereinafter referred to as
Confidential Business Information
(‘‘CBI’’)). Comments submitted through
www.regulations.gov cannot be claimed
as CBI. Comments received through the
website will waive any CBI claims for
the information submitted. For
information on submitting CBI, see the
Confidential Business Information
section below.
DOE processes submissions made
through www.regulations.gov before
posting. Normally, comments will be
posted within a few days of being
submitted. However, if large volumes of
comments are being processed
simultaneously, your comment may not
be viewable for up to several weeks.
Please keep the comment tracking
number that www.regulations.gov
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provides after you have successfully
uploaded your comment.
Submitting comments via email, hand
delivery/courier, or postal mail.
Comments and documents submitted
via email, hand delivery/courier, or
postal mail also will be posted to
www.regulations.gov. If you do not want
your personal contact information to be
publicly viewable, do not include it in
your comment or any accompanying
documents. Instead, provide your
contact information in a cover letter.
Include your first and last names, email
address, telephone number, and
optional mailing address. The cover
letter will not be publicly viewable as
long as it does not include any
comments.
Include contact information each time
you submit comments, data, documents,
and other information to DOE. If you
submit via postal mail or hand delivery/
courier, please provide all items on a
CD, if feasible, in which case it is not
necessary to submit printed copies. No
telefacsimiles (faxes) will be accepted.
Comments, data, and other
information submitted to DOE
electronically should be provided in
PDF (preferred), Microsoft Word or
Excel, WordPerfect, or text (ASCII) file
format. Provide documents that are
written in English, and that are free of
any defects or viruses. Documents
should not contain special characters or
any form of encryption and, if possible,
they should carry the electronic
signature of the author.
Confidential Business Information.
Pursuant to 10 CFR 1004.11, any person
submitting information that he or she
believes to be confidential and exempt
by law from public disclosure should
submit via email, postal mail, or hand
delivery/courier two well-marked
copies: One copy of the document
marked ‘‘confidential’’ including all the
information believed to be confidential,
and one copy of the document marked
‘‘non-confidential’’ that deletes the
information believed to be confidential.
Submit these documents via email or on
a CD, if feasible. DOE will make its own
determination about the confidential
status of the information and will treat
it according to its determination. It is
DOE’s policy that all comments,
including any personal information
provided in the comments, may be
included in the public docket, without
change and as received, except for
information deemed to be exempt from
public disclosure.
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IV. Regulatory Review
A. Executive Order 12866
This proposed rule has been
determined to not be a significant
regulatory action under Executive Order
12866, ‘‘Regulatory Planning and
Review.’’ 58 FR 51735 (October 4, 1993).
Accordingly, this action was not subject
to review under that Executive order by
the Office of Information and Regulatory
Affairs (‘‘OIRA’’) of the Office of
Management and Budget (‘‘OMB’’).
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires the
preparation of an initial regulatory
flexibility analysis for any rule that by
law must be proposed for public
comment, unless the agency certifies
that the rule, if promulgated, will not
have a significant economic impact on
a substantial number of small entities.
As required by Executive Order 13272,
Proper Consideration of Small Entities
in Agency Rulemaking, 67 FR 53461
(August 16, 2002), DOE published
procedures and policies on February 19,
2003, to ensure that the potential
impacts of its rules on small entities are
properly considered during the
rulemaking process, 68 FR 7990. The
Department has made its procedures
and policies available on the Office of
General Counsel’s website:
www.energy.gov/gc/office-generalcounsel.
The proposed rule would update the
procedures DOE utilizes for the
acquisition of petroleum products for
the SPR, change definitions, and remove
references to the repealed royalty-inkind program. DOE has reviewed the
proposed changes under the provisions
of the Regulatory Flexibility Act and the
procedures and policies published on
February 19, 2003. These proposed
procedures are procedural and not
designed to set the terms or conditions
of an acquisition and apply only to
entities that are engaged in the sale of
petroleum products to the Strategic
Petroleum Reserve. Historically,
Strategic Petroleum Reserve acquisitions
have typically been large volume
acquisitions, and usually filled by larger
entities operating in the petroleum
industry. Therefore, the proposed
procedures are unlikely to directly affect
small businesses or other small entities.
For these reasons, DOE certifies that this
proposed rule would not have a
significant economic impact on a
substantial number of small entities.
Accordingly, DOE has not prepared a
regulatory flexibility analysis for this
rulemaking. DOE’s certification and
supporting statement of factual basis
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will be provided to the Chief Counsel
for Advocacy of the Small Business
Administration for review under 5
U.S.C. 605(b).
C. Paperwork Reduction Act of 1995
The proposed rule would impose no
new information or record keeping
requirements. Accordingly, OMB
clearance is not required under the
Paperwork Reduction Act (44 U.S.C.
3501 et seq.).
D. Review Under the National
Environmental Policy Act of 1969
Per 10 CFR 1021.410(a), DOE has
determined that promulgation of these
regulations fall into a class of actions
that does not individually or
cumulatively have a significant impact
on the human environment as set forth
under DOE’s regulations implementing
the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.).
Furthermore, this proposed rulemaking
is covered under the Categorical
Exclusion found in DOE’s National
Environmental Policy Act regulations at
paragraph A6 of appendix A to subpart
D, 10 CFR part 1021, which applies to
rulemakings that are strictly procedural.
Accordingly, neither an EIS nor an EA
is required.
E. Executive Order 13132
Executive Order 13132, ‘‘Federalism,’’
64 FR 43255 (August 10, 1999), imposes
certain requirements on agencies
formulating and implementing policies
or regulations that preempt State law or
that have federalism implications. The
Executive order requires agencies to
examine the constitutional and statutory
authority supporting any action that
would limit the policymaking discretion
of the States and to carefully assess the
necessity for such actions. DOE
examined this proposed rule and
determined that it would not preempt
State law and would not have a
substantial direct effect on the States, on
the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of Government. No further action
is required by Executive Order 13132.
F. Executive Order 13175
Executive Order 13175, ‘‘Consultation
and Coordination with Indian Tribal
Governments,’’ 65 FR 67249, November
9, 2000, applies to agency regulations
that have Tribal implications, that is,
regulations that have substantial direct
effects on one or more Indian tribes, on
the relationship between the Federal
Government and Indian Tribes, or on
the distribution of power and
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responsibilities between the Federal
Government and Indian Tribes. The
proposed rule has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13175. Because this proposed rule
would not significantly or uniquely
affect the communities of the Indian
tribal governments or impose
substantial direct compliance costs on
them, the funding and consultation
requirements of Executive Order 13175
do not apply.
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G. Review Under Executive Order 12988
With respect to the review of existing
regulations and the promulgation of
new regulations, section 3(a) of
Executive Order 12988, ‘‘Civil Justice
Reform,’’ 61 FR 4729 (February 7, 1996),
imposes on Federal agencies the general
duty to adhere to the following
requirements: (1) eliminate drafting
errors and ambiguity; (2) write
regulations to minimize litigation; and
(3) provide a clear legal standard for
affected conduct, rather than a general
standard and promote simplification
and burden reduction. Section 3(b) of
Executive Order 12988 specifically
requires that executive agencies make
every reasonable effort to ensure that the
regulation: (1) clearly specifies its
preemptive effect, if any; (2) clearly
specifies any effect on existing Federal
law or regulation; (3) provides a clear
legal standard for affected conduct,
while promoting simplification and
burden reduction; (4) specifies its
retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses
other important issues affecting clarity
and general draftsmanship under any
guidelines issued by the Attorney
General. Section 3(c) of Executive Order
12988 requires executive agencies to
review regulations in light of applicable
standards in section 3(a) and section
3(b) to determine whether they are met
or it is unreasonable to meet one or
more of them. DOE has completed the
required review and determined that, to
the extent permitted by law, the
proposed rule would meet the relevant
standards of Executive Order 12988.
H. Unfunded Mandates Reform Act of
1995
Title II of the Unfunded Mandates
Reform Act of 1995 (‘‘UMRA’’) (Pub. L.
104–4) requires each Federal agency to
assess the effects of Federal regulatory
actions on State, local, and tribal
governments and the private sector. For
a proposed regulatory action likely to
result in a rule that may cause the
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector of $100 million or more
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in any one year (adjusted annually for
inflation), section 202 of UMRA requires
a Federal agency to publish a written
statement that estimates the resulting
costs, benefits, and other effects on the
national economy (2 U.S.C. 1532(a) and
(b)). UMRA also requires a Federal
agency to develop an effective process
to permit timely input by elected
officers of State, local, and tribal
governments on a proposed ‘‘significant
intergovernmental mandate’’ and
requires an agency plan for giving notice
and opportunity for timely input to
potentially affected small governments
before establishing any requirements
that might significantly or uniquely
affect small governments. On March 18,
1997, DOE published a statement of
policy on its process for
intergovernmental consultation under
UMRA (62 FR 12820) (also available at
www.energy.gov/gc/office-generalcounsel). DOE examined this proposed
rule according to UMRA and its
statement of policy and has determined
that the proposed rule contains neither
an intergovernmental mandate nor a
mandate that may result in the
expenditure of $100 million or more in
any year by State, local, and tribal
governments, in the aggregate, or by the
private sector. Accordingly, no further
assessment or analysis is required under
UMRA.
I. Treasury and General Government
Appropriations Act of 1999
Section 654 of the Treasury and
General Government Appropriations
Act of 1999 (Pub. L. 105–277) requires
Federal agencies to issue a Family
Policymaking Assessment for any
proposed rule that may affect family
well-being. This proposed rule would
not have any impact on the autonomy
or integrity of the family as an
institution. Accordingly, DOE has
concluded that it is not necessary to
prepare a Family Policymaking
Assessment.
J. Treasury and General Government
Appropriations Act, 2001
The Treasury and General
Government Appropriations Act, 2001
(44 U.S.C. 3516 note) provides for
agencies to review most disseminations
of information to the public under
guidelines established by each agency
pursuant to general guidelines issued by
OMB. OMB’s guidelines were published
at 67 FR 8452 (February 22, 2002), and
DOE’s guidelines were published at 67
FR 62446 (October 7, 2002). DOE has
reviewed the proposed rule under the
OMB and DOE guidelines and has
concluded that it is consistent with
applicable policies in those guidelines.
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K. Executive Order 13211
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use,’’ 66 FR 28355 (May
22, 2001), requires Federal agencies to
prepare and submit to OIRA and OMB,
a Statement of Energy Effects for any
proposed significant energy action. A
‘‘significant energy action’’ is defined as
any action by an agency that
promulgated or is expected to lead to
promulgation of a final rule, and that:
(1) is a significant regulatory action
under Executive Order 12866, or any
successor order; and (2) is likely to have
a significant adverse effect on the
supply, distribution, or use of energy, or
(3) is designated by the Administrator of
OIRA as a significant energy action. For
any proposed significant energy action,
the agency must give a detailed
statement of any adverse effects on
energy supply, distribution, or use
should the proposal be implemented,
and of reasonable alternatives to the
action and their expected benefits on
energy supply, distribution, and use.
This proposed rule would update DOE’s
acquisition of petroleum product
procedures for the SPR to align the
regulatory language more closely with
existing statutory language and current
practice. Accordingly, the proposed rule
would also update definitions, as
appropriate, for the newly aligned
regulatory language. This proposed rule,
therefore, does not meet any of the three
criteria listed above and would not have
a significant adverse effect on the
supply, distribution, or use of energy
and is therefore not a significant
regulatory action. Accordingly, DOE has
not prepared a Statement of Energy
Effects.
V. Approval of the Office of the
Secretary
The Secretary of Energy has approved
publication of this notice of proposed
rulemaking and request for comment.
List of Subjects in 10 CFR Part 626
Government contracts, Oil and gas
reserves, Strategic and critical materials.
Signing Authority
This document of the Department of
Energy was signed on July 21, 2022, by
Bradford J. Crabtree, Assistant Secretary
for Fossil Energy and Carbon
Management, pursuant to delegated
authority from the Secretary of Energy.
That document with the original
signature and date is maintained by
DOE. For administrative purposes only,
and in compliance with requirements of
the Office of the Federal Register, the
undersigned DOE Federal Register
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Liaison Officer has been authorized to
sign and submit the document in
electronic format for publication, as an
official document of the Department of
Energy. This administrative process in
no way alters the legal effect of this
document upon publication in the
Federal Register.
Signed in Washington, DC, on July 22,
2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S.
Department of Energy.
For reasons stated in the preamble,
DOE proposes to revise part 626 in
chapter II of title 10 of the Code of
Federal Regulations as set forth below:
PART 626—PROCEDURES FOR
ACQUISITION OF PETROLEUM FOR
THE STRATEGIC PETROLEUM
RESERVE
Sec.
626.1 Purpose.
626.2 Definitions.
626.3 Applicability.
626.4 General acquisition strategy.
626.5 Acquisition procedures—general.
626.6 Acquiring petroleum products by
purchase.
626.7 Acquiring petroleum products by
exchange.
626.8 Deferrals of contractually scheduled
deliveries.
626.9 Suspension and pre-drawdown
diversion.
Authority: 42 U.S.C. 6240(c); 42 U.S.C.
7101, et seq.
§ 626.1
Purpose.
This part establishes the procedures
for acquiring petroleum products for,
and deferring contractually scheduled
deliveries to, the Strategic Petroleum
Reserve. The procedures do not
represent actual terms and conditions to
be contained in the contracts for the
acquisition of SPR petroleum products.
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§ 626.2
Definitions.
Backwardation means a market
situation in which prices are
progressively lower in succeeding
delivery months than in earlier months.
Contango means a market situation in
which prices are progressively higher in
the succeeding delivery months than in
earlier months.
Contract means the agreement under
which DOE acquires SPR petroleum
products, consisting of the solicitation,
the contract form signed by both parties,
the successful offer, and any subsequent
modifications, including those granting
requests for deferrals.
Contracting Officer means a person
with the authority to enter into,
administer, and/or terminate contracts
and make related determinations and
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findings, including entering into sales
contracts on behalf of the Government.
The term includes certain authorized
representatives of the Contracting
Officer acting within the limits of their
authority as delegated by the
Contracting Officer.
DEAR means the Department of
Energy Acquisition Regulation.
Deferral means a process whereby
petroleum products scheduled for
delivery to the SPR in a specific contract
period is rescheduled for later delivery,
outside of that period and encompasses
the future delivery of the originally
scheduled quantity plus an in-kind
premium.
DOE means the Department of Energy
and includes any of its subsidiary
offices, such as the Office of Petroleum
Reserves (OPR) and the Strategic
Petroleum Reserve Program
Management Office.
Exchange means a process whereby
petroleum products owned by or due to
the SPR are provided to an entity or
requestor in return for petroleum
products of comparable quality plus a
premium quantity of petroleum
products (in barrels)—or another form of
premium as permitted by law—
delivered to the SPR in the future, or
when SPR petroleum products are
traded for petroleum products of a
different quality preferred by DOE for
operational reasons based on the
relative values of the quantities traded.
FAR means the Federal Acquisition
Regulation.
Government means the United States
Government and includes DOE as its
representative.
OPR means the Office of Petroleum
Reserves within DOE, whose
responsibilities include the operation of
the Strategic Petroleum Reserve.
Petroleum products means crude oil,
residual fuel oil, or any refined product
(including any natural gas liquid, and
any natural gas liquid product) owned,
or contracted for, by DOE and in storage
in any permanent SPR facility, or
temporarily stored in other storage
facilities.
Premium means the additional
amount of petroleum product (in
barrels)—or another form of payment as
permitted by law—that must be
delivered to the SPR above the principal
amount of petroleum product owed to
SPR in the case of an exchange or a
deferred contractually scheduled
delivery. The premium may include a
calculation based on a rate set by DOE
and duration of time until the SPR
receives the petroleum product.
Requestor is an entity that makes an
emergency request under § 626.7(b).
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Secretary means the Secretary of
Energy.
Solicitation means the written request
by DOE for submission of offers or
quotations to DOE for the acquisition of
petroleum products.
Strategic Petroleum Reserve or SPR
means the reserve for the storage of up
to 1 billion barrels of petroleum
products established by Title I, Part B,
of the Energy Policy and Conservation
Act, 42 U.S.C. 6201 et seq.
§ 626.3
Applicability.
The procedures in this part apply to
the acquisition of petroleum products
by DOE for the Strategic Petroleum
Reserve through purchase or exchange,
as well as to deferrals of contractually
scheduled deliveries.
§ 626.4
General acquisition strategy.
(a) Criteria for commencing
acquisition. DOE shall consider the
following factors prior to commencing
acquisition of petroleum products for
the SPR:
(1) The current inventory of the SPR;
(2) The current level of private
inventories;
(3) Days of net import protection;
(4) Current price levels for petroleum
products and related commodities, the
ability to minimize costs and avoid
incurring excessive costs in acquisition,
and the possible effect on consumer and
market prices of any SPR acquisition;
(5) The outlook for international and
domestic production levels;
(6) Existing or potential disruptions in
supply or refining capability;
(7) The level of market volatility;
(8) Futures market price differentials
for petroleum products and related
commodities;
(9) The need to protect national
security; and
(10) Any other factor the Secretary
deems necessary or appropriate to
consider.
(b) Review of rate of acquisition. DOE
shall review the appropriate rate of
petroleum product acquisition each
time an open market acquisition has
been suspended for more than three
months.
(c) Acquisition through other Federal
agencies. DOE may enter into
arrangements with another Federal
agency for that agency to acquire
petroleum products for the SPR on
behalf of DOE.
§ 626.5
Acquisition procedures—general.
(a) Notice of acquisition.
(1) Except when DOE has determined
there is good cause to do otherwise,
DOE shall provide advance public
notice of its intent to acquire petroleum
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products for the SPR. The notice of
acquisition will, to the extent feasible,
include the general terms and details of
DOE’s petroleum products acquisition
and inform the public of DOE’s overall
fill goals.
(2) The notice of acquisition will
generally include the:
(i) Manner of acquisition;
(ii) Time period for solicitations;
(iii) Quantity of petroleum products
sought;
(iv) Minimum petroleum product
quality requirements;
(v) Time period for delivery;
(vi) Acceptable delivery locations;
and
(vii) Instructions for the offer process.
(b) Manner of acquisition.
(1) DOE shall specify the manner of
petroleum product acquisition, either
purchase or exchange, in the notice of
acquisition.
(2) DOE shall, to the greatest extent
practicable, determine the manner of
petroleum product acquisition after
considering:
(i) The availability of appropriated
funds;
(ii) Minimization of costs;
(iii) Minimization of the Nation’s
vulnerability to a severe energy supply
interruption;
(iv) Minimization of the impact to
supply levels and market forces;
(v) Whether the manner of acquisition
would encourage competition in the
petroleum industry; and
(vi) Other considerations DOE deems
to be relevant.
(c) Solicitation.
(1) To secure the economic benefit
and security of a diversified base of
potential suppliers of petroleum
products to the SPR, DOE shall maintain
a listing, developed through online
registration, direct requests to DOE, and
outreach to potential suppliers by DOE.
Upon the issuance of a solicitation, DOE
shall notify potential suppliers via their
registered email addresses.
(2) DOE shall make the solicitation
publicly available on the website of the
OPR: www.spr.doe.gov.
(d) Timing and duration of
solicitation.
(1) DOE shall determine petroleum
products requirements on nominal sixmonth cycles, and shall review and
update these requirements prior to each
solicitation cycle.
(2) Unless termination rights are
explicitly waived by DOE, DOE may
terminate any solicitations and contracts
pertaining to the acquisition or
exchange of petroleum products at the
convenience of the Government, and in
such event shall not be responsible for
any costs incurred by suppliers, other
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than costs for petroleum products
delivered to the SPR and for reasonable,
customary, and applicable costs
incurred by the supplier in the
performance of a valid contract for
delivery before the effective date of
termination of such contract. In no
event shall the Government be liable for
consequential damages or the entity’s
lost profits as a result of such
termination.
(e) Quality.
(1) DOE shall define minimum
petroleum product quality
specifications for the SPR. DOE shall
include such specifications in
acquisition solicitations, and shall make
them available on the website of the
OPR: www.spr.doe.gov.
(2) DOE shall periodically review the
quality specifications to ensure, to the
greatest extent practicable, the
petroleum product mix in storage
matches the demand of the United
States refining system.
(f) Quantity. In determining the
quantities of petroleum products to be
delivered to the SPR, DOE shall:
(1) Take into consideration market
conditions and the availability of
transportation systems; and
(2) Seek to avoid adversely affecting
other market participants or petroleum
product market fundamentals.
(g) Offer and evaluation procedures.
(1) Each solicitation shall provide
necessary instructions on offer format
and submission procedures. The details
of the offer, evaluation and award
procedures may vary depending on the
method of acquisition.
(2) DOE may use relative values and
time differentials to manage acquisition
and delivery schedules to reduce
acquisition costs.
(3) DOE may evaluate offers based on
prevailing market prices of specific
petroleum products, and shall award
contracts on a competitive basis.
(4) Whether acquisition is by
purchase or exchange, DOE may use a
price index to account for fluctuations
in absolute and relative market prices at
the time of delivery to reduce market
risk to all parties throughout the
contract term.
(h) Scheduling and delivery.
(1) Except as provided in paragraph
(h)(4) of this section, DOE shall accept
offers for petroleum products delivered
to specified SPR storage sites via
pipeline or as waterborne cargos
delivered to the terminals serving those
sites.
(2) Except as provided in paragraph
(h)(4) of this section, DOE shall
generally establish schedules that allow
for evenly spaced deliveries of
economically sized marine and pipeline
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47657
shipments within the constraints of SPR
site and commercial facilities receipt
capabilities.
(3) DOE shall strive to maximize U.S.
flag carrier utilization through the terms
of its supply contracts.
(4) DOE reserves the right to accept
offers for other methods of delivery if,
in DOE’s sole judgment, market
conditions and logistical constraints
require such other methods.
§ 626.6 Acquiring petroleum products by
purchase.
(a) General. For the purchase of
petroleum products, DOE shall, through
certified contracting officers, conduct
petroleum product acquisitions in
accordance with the competitive
principles of the FAR and the DEAR.
(b) Acquisition strategy.
(1) DOE solicitations:
(i) May be either continuously open or
fixed for a period of time; and
(ii) May provide either for immediate
delivery or for delivery at future dates.
(2) DOE may alter the acquisition plan
to take advantage of differentials in
prices for different qualities of
petroleum products, based on a
consideration of factors, including the
availability of storage capacity in the
SPR sites, the logistics of changing
delivery streams, and the availability of
ships, pipelines and terminals to move
and receive the petroleum products.
(3) Based on the market analysis
described in paragraph (d) of this
section, DOE may refuse offers or
suspend the acquisition process on the
basis of Government estimates
projecting substantially lower petroleum
product prices in the future than those
contained in offers. If DOE determines
there is a high probability that the cost
to the Government can be reduced
without significantly affecting national
energy security goals, DOE may either
contract for delivery at a future date or
delay purchases to take advantage of the
projected lower future prices.
Conversely, DOE may increase the rate
of purchases if prices fall below recent
price trends or futures markets present
a significant contango and prices offer
the opportunity to reduce the average
cost of petroleum product acquisitions
in anticipation of higher future prices.
(4) Based on the market analysis
described in paragraph (d) of this
section, DOE may refuse offers, decrease
the rate of purchase, or suspend the
acquisition process if DOE determines
acquisition will add significant upward
pressure to prices either regionally or on
a world-wide basis. DOE may consider
recent price changes, private inventory
levels, petroleum product acquisition by
other stockpiling entities, the outlook
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for world petroleum products
production, incipient disruptions of
supply or refining capability, logistical
problems for moving petroleum
products, macroeconomic factors, and
any other considerations that may be
pertinent to the balance of petroleum
product supply and demand.
(c) Fill requirements determination.
DOE shall develop SPR fill requirements
for each solicitation based on an
assessment of national energy security
goals, the availability of storage
capacity, and the need for specific
grades and quantities of petroleum
products.
(d) Market analysis.
(1) DOE shall establish a market value
for each petroleum product to be
acquired based on a market analysis at
the time of contract award.
(2) DOE may consider prices on
futures markets, spot markets, recent
price movements, current and projected
shipping rates, forecasts by the DOE
Energy Information Administration, and
any other analytic tools available to
DOE to determine the most desirable
purchase profile.
(3) DOE may also consider factors
including recent price changes, private
inventory levels, petroleum product
acquisition by other stockpiling entities,
the outlook for world petroleum product
production, disruptions of supply or
refining capability, logistical problems
for moving petroleum products,
macroeconomic factors, and any other
considerations that may be pertinent
relevant to the balance of petroleum
product supply and demand.
(e) Evaluation of offers.
(1) DOE shall evaluate offers using:
(i) The criteria and requirements
stated in the solicitation; and
(ii) The market analysis under
paragraph (d) of this section.
(2) DOE shall require financial
guarantees from the contracting entity,
in the form of a letter of credit or
equivalent financial assurance.
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§ 626.7 Acquiring petroleum products by
exchange.
(a) General. DOE may, through
certified contracting officers, conduct
petroleum product acquisitions through
the exchange of petroleum products.
Exchanges are conducted through
emergency requests or by solicitation.
(b) Emergency Requests.
(1) Notwithstanding the requirements
of Section 626.5, the requirements of
this subsection shall control all
exchanges by emergency request.
(2) At any point, in the event of an
emergency, a requestor may request, in
writing, for an exchange of petroleum
product from the SPR.
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(3) All requests shall include the
following:
(i) A justification of need that
describes:
(A) The emergency event,
(B) The emergency event’s impact on
the requestor, and
(C) The requestor’s inability to acquire
petroleum product from an alternative
source;
(ii) The quantity of petroleum product
(in barrels) requested;
(iii) The quality specifications of
petroleum product requested; and
(iv) The anticipated duration of the
emergency event.
(4) Upon receipt of an emergency
request, DOE will verify the emergency,
evaluate the need, and assess the market
to ensure there is no alternative source
of petroleum products available to the
requester. DOE, in its sole discretion,
may approve or disapprove any
emergency request.
(5) Upon approval of an emergency
request, DOE may enter into contract
negotiations with the requestor.
(6) Repayment to the SPR for an
exchange by emergency request shall be
in the form of barrels of petroleum
products, or another form of repayment
as permitted by law, and shall include
the following to be returned to the SPR
by the contracted date:
(i) The principal amount of petroleum
products provided to the requestor;
(ii) A premium; and
(iii) Costs incurred by DOE in
conducting the emergency request.
(c) Solicitation for Exchange.
(1) A solicitation for exchange:
(i) May be either continuously open or
fixed for a period of time;
(ii) Shall advertise the quantity and
quality specification of petroleum
product available for exchange;
(iii) May provide either for immediate
delivery or for delivery at future dates
to a bidding entity;
(iv) May, in DOE’s sole discretion,
include a rate table from which offerors
may offer dates for repayment; and
(v) May require financial guarantees
from offerors in the form of a letter of
credit or equivalent financial assurance
to accompany their bids.
(2) In conducting the bidding and
selection process:
(i) Offerors shall follow the
instructions to offerors included in the
solicitation;
(ii) DOE shall evaluate and select bids
that best support national energy
security goals, the availability of
petroleum products and storage
capacity, and need for specific grades
and quantities of petroleum products;
and
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(iii) Upon selection of a successful
bid, DOE shall notify the apparently
successful offeror.
(3) Repayment to the SPR for an
exchange by solicitation shall be in the
form of barrels of petroleum products or
another form of repayment as permitted
by law, and may be calculated based on
any rate table, if applicable, and shall
include the following:
(i) Principal amount of petroleum
product owed to SPR in the case of an
exchange or a deferred contractually
scheduled delivery;
(ii) Costs incurred by DOE in
conducting the exchange; and
(iii) A premium for each prospective
date for repayment.
(4) Based on the market analysis
described in paragraph (c)(5) of this
section, DOE may refuse offers, decrease
the rate of acquisition, or suspend the
exchange process if DOE determines
acquisition will add significant upward
pressure to prices either regionally or on
a worldwide basis. DOE may consider
recent price changes, private inventory
levels, petroleum product acquisition by
other stockpiling entities, the outlook
for world petroleum products
production, incipient disruptions of
supply or refining capability, logistical
problems for moving petroleum
products, macroeconomic factors, and
any other considerations that may be
pertinent to the balance of petroleum
product supply and demand.
(5) Market analysis.
(i) DOE shall establish a market value
for each petroleum product to be
acquired based on a market analysis at
the time of contract award.
(ii) DOE may consider prices on
futures markets, spot markets, recent
price movements, current and projected
shipping rates, forecasts by the DOE
Energy Information Administration, and
any other analytic tools available to
DOE to determine the most desirable
purchase profile.
(iii) DOE may also consider factors
including recent price changes, private
inventory levels, petroleum product
acquisition by other stockpiling entities,
the outlook for world petroleum product
production, disruptions of supply or
refining capability, logistical problems
for moving petroleum products,
macroeconomic factors, and any other
considerations that may be pertinent
relevant to the balance of petroleum
product supply and demand.
§ 626.8 Deferrals of contractually
scheduled deliveries.
(a) General.
(1) DOE prefers to take deliveries of
petroleum products for the SPR at times
scheduled under applicable contracts.
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However, in the event the market is
distorted by disruption to supply or
other factors, DOE may defer scheduled
deliveries or consider deferral requests
from awardees.
(2) An awardee seeking to defer
scheduled deliveries of petroleum
products to the SPR may submit a
deferral request to DOE.
(b) Deferral criteria. DOE shall only
grant a deferral request for negotiation
under paragraph (c) of this section if it
determines that DOE can receive a
premium for the deferral and, based on
DOE’s deferral analysis, that at least one
of the following conditions exists:
(1) DOE can reduce the cost of its
petroleum products acquisition per
barrel and increase the volume of
petroleum products being delivered to
the SPR by means of the premium
barrels required by the deferral process;
(2) DOE anticipates private
inventories are approaching a point
where unscheduled outages may occur;
(3) There is evidence that refineries
are reducing their run rates for lack of
feedstock; or
(4) There is an unanticipated
disruption to petroleum product supply.
(c) Negotiating terms.
(1) If DOE decides to negotiate a
deferral of deliveries, DOE shall
estimate the market value of the deferral
and establish a strategy for negotiating
with suppliers the minimum percentage
of the market value to be taken by the
Government. During these negotiations,
if the deferral request was initiated by
DOE, DOE may consider any reasonable,
customary, and applicable costs already
incurred by the supplier in the
performance of a valid contract for
delivery. In no event shall such
consideration account for any
consequential damages or lost profits
suffered by the supplier as a result of
such deferral.
(2) DOE shall only agree to amend the
contract if the negotiation results in an
agreement to give the Government a fair
and reasonable share of the market
value.
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§ 626.9 Suspension and pre-drawdown
diversion.
BILLING CODE 6450–01–P
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Coast Guard
33 CFR Part 165
[Docket Number USCG–2022–0641]
RIN 1625–AA00
Safety Zone; Firework Event,
Willamette River, Portland, OR
Coast Guard, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Coast Guard is proposing
to establish a temporary safety zone for
certain waters of the Willamette River.
This action is necessary to provide for
the safety of life on these navigable
waters between the Marquam Bridge to
Hawthorne Bridge, Portland, Oregon,
during a fireworks display on the
evening of September 3, 2022. This
proposed rulemaking would prohibit
persons and vessels from being in the
safety zone unless authorized by the
Captain of the Port Columbia River or a
designated representative. We invite
your comments on this proposed
rulemaking.
SUMMARY:
Comments and related material
must be received by the Coast Guard on
or before August 19, 2022.
ADDRESSES: You may submit comments
identified by docket number USCG–
2022–0641 using the Federal Decision
Making Portal at https://
www.regulations.gov. See the ‘‘Public
Participation and Request for
Comments’’ portion of the
SUPPLEMENTARY INFORMATION section for
further instructions on submitting
comments.
DATES:
If
you have questions about this proposed
rulemaking, call or email LT Sean
Murphy, Waterways Management
Division, Marine Safety Unit Portland,
U.S. Coast Guard; telephone 503–240–
9319, email D13-SMBMSUPortlandWWM@uscg.mil.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
I. Table of Abbreviations
Where the Secretary has found that a
severe energy supply interruption may
be imminent, the Secretary may
suspend any previously announced or
contracted acquisition of any petroleum
product by the SPR or injection of
petroleum products into the SPR; or sell
any petroleum product acquired for
injection into the SPR that has not yet
been injected into the SPR.
[FR Doc. 2022–16081 Filed 8–3–22; 8:45 am]
DEPARTMENT OF HOMELAND
SECURITY
CFR Code of Federal Regulations
COTP Captain of the Port Columbia River
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code
II. Background, Purpose, and Legal
Basis
On July 19, 2022, the Oregon
Symphony notified the Coast Guard that
it will be conducting a fireworks display
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from 9 p.m. to 9:30 p.m. on September
3, 2022. The fireworks are to be
launched from a barge in the Willamette
River between Marquam Bridge and
Hawthorne Bridge, Portland, Oregon.
Hazards from firework displays include
accidental discharge of fireworks,
dangerous projectiles, and falling hot
embers or other debris. The Captain of
the Port Columbia River (COTP) has
determined that potential hazards
associated with the fireworks to be used
in this display would be a safety
concern for anyone within a 300-yard
radius of the barge before, during, or
after the fireworks display.
The purpose of this rulemaking is to
ensure the safety of vessels and the
navigable waters within a 300-yard
radius of the fireworks barge before,
during, and after the scheduled event.
The Coast Guard is proposing this
rulemaking under authority in 46 U.S.C.
70034 (previously 33 U.S.C. 1231).
III. Discussion of Proposed Rule
The COTP is proposing to establish a
safety zone from 8:30 p.m. to 10 p.m. on
September 3, 2022. The safety zone
would cover all navigable waters within
a 300-yard radius of a barge in the
Willamette River located between the
Marquam Bridge and Hawthorne Bridge,
Portland, OR. The duration of the zone
is intended to ensure the safety of
vessels and these navigable waters
before, during, and after the scheduled
9 p.m. to 9:30 p.m. fireworks display.
No vessel or person would be permitted
to enter the safety zone without
obtaining permission from the COTP or
a designated representative. The
regulatory text we are proposing appears
at the end of this document.
IV. Regulatory Analyses
We developed this proposed rule after
considering numerous statutes and
Executive orders related to rulemaking.
Below we summarize our analyses
based on a number of these statutes and
Executive orders, and we discuss First
Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits.
This NPRM has not been designated a
‘‘significant regulatory action,’’ under
Executive Order 12866. Accordingly,
the NPRM has not been reviewed by the
Office of Management and Budget
(OMB).
This regulatory action determination
is based on the size, location, and
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Agencies
[Federal Register Volume 87, Number 149 (Thursday, August 4, 2022)]
[Proposed Rules]
[Pages 47652-47659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16081]
=======================================================================
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DEPARTMENT OF ENERGY
10 CFR Part 626
RIN 1901-AB56
Procedures for the Acquisition of Petroleum for the Strategic
Petroleum Reserve
AGENCY: Office of Petroleum Reserves, Department of Energy.
ACTION: Notice of proposed rulemaking and request for comment.
-----------------------------------------------------------------------
SUMMARY: The Energy Policy Act of 2005 directed the Secretary of Energy
to develop procedures for the acquisition of petroleum products for the
Strategic Petroleum Reserve (``SPR''). Pursuant to that direction, the
Department of Energy (``DOE'' or the ``Department'') promulgated the
Procedures for Acquisition of Petroleum for the Strategic Petroleum
Reserve. Over the intervening 16 years, the existing regulations have
become outdated due to changes in statutory authority, agency practice,
and market dynamics. In this notice of proposed rulemaking (``NOPR''),
DOE proposes to amend the procedures for the acquisition of petroleum
products for the SPR to: more closely align the regulatory language
with the applicable statutory language; remove outdated procedures for
acquisition under the royalty-in-kind program; add procedures for
acquisition by exchange to better reflect petroleum product acquisition
operations as conducted by the Office of Petroleum Reserves; and
increase the Department's flexibility in structuring acquisitions.
DATES: DOE will accept comments, data, and information regarding this
NOPR no later than September 6, 2022.
Comments regarding the likely competitive impact of the proposed
standard are to be sent to the DOE by the methods set forth in the
ADDRESSES section on or before September 6, 2022.
ADDRESSES: Interested persons are encouraged to submit comments using
the Federal eRulemaking Portal at www.regulations.gov. Follow the
instructions for submitting comments. Alternatively, interested persons
may submit comments, identified by RIN 1901-AB56, by any of the
following methods:
1. Federal eRulemaking Portal: www.regulations.gov. Follow the
instructions for submitting comments.
2. Email: [email protected]. Include the RIN 1901-AB56 in
the subject line of the message.
3. Postal Mail: U.S. Department of Energy, Office of the General
Counsel (GC-33), Room 6B-159, 1000 Independence Avenue SW, Washington,
DC 20585.
4. Hand Delivery/Courier: U.S. Department of Energy, Room 6B-159,
1000 Independence Avenue SW, Washington, DC 20585.
No telefacsimiles (faxes) will be accepted. For detailed
instructions on submitting comments and additional information on the
rulemaking process, see section III, Public Participation, for details.
Docket: The docket, which includes Federal Register notices,
comments, and other supporting documents/materials, is available for
review at www.regulations.gov. All documents in the docket are listed
in the www.regulations.gov index. However, some documents listed in the
index, such as those containing information that is exempt from public
disclosure, may not be publicly available.
The docket web page can be found at the www.regulations.gov web
page associated with RIN 1901-AB56. The docket web page contains simple
instructions on how to access all documents, including public comments,
in the docket. See section III, Public Participation, for information
on how to submit comments through www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas McGarry, U.S. Department of
Energy, Office of Petroleum Reserves, Office of Fossil Energy and
Carbon Management, Forrestal Building, Room 3G-024, 1000 Independence
Avenue SW, Washington, DC 20585; (202) 586-8197, email:
[email protected]; or Mr. Edward Toyozaki, U.S. Department of
Energy, Office of the General Counsel, Forrestal Building, Room 6B-159,
1000 Independence Avenue SW, Washington, DC 20585; (202) 586-0126,
email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background and Introduction
II. Discussion of Proposed Rule
III. Public Participation
IV. Regulatory Review
V. Approval of the Office of the Secretary
I. Background and Introduction
The SPR was established by the Energy Policy and Conservation Act
(``EPCA''), (Pub. L. 94-163), to store petroleum products to diminish
the impact of disruptions on petroleum supplies and to carry out the
obligations of the United States under the International Energy
Program. (42 U.S.C. 6231 et seq.) Section 160 of EPCA authorizes the
Secretary of Energy to acquire petroleum products for the SPR.
Subsequently, the Energy Policy Act of 2005, (Pub. L. 109-58), amended
EPCA and directed the Secretary of Energy to develop, with the
opportunity for public notice and comment, procedures for the
acquisition of petroleum products for the SPR (42 U.S.C. 6240). The
principal method for acquiring SPR petroleum products is by purchase,
but SPR petroleum may also be acquired via exchange. (42 U.S.C.
6240(a)) On November 8, 2006, and pursuant to EPCA, as amended by the
Energy Policy Act of 2005, DOE established procedures for the
acquisition of SPR
[[Page 47653]]
petroleum at 10 CFR part 626. 71 FR 65376 (``2006 final rule''). The
2006 final rule included provisions regarding the direct purchase,
exchange, and transfer of royalty oil from the Department of the
Interior (``DOI'').
Subsequent to DOE promulgating the 2006 final rule, the Government
Accountability Office and the DOI Inspector General published several
reports between 2008 and 2009 on the shortcomings of and personnel
misconduct related to the royalty-in-kind program, and, as a result,
the DOI terminated its royalty-in-kind program in 2010. Then, in 2013,
with section 306(a) of the Bipartisan Budget Act of 2013, Congress
repealed DOE's authority to conduct SPR acquisitions under the royalty-
in-kind program that was incorporated into the 2006 final rule.
However, 10 CFR part 626 has not been updated since it was promulgated
by DOE in the 2006 final rule, and, thus, does not reflect the
intervening changes to the authorizing statutory authority.
Additionally, as DOE has had numerous opportunities to conduct
exchanges, mostly in an emergency exchange capacity, DOE is in a
position to rewrite these regulations to both provide more clarity and
better reflect operational realities.
Lastly, in light of changing petroleum product market dynamics, the
Department intends to align the acquisition regulations more closely
with the statutory language of 42 U.S.C. 6240 and provide the Secretary
with additional flexibility in structuring acquisitions.
II. Discussion of Proposed Rule
The proposed rule would revise 10 CFR part 626 in several respects.
First, the proposed rule would update language throughout part 626 to
more closely align with the statutory language found in Section 160 of
EPCA. This includes updating the definitions for ``DOE'', ``Exchange'',
and ``Strategic Petroleum Reserve'', while adding new definitions for
``Premium'', ``Requestor'', and ``Solicitation''. The definition
pertaining to ``DOI'' would also be struck. These changes would provide
more clarity and maintain continuity throughout the part while
supporting other proposed changes.
Second, because Congress repealed DOE's authority for it in 2013,
all references to the royalty-in-kind program would be removed. This
includes removal of the procedures for acquisition under the royalty-
in-kind program currently at 10 CFR 626.7.
Third, the proposed rule would codify procedures for the exchange
of petroleum products at a revised 10 CFR 626.7, as well as add
references to ``exchange'' throughout part 626, as appropriate. These
proposed changes are intended to reflect current operational practices
of the SPR. Since 1996, in accordance with statutory authority in
Sections 159 and 160 of EPCA, DOE has conducted over a dozen emergency
exchanges with private industry. In these emergency exchanges, upon
request from refiners and verification of the request by DOE, the SPR
provides emergency barrels of petroleum product to refiners; in return,
the requesting refiners later provide the SPR the original number of
barrels plus extra barrels called a ``premium.'' In addition to the
emergency exchanges by request, since 2000, DOE has twice utilized the
exchange authority to conduct solicitations for exchange, whereby the
general public may bid to contract to accept barrels of SPR petroleum
products in the present and return those barrels plus a premium in the
future. DOE is proposing to codify these long-standing procedures into
the acquisition regulations.
Fourth, the proposed rule would amend 10 CFR 626.5 and 626.6 to
increase flexibility for DOE to enter into contracts for the purchase
of petroleum products, consistent with the requirements and objectives
of section 160 of EPCA. These changes ensure that DOE continues to
acquire petroleum products in accordance with the competitive
principles of the Federal Acquisition Regulations and the DOE
Acquisition Regulations, while providing DOE the flexibility to use
either fixed-price or index-priced contracts for future petroleum
product acquisitions. DOE is proposing these changes because the
current acquisition regulations, including the requirement that DOE
acquire oil in accordance with the Federal Acquisition Regulations and
the requirement to use a price index to set purchase prices,
unnecessarily restrict DOE's flexibility to procure petroleum products
using fixed price contracts, notwithstanding the fact that there may be
circumstances in which a fixed price acquisition would better meet the
statutory objectives of EPCA.
Lastly, the proposed rule would add 10 CFR 626.9 to implement 42
U.S.C. 6240(f). This final proposed change has been included because,
while the Department has had the statutory authority to suspend
previously announced or contracted acquisitions of petroleum products
or divert the injection of petroleum products into the SPR when there
is a perceived imminent severe energy supply interruption, to date,
this authority has not been incorporated into any existing regulations.
III. Public Participation
DOE will accept comments, data, and information regarding this NOPR
on or before the date provided in the DATES section at the beginning of
this proposed rule. Interested parties may submit comments, data, and
other information using any of the methods described in the ADDRESSES
section at the beginning of this document.
Submitting comments via www.regulations.gov. The
www.regulations.gov web page will require you to provide your name and
contact information. Your contact information will not be publicly
viewable except for your first and last names, organization name (if
any), and submitter representative name (if any). If your comment is
not processed properly because of technical difficulties, DOE will use
this information to contact you. If DOE cannot read your comment due to
technical difficulties and cannot contact you for clarification, DOE
may not be able to consider your comment.
However, your contact information will be publicly viewable if you
include it in the comment itself or in any documents attached to your
comment. Any information that you do not want to be publicly viewable
should not be included in your comment, nor in any document attached to
your comment. Otherwise, persons viewing comments will see only first
and last names, organization names, correspondence containing comments,
and any documents submitted with the comments.
Do not submit to www.regulations.gov information the disclosure of
which is restricted by statute, such as trade secrets and commercial or
financial information (hereinafter referred to as Confidential Business
Information (``CBI'')). Comments submitted through www.regulations.gov
cannot be claimed as CBI. Comments received through the website will
waive any CBI claims for the information submitted. For information on
submitting CBI, see the Confidential Business Information section
below.
DOE processes submissions made through www.regulations.gov before
posting. Normally, comments will be posted within a few days of being
submitted. However, if large volumes of comments are being processed
simultaneously, your comment may not be viewable for up to several
weeks. Please keep the comment tracking number that www.regulations.gov
[[Page 47654]]
provides after you have successfully uploaded your comment.
Submitting comments via email, hand delivery/courier, or postal
mail. Comments and documents submitted via email, hand delivery/
courier, or postal mail also will be posted to www.regulations.gov. If
you do not want your personal contact information to be publicly
viewable, do not include it in your comment or any accompanying
documents. Instead, provide your contact information in a cover letter.
Include your first and last names, email address, telephone number, and
optional mailing address. The cover letter will not be publicly
viewable as long as it does not include any comments.
Include contact information each time you submit comments, data,
documents, and other information to DOE. If you submit via postal mail
or hand delivery/courier, please provide all items on a CD, if
feasible, in which case it is not necessary to submit printed copies.
No telefacsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE
electronically should be provided in PDF (preferred), Microsoft Word or
Excel, WordPerfect, or text (ASCII) file format. Provide documents that
are written in English, and that are free of any defects or viruses.
Documents should not contain special characters or any form of
encryption and, if possible, they should carry the electronic signature
of the author.
Confidential Business Information. Pursuant to 10 CFR 1004.11, any
person submitting information that he or she believes to be
confidential and exempt by law from public disclosure should submit via
email, postal mail, or hand delivery/courier two well-marked copies:
One copy of the document marked ``confidential'' including all the
information believed to be confidential, and one copy of the document
marked ``non-confidential'' that deletes the information believed to be
confidential. Submit these documents via email or on a CD, if feasible.
DOE will make its own determination about the confidential status of
the information and will treat it according to its determination. It is
DOE's policy that all comments, including any personal information
provided in the comments, may be included in the public docket, without
change and as received, except for information deemed to be exempt from
public disclosure.
IV. Regulatory Review
A. Executive Order 12866
This proposed rule has been determined to not be a significant
regulatory action under Executive Order 12866, ``Regulatory Planning
and Review.'' 58 FR 51735 (October 4, 1993). Accordingly, this action
was not subject to review under that Executive order by the Office of
Information and Regulatory Affairs (``OIRA'') of the Office of
Management and Budget (``OMB'').
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by Executive Order 13272, Proper Consideration of Small Entities in
Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process, 68 FR 7990. The Department
has made its procedures and policies available on the Office of General
Counsel's website: www.energy.gov/gc/office-general-counsel.
The proposed rule would update the procedures DOE utilizes for the
acquisition of petroleum products for the SPR, change definitions, and
remove references to the repealed royalty-in-kind program. DOE has
reviewed the proposed changes under the provisions of the Regulatory
Flexibility Act and the procedures and policies published on February
19, 2003. These proposed procedures are procedural and not designed to
set the terms or conditions of an acquisition and apply only to
entities that are engaged in the sale of petroleum products to the
Strategic Petroleum Reserve. Historically, Strategic Petroleum Reserve
acquisitions have typically been large volume acquisitions, and usually
filled by larger entities operating in the petroleum industry.
Therefore, the proposed procedures are unlikely to directly affect
small businesses or other small entities. For these reasons, DOE
certifies that this proposed rule would not have a significant economic
impact on a substantial number of small entities. Accordingly, DOE has
not prepared a regulatory flexibility analysis for this rulemaking.
DOE's certification and supporting statement of factual basis will be
provided to the Chief Counsel for Advocacy of the Small Business
Administration for review under 5 U.S.C. 605(b).
C. Paperwork Reduction Act of 1995
The proposed rule would impose no new information or record keeping
requirements. Accordingly, OMB clearance is not required under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
D. Review Under the National Environmental Policy Act of 1969
Per 10 CFR 1021.410(a), DOE has determined that promulgation of
these regulations fall into a class of actions that does not
individually or cumulatively have a significant impact on the human
environment as set forth under DOE's regulations implementing the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
Furthermore, this proposed rulemaking is covered under the Categorical
Exclusion found in DOE's National Environmental Policy Act regulations
at paragraph A6 of appendix A to subpart D, 10 CFR part 1021, which
applies to rulemakings that are strictly procedural. Accordingly,
neither an EIS nor an EA is required.
E. Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 10,
1999), imposes certain requirements on agencies formulating and
implementing policies or regulations that preempt State law or that
have federalism implications. The Executive order requires agencies to
examine the constitutional and statutory authority supporting any
action that would limit the policymaking discretion of the States and
to carefully assess the necessity for such actions. DOE examined this
proposed rule and determined that it would not preempt State law and
would not have a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
Government. No further action is required by Executive Order 13132.
F. Executive Order 13175
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments,'' 65 FR 67249, November 9, 2000, applies to agency
regulations that have Tribal implications, that is, regulations that
have substantial direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and
[[Page 47655]]
responsibilities between the Federal Government and Indian Tribes. The
proposed rule has been analyzed in accordance with the principles and
criteria contained in Executive Order 13175. Because this proposed rule
would not significantly or uniquely affect the communities of the
Indian tribal governments or impose substantial direct compliance costs
on them, the funding and consultation requirements of Executive Order
13175 do not apply.
G. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Federal agencies the general duty to adhere to the following
requirements: (1) eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct, rather than a general standard and
promote simplification and burden reduction. Section 3(b) of Executive
Order 12988 specifically requires that executive agencies make every
reasonable effort to ensure that the regulation: (1) clearly specifies
its preemptive effect, if any; (2) clearly specifies any effect on
existing Federal law or regulation; (3) provides a clear legal standard
for affected conduct, while promoting simplification and burden
reduction; (4) specifies its retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. Section 3(c) of Executive Order 12988 requires
executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, the proposed rule would meet the relevant standards
of Executive Order 12988.
H. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA'')
(Pub. L. 104-4) requires each Federal agency to assess the effects of
Federal regulatory actions on State, local, and tribal governments and
the private sector. For a proposed regulatory action likely to result
in a rule that may cause the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector of $100 million
or more in any one year (adjusted annually for inflation), section 202
of UMRA requires a Federal agency to publish a written statement that
estimates the resulting costs, benefits, and other effects on the
national economy (2 U.S.C. 1532(a) and (b)). UMRA also requires a
Federal agency to develop an effective process to permit timely input
by elected officers of State, local, and tribal governments on a
proposed ``significant intergovernmental mandate'' and requires an
agency plan for giving notice and opportunity for timely input to
potentially affected small governments before establishing any
requirements that might significantly or uniquely affect small
governments. On March 18, 1997, DOE published a statement of policy on
its process for intergovernmental consultation under UMRA (62 FR 12820)
(also available at www.energy.gov/gc/office-general-counsel). DOE
examined this proposed rule according to UMRA and its statement of
policy and has determined that the proposed rule contains neither an
intergovernmental mandate nor a mandate that may result in the
expenditure of $100 million or more in any year by State, local, and
tribal governments, in the aggregate, or by the private sector.
Accordingly, no further assessment or analysis is required under UMRA.
I. Treasury and General Government Appropriations Act of 1999
Section 654 of the Treasury and General Government Appropriations
Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a
Family Policymaking Assessment for any proposed rule that may affect
family well-being. This proposed rule would not have any impact on the
autonomy or integrity of the family as an institution. Accordingly, DOE
has concluded that it is not necessary to prepare a Family Policymaking
Assessment.
J. Treasury and General Government Appropriations Act, 2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516 note) provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB. OMB's guidelines
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed the
proposed rule under the OMB and DOE guidelines and has concluded that
it is consistent with applicable policies in those guidelines.
K. Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to OIRA
and OMB, a Statement of Energy Effects for any proposed significant
energy action. A ``significant energy action'' is defined as any action
by an agency that promulgated or is expected to lead to promulgation of
a final rule, and that: (1) is a significant regulatory action under
Executive Order 12866, or any successor order; and (2) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy, or (3) is designated by the Administrator of OIRA as a
significant energy action. For any proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use should the proposal be implemented,
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use. This proposed rule
would update DOE's acquisition of petroleum product procedures for the
SPR to align the regulatory language more closely with existing
statutory language and current practice. Accordingly, the proposed rule
would also update definitions, as appropriate, for the newly aligned
regulatory language. This proposed rule, therefore, does not meet any
of the three criteria listed above and would not have a significant
adverse effect on the supply, distribution, or use of energy and is
therefore not a significant regulatory action. Accordingly, DOE has not
prepared a Statement of Energy Effects.
V. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this notice of
proposed rulemaking and request for comment.
List of Subjects in 10 CFR Part 626
Government contracts, Oil and gas reserves, Strategic and critical
materials.
Signing Authority
This document of the Department of Energy was signed on July 21,
2022, by Bradford J. Crabtree, Assistant Secretary for Fossil Energy
and Carbon Management, pursuant to delegated authority from the
Secretary of Energy. That document with the original signature and date
is maintained by DOE. For administrative purposes only, and in
compliance with requirements of the Office of the Federal Register, the
undersigned DOE Federal Register
[[Page 47656]]
Liaison Officer has been authorized to sign and submit the document in
electronic format for publication, as an official document of the
Department of Energy. This administrative process in no way alters the
legal effect of this document upon publication in the Federal Register.
Signed in Washington, DC, on July 22, 2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For reasons stated in the preamble, DOE proposes to revise part 626
in chapter II of title 10 of the Code of Federal Regulations as set
forth below:
PART 626--PROCEDURES FOR ACQUISITION OF PETROLEUM FOR THE STRATEGIC
PETROLEUM RESERVE
Sec.
626.1 Purpose.
626.2 Definitions.
626.3 Applicability.
626.4 General acquisition strategy.
626.5 Acquisition procedures--general.
626.6 Acquiring petroleum products by purchase.
626.7 Acquiring petroleum products by exchange.
626.8 Deferrals of contractually scheduled deliveries.
626.9 Suspension and pre-drawdown diversion.
Authority: 42 U.S.C. 6240(c); 42 U.S.C. 7101, et seq.
Sec. 626.1 Purpose.
This part establishes the procedures for acquiring petroleum
products for, and deferring contractually scheduled deliveries to, the
Strategic Petroleum Reserve. The procedures do not represent actual
terms and conditions to be contained in the contracts for the
acquisition of SPR petroleum products.
Sec. 626.2 Definitions.
Backwardation means a market situation in which prices are
progressively lower in succeeding delivery months than in earlier
months.
Contango means a market situation in which prices are progressively
higher in the succeeding delivery months than in earlier months.
Contract means the agreement under which DOE acquires SPR petroleum
products, consisting of the solicitation, the contract form signed by
both parties, the successful offer, and any subsequent modifications,
including those granting requests for deferrals.
Contracting Officer means a person with the authority to enter
into, administer, and/or terminate contracts and make related
determinations and findings, including entering into sales contracts on
behalf of the Government. The term includes certain authorized
representatives of the Contracting Officer acting within the limits of
their authority as delegated by the Contracting Officer.
DEAR means the Department of Energy Acquisition Regulation.
Deferral means a process whereby petroleum products scheduled for
delivery to the SPR in a specific contract period is rescheduled for
later delivery, outside of that period and encompasses the future
delivery of the originally scheduled quantity plus an in-kind premium.
DOE means the Department of Energy and includes any of its
subsidiary offices, such as the Office of Petroleum Reserves (OPR) and
the Strategic Petroleum Reserve Program Management Office.
Exchange means a process whereby petroleum products owned by or due
to the SPR are provided to an entity or requestor in return for
petroleum products of comparable quality plus a premium quantity of
petroleum products (in barrels)--or another form of premium as
permitted by law--delivered to the SPR in the future, or when SPR
petroleum products are traded for petroleum products of a different
quality preferred by DOE for operational reasons based on the relative
values of the quantities traded.
FAR means the Federal Acquisition Regulation.
Government means the United States Government and includes DOE as
its representative.
OPR means the Office of Petroleum Reserves within DOE, whose
responsibilities include the operation of the Strategic Petroleum
Reserve.
Petroleum products means crude oil, residual fuel oil, or any
refined product (including any natural gas liquid, and any natural gas
liquid product) owned, or contracted for, by DOE and in storage in any
permanent SPR facility, or temporarily stored in other storage
facilities.
Premium means the additional amount of petroleum product (in
barrels)--or another form of payment as permitted by law--that must be
delivered to the SPR above the principal amount of petroleum product
owed to SPR in the case of an exchange or a deferred contractually
scheduled delivery. The premium may include a calculation based on a
rate set by DOE and duration of time until the SPR receives the
petroleum product.
Requestor is an entity that makes an emergency request under Sec.
626.7(b).
Secretary means the Secretary of Energy.
Solicitation means the written request by DOE for submission of
offers or quotations to DOE for the acquisition of petroleum products.
Strategic Petroleum Reserve or SPR means the reserve for the
storage of up to 1 billion barrels of petroleum products established by
Title I, Part B, of the Energy Policy and Conservation Act, 42 U.S.C.
6201 et seq.
Sec. 626.3 Applicability.
The procedures in this part apply to the acquisition of petroleum
products by DOE for the Strategic Petroleum Reserve through purchase or
exchange, as well as to deferrals of contractually scheduled
deliveries.
Sec. 626.4 General acquisition strategy.
(a) Criteria for commencing acquisition. DOE shall consider the
following factors prior to commencing acquisition of petroleum products
for the SPR:
(1) The current inventory of the SPR;
(2) The current level of private inventories;
(3) Days of net import protection;
(4) Current price levels for petroleum products and related
commodities, the ability to minimize costs and avoid incurring
excessive costs in acquisition, and the possible effect on consumer and
market prices of any SPR acquisition;
(5) The outlook for international and domestic production levels;
(6) Existing or potential disruptions in supply or refining
capability;
(7) The level of market volatility;
(8) Futures market price differentials for petroleum products and
related commodities;
(9) The need to protect national security; and
(10) Any other factor the Secretary deems necessary or appropriate
to consider.
(b) Review of rate of acquisition. DOE shall review the appropriate
rate of petroleum product acquisition each time an open market
acquisition has been suspended for more than three months.
(c) Acquisition through other Federal agencies. DOE may enter into
arrangements with another Federal agency for that agency to acquire
petroleum products for the SPR on behalf of DOE.
Sec. 626.5 Acquisition procedures--general.
(a) Notice of acquisition.
(1) Except when DOE has determined there is good cause to do
otherwise, DOE shall provide advance public notice of its intent to
acquire petroleum
[[Page 47657]]
products for the SPR. The notice of acquisition will, to the extent
feasible, include the general terms and details of DOE's petroleum
products acquisition and inform the public of DOE's overall fill goals.
(2) The notice of acquisition will generally include the:
(i) Manner of acquisition;
(ii) Time period for solicitations;
(iii) Quantity of petroleum products sought;
(iv) Minimum petroleum product quality requirements;
(v) Time period for delivery;
(vi) Acceptable delivery locations; and
(vii) Instructions for the offer process.
(b) Manner of acquisition.
(1) DOE shall specify the manner of petroleum product acquisition,
either purchase or exchange, in the notice of acquisition.
(2) DOE shall, to the greatest extent practicable, determine the
manner of petroleum product acquisition after considering:
(i) The availability of appropriated funds;
(ii) Minimization of costs;
(iii) Minimization of the Nation's vulnerability to a severe energy
supply interruption;
(iv) Minimization of the impact to supply levels and market forces;
(v) Whether the manner of acquisition would encourage competition
in the petroleum industry; and
(vi) Other considerations DOE deems to be relevant.
(c) Solicitation.
(1) To secure the economic benefit and security of a diversified
base of potential suppliers of petroleum products to the SPR, DOE shall
maintain a listing, developed through online registration, direct
requests to DOE, and outreach to potential suppliers by DOE. Upon the
issuance of a solicitation, DOE shall notify potential suppliers via
their registered email addresses.
(2) DOE shall make the solicitation publicly available on the
website of the OPR: www.spr.doe.gov.
(d) Timing and duration of solicitation.
(1) DOE shall determine petroleum products requirements on nominal
six-month cycles, and shall review and update these requirements prior
to each solicitation cycle.
(2) Unless termination rights are explicitly waived by DOE, DOE may
terminate any solicitations and contracts pertaining to the acquisition
or exchange of petroleum products at the convenience of the Government,
and in such event shall not be responsible for any costs incurred by
suppliers, other than costs for petroleum products delivered to the SPR
and for reasonable, customary, and applicable costs incurred by the
supplier in the performance of a valid contract for delivery before the
effective date of termination of such contract. In no event shall the
Government be liable for consequential damages or the entity's lost
profits as a result of such termination.
(e) Quality.
(1) DOE shall define minimum petroleum product quality
specifications for the SPR. DOE shall include such specifications in
acquisition solicitations, and shall make them available on the website
of the OPR: www.spr.doe.gov.
(2) DOE shall periodically review the quality specifications to
ensure, to the greatest extent practicable, the petroleum product mix
in storage matches the demand of the United States refining system.
(f) Quantity. In determining the quantities of petroleum products
to be delivered to the SPR, DOE shall:
(1) Take into consideration market conditions and the availability
of transportation systems; and
(2) Seek to avoid adversely affecting other market participants or
petroleum product market fundamentals.
(g) Offer and evaluation procedures.
(1) Each solicitation shall provide necessary instructions on offer
format and submission procedures. The details of the offer, evaluation
and award procedures may vary depending on the method of acquisition.
(2) DOE may use relative values and time differentials to manage
acquisition and delivery schedules to reduce acquisition costs.
(3) DOE may evaluate offers based on prevailing market prices of
specific petroleum products, and shall award contracts on a competitive
basis.
(4) Whether acquisition is by purchase or exchange, DOE may use a
price index to account for fluctuations in absolute and relative market
prices at the time of delivery to reduce market risk to all parties
throughout the contract term.
(h) Scheduling and delivery.
(1) Except as provided in paragraph (h)(4) of this section, DOE
shall accept offers for petroleum products delivered to specified SPR
storage sites via pipeline or as waterborne cargos delivered to the
terminals serving those sites.
(2) Except as provided in paragraph (h)(4) of this section, DOE
shall generally establish schedules that allow for evenly spaced
deliveries of economically sized marine and pipeline shipments within
the constraints of SPR site and commercial facilities receipt
capabilities.
(3) DOE shall strive to maximize U.S. flag carrier utilization
through the terms of its supply contracts.
(4) DOE reserves the right to accept offers for other methods of
delivery if, in DOE's sole judgment, market conditions and logistical
constraints require such other methods.
Sec. 626.6 Acquiring petroleum products by purchase.
(a) General. For the purchase of petroleum products, DOE shall,
through certified contracting officers, conduct petroleum product
acquisitions in accordance with the competitive principles of the FAR
and the DEAR.
(b) Acquisition strategy.
(1) DOE solicitations:
(i) May be either continuously open or fixed for a period of time;
and
(ii) May provide either for immediate delivery or for delivery at
future dates.
(2) DOE may alter the acquisition plan to take advantage of
differentials in prices for different qualities of petroleum products,
based on a consideration of factors, including the availability of
storage capacity in the SPR sites, the logistics of changing delivery
streams, and the availability of ships, pipelines and terminals to move
and receive the petroleum products.
(3) Based on the market analysis described in paragraph (d) of this
section, DOE may refuse offers or suspend the acquisition process on
the basis of Government estimates projecting substantially lower
petroleum product prices in the future than those contained in offers.
If DOE determines there is a high probability that the cost to the
Government can be reduced without significantly affecting national
energy security goals, DOE may either contract for delivery at a future
date or delay purchases to take advantage of the projected lower future
prices. Conversely, DOE may increase the rate of purchases if prices
fall below recent price trends or futures markets present a significant
contango and prices offer the opportunity to reduce the average cost of
petroleum product acquisitions in anticipation of higher future prices.
(4) Based on the market analysis described in paragraph (d) of this
section, DOE may refuse offers, decrease the rate of purchase, or
suspend the acquisition process if DOE determines acquisition will add
significant upward pressure to prices either regionally or on a world-
wide basis. DOE may consider recent price changes, private inventory
levels, petroleum product acquisition by other stockpiling entities,
the outlook
[[Page 47658]]
for world petroleum products production, incipient disruptions of
supply or refining capability, logistical problems for moving petroleum
products, macroeconomic factors, and any other considerations that may
be pertinent to the balance of petroleum product supply and demand.
(c) Fill requirements determination. DOE shall develop SPR fill
requirements for each solicitation based on an assessment of national
energy security goals, the availability of storage capacity, and the
need for specific grades and quantities of petroleum products.
(d) Market analysis.
(1) DOE shall establish a market value for each petroleum product
to be acquired based on a market analysis at the time of contract
award.
(2) DOE may consider prices on futures markets, spot markets,
recent price movements, current and projected shipping rates, forecasts
by the DOE Energy Information Administration, and any other analytic
tools available to DOE to determine the most desirable purchase
profile.
(3) DOE may also consider factors including recent price changes,
private inventory levels, petroleum product acquisition by other
stockpiling entities, the outlook for world petroleum product
production, disruptions of supply or refining capability, logistical
problems for moving petroleum products, macroeconomic factors, and any
other considerations that may be pertinent relevant to the balance of
petroleum product supply and demand.
(e) Evaluation of offers.
(1) DOE shall evaluate offers using:
(i) The criteria and requirements stated in the solicitation; and
(ii) The market analysis under paragraph (d) of this section.
(2) DOE shall require financial guarantees from the contracting
entity, in the form of a letter of credit or equivalent financial
assurance.
Sec. 626.7 Acquiring petroleum products by exchange.
(a) General. DOE may, through certified contracting officers,
conduct petroleum product acquisitions through the exchange of
petroleum products. Exchanges are conducted through emergency requests
or by solicitation.
(b) Emergency Requests.
(1) Notwithstanding the requirements of Section 626.5, the
requirements of this subsection shall control all exchanges by
emergency request.
(2) At any point, in the event of an emergency, a requestor may
request, in writing, for an exchange of petroleum product from the SPR.
(3) All requests shall include the following:
(i) A justification of need that describes:
(A) The emergency event,
(B) The emergency event's impact on the requestor, and
(C) The requestor's inability to acquire petroleum product from an
alternative source;
(ii) The quantity of petroleum product (in barrels) requested;
(iii) The quality specifications of petroleum product requested;
and
(iv) The anticipated duration of the emergency event.
(4) Upon receipt of an emergency request, DOE will verify the
emergency, evaluate the need, and assess the market to ensure there is
no alternative source of petroleum products available to the requester.
DOE, in its sole discretion, may approve or disapprove any emergency
request.
(5) Upon approval of an emergency request, DOE may enter into
contract negotiations with the requestor.
(6) Repayment to the SPR for an exchange by emergency request shall
be in the form of barrels of petroleum products, or another form of
repayment as permitted by law, and shall include the following to be
returned to the SPR by the contracted date:
(i) The principal amount of petroleum products provided to the
requestor;
(ii) A premium; and
(iii) Costs incurred by DOE in conducting the emergency request.
(c) Solicitation for Exchange.
(1) A solicitation for exchange:
(i) May be either continuously open or fixed for a period of time;
(ii) Shall advertise the quantity and quality specification of
petroleum product available for exchange;
(iii) May provide either for immediate delivery or for delivery at
future dates to a bidding entity;
(iv) May, in DOE's sole discretion, include a rate table from which
offerors may offer dates for repayment; and
(v) May require financial guarantees from offerors in the form of a
letter of credit or equivalent financial assurance to accompany their
bids.
(2) In conducting the bidding and selection process:
(i) Offerors shall follow the instructions to offerors included in
the solicitation;
(ii) DOE shall evaluate and select bids that best support national
energy security goals, the availability of petroleum products and
storage capacity, and need for specific grades and quantities of
petroleum products; and
(iii) Upon selection of a successful bid, DOE shall notify the
apparently successful offeror.
(3) Repayment to the SPR for an exchange by solicitation shall be
in the form of barrels of petroleum products or another form of
repayment as permitted by law, and may be calculated based on any rate
table, if applicable, and shall include the following:
(i) Principal amount of petroleum product owed to SPR in the case
of an exchange or a deferred contractually scheduled delivery;
(ii) Costs incurred by DOE in conducting the exchange; and
(iii) A premium for each prospective date for repayment.
(4) Based on the market analysis described in paragraph (c)(5) of
this section, DOE may refuse offers, decrease the rate of acquisition,
or suspend the exchange process if DOE determines acquisition will add
significant upward pressure to prices either regionally or on a
worldwide basis. DOE may consider recent price changes, private
inventory levels, petroleum product acquisition by other stockpiling
entities, the outlook for world petroleum products production,
incipient disruptions of supply or refining capability, logistical
problems for moving petroleum products, macroeconomic factors, and any
other considerations that may be pertinent to the balance of petroleum
product supply and demand.
(5) Market analysis.
(i) DOE shall establish a market value for each petroleum product
to be acquired based on a market analysis at the time of contract
award.
(ii) DOE may consider prices on futures markets, spot markets,
recent price movements, current and projected shipping rates, forecasts
by the DOE Energy Information Administration, and any other analytic
tools available to DOE to determine the most desirable purchase
profile.
(iii) DOE may also consider factors including recent price changes,
private inventory levels, petroleum product acquisition by other
stockpiling entities, the outlook for world petroleum product
production, disruptions of supply or refining capability, logistical
problems for moving petroleum products, macroeconomic factors, and any
other considerations that may be pertinent relevant to the balance of
petroleum product supply and demand.
Sec. 626.8 Deferrals of contractually scheduled deliveries.
(a) General.
(1) DOE prefers to take deliveries of petroleum products for the
SPR at times scheduled under applicable contracts.
[[Page 47659]]
However, in the event the market is distorted by disruption to supply
or other factors, DOE may defer scheduled deliveries or consider
deferral requests from awardees.
(2) An awardee seeking to defer scheduled deliveries of petroleum
products to the SPR may submit a deferral request to DOE.
(b) Deferral criteria. DOE shall only grant a deferral request for
negotiation under paragraph (c) of this section if it determines that
DOE can receive a premium for the deferral and, based on DOE's deferral
analysis, that at least one of the following conditions exists:
(1) DOE can reduce the cost of its petroleum products acquisition
per barrel and increase the volume of petroleum products being
delivered to the SPR by means of the premium barrels required by the
deferral process;
(2) DOE anticipates private inventories are approaching a point
where unscheduled outages may occur;
(3) There is evidence that refineries are reducing their run rates
for lack of feedstock; or
(4) There is an unanticipated disruption to petroleum product
supply.
(c) Negotiating terms.
(1) If DOE decides to negotiate a deferral of deliveries, DOE shall
estimate the market value of the deferral and establish a strategy for
negotiating with suppliers the minimum percentage of the market value
to be taken by the Government. During these negotiations, if the
deferral request was initiated by DOE, DOE may consider any reasonable,
customary, and applicable costs already incurred by the supplier in the
performance of a valid contract for delivery. In no event shall such
consideration account for any consequential damages or lost profits
suffered by the supplier as a result of such deferral.
(2) DOE shall only agree to amend the contract if the negotiation
results in an agreement to give the Government a fair and reasonable
share of the market value.
Sec. 626.9 Suspension and pre-drawdown diversion.
Where the Secretary has found that a severe energy supply
interruption may be imminent, the Secretary may suspend any previously
announced or contracted acquisition of any petroleum product by the SPR
or injection of petroleum products into the SPR; or sell any petroleum
product acquired for injection into the SPR that has not yet been
injected into the SPR.
[FR Doc. 2022-16081 Filed 8-3-22; 8:45 am]
BILLING CODE 6450-01-P