Current through Register Vol. 63, No. 9, September 1, 2024
(1) Scope and Purpose: The state set-aside
shall be utilized by the State Office to meet hardship and emergency
requirements of all wholesale purchaser-consumers and end-users of motor
gasoline and middle distillates within Oregon. The State Office may direct that
a wholesale purchaser-reseller be supplied from the state set-aside in order
that it can supply wholesale consumers and end-users experiencing hardship of
emergency
NOTE: Under Special Rule 7, the wholesale
purchaser-seller must have had a supplier/purchaser relationship with the
wholesale purchaser-consumer or end-user on March 1, 1979.
(2) Who May Apply: A wholesale
purchaser-consumer or an end-user seeking an assignment from the state
set-aside system to meet a hardship or emergency requirement, and a wholesale
purchaser-reseller seeking an assignment to enable him to supply such wholesale
purchaser-consumer and/or end-user, may apply.
(3) Where to File: All applications under
these programs shall be made to the State Office, Department of Energy, Room
102 Labor and Industries Building, Salem, OR 97310, Attention: Allocation
Officer.
(4) What to File:
Applications for assignment from the state set-aside system may be by the
appropriate State Office form, or other written communication, or by oral
(including telephonic) request. Oral applications must be supplemented with a
written certification of the hardship or emergency circumstances within ten
days. The federal and state penalties for falsifying information for written
applications also apply to information submitted as oral applications. The
State Office may require any reasonable information needed to verify the
validity of the applicant's claims.
(5) Content of Application:
(a) An applicant shall provide sufficient
information to enable the State Office to determine that the proposed
allocation satisfies the objective of the EPAA and 10 CFR Part
211. An applicant must file its application on the application form
required by the State Office;
(b)
If the applicant is a wholesale purchaser-reseller, it shall describe the
wholesale purchaser-consumers and end-users that will be supplied and their
hardship and emergency requirements;
(c) The State Office may return incomplete
applications or require additional information needed to verify information
contained in an application.
(6) State Office Evaluation:
(a) Investigation: The State Office may
initiate an investigation of the application and utilize in its evaluation any
relevant facts obtained. The applicant shall be afforded an opportunity to
respond to any third-person submissions obtained. The State Office may convene
a conference if it considers that doing so will advance its
evaluation;
(b) Criteria:
(A) Assignments shall be made only to
applicants who demonstrate hardship or emergency requirements. Pursuant to
10 CFR Subsection 211.103(b), the following uses are considered
top priority uses: essential military and readiness-oriented operations of the
Department of Defense; agricultural production; emergency services; energy
production; sanitation services; telecommunication services; passenger
transportation services; aviation ground support vehicles and equipment; and
cargo, freight and mail hauling by truck. The State Office will consider these
priorities for both gasoline and diesel oil. While considering these
priorities, the State Office will also give due consideration to the degree of
hardship or emergency suffered, or likely to be suffered, if an assignment is
not given. The State Office may also take action to avoid localized or regional
hardships which can be alleviated by state assignments. Any situation which
poses an immediate threat to life, health, or safety will take presidence over
other priorities;
(B) The State
Office may use the set-aside for motor gasoline to meet the supply needs of
motor gasoline retailers who have experienced or will experience a supply
shortage resulting in hardship or economic dislocation. Gasoline retailers
applying for assignments of volumes to alleviate a supply shortage must follow
the procedures set forth in these rules. Assignments to meet the hardship and
emergency requirements of wholesale purchaser-consumers and end-users will be
given priority by the State Office over assignments to motor gasoline
retailers;
(C) Any assignment
ordered by the State Office shall conform to the requirements of Section
4(b)(1) of the EPAA and 10 CFR 211.17 .
(7) State Action:
(a) All hardship and emergency applications
for assignment from the state set-aside shall be filed with and resolved by the
State Office in accordance with these rules. Applicants shall identify their
existing supplier, or if they do not have a supplier, make reasonable efforts
to locate two suppliers which could provide the allocated product. The State
Office may assign a supplier to an applicant who does not have a supplier or
whose existing supplier terminates service;
(b) If the State Office approves a hardship
or emergency application, it shall assign a prime supplier and an amount from
the state set-aside to the applicant. To determine an appropriate prime
supplier, the State Office may coordinate with the state representative of the
prime suppliers;
(c) The State
Office has the authority to cross-assign end-users or wholesale purchasers, if
such cross-assignment does not result in undue hardship and is necessary to
alleviate inadequate supply allocation problems consistent with federal
regulations;
(d) Any order by the
State Office is binding on the applicant and its supplier and is effective
immediately upon issuance;
(e) The
final decision of the State Office as embodied in the order issued at the
completion of any appellate proceeding regarding an application for assignment
due to hardship or emergency requirements shall be subject to judicial review
as prescribed by Section 211 of the Economic Stabilization Act of 1970.
NOTE: With respect to final decisions on middle
distillates, the final decision of the State Office may be appealed to the
Region X Office of the US DOE.
(8) Authorizing Document: The State Office
shall issue to an applicant granted an assignment an authorizing document, and
shall provide a copy to the designated state representative of the assigned
prime supplier and to the designated distributor, jobber or reseller, if any.
The authorizing document is effective upon issuance, and represents a call on
the prime supplier's set-aside volumes for the month of issuance, irrespective
of the fact that delivery of the product subject to the authorizing document
cannot be made until the following month. An order shall be issued by the State
Office for all applications unless the application is withdrawn by the
applicant or unless the applicant fails to complete the application as required
by section (5) of this rule. If not presented to either the prime supplier or
its designated local distributor within ten days of issuance, the document
expires.
(9) Decision and Order:
(a) The State Office shall issue its decision
in the form of an order denying or granting the application. (For purposes of
this section, an order may be the "authorizing document" referred to in section
(8) of this rule.);
(b) The order
shall include a brief written statement summarizing its factual and legal
bases, and shall provide that any person aggrieved by it may file an appeal
with the State Office;
(c) The
order shall state that it is effective upon issuance and, if affirmative, that
it expires within ten days unless presented to the prime supplier or its
designated local representative;
(d) The State Office shall provide a copy of
the order upon the applicant, and the prime supplier's designated state
representative.
(10)
Timeliness:
(a) If the State Office fails to
take action on an application under the state set-aside program within ten days
of filing or, under the assignment to new end-users program, within 90 days of
filing, it shall be deemed denied in all respects, and the applicant may
appeal;
(b) The State Office may
temporarily suspend the running of the ten-day period if it finds that
additional information is necessary or that the application was improperly
filed. The temporary suspension shall remain in effect until the State Office
deems the deficiencies cured and so notifies the applicant.
(11) Appeal: Any person aggrieved by the
state set-aside assignment order may file an appeal with the State Office in
accordance with the procedures established in these rules. The appeal shall be
filed within 15 days of services of the order in a set-aside proceeding and
within 30 days of service of the order in an assignment proceeding. There has
not been an exhaustion of administrative remedies until an appeal has been
filed and the appellate proceeding is completed by the issuance of an order
granting or denying the appeal.
Publications: The publication(s) referred to or incorporated
by reference in this rule are available from the
agency.
Stat. Auth.: ORS 469
Stats. Implemented: ORS
469.030
