AUTHORITY: Emergency Petroleum Allocation Act of 1973, 15 U.S.C. 751 et seq., Pub. L. 93-159, as amended, Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133, Pub. L. 94-163, and Pub. L. 94-385; Federal Energy Administration Act of 1974, 15 U.S.C. 787 et seq., Pub. L. 93-275, as amended, Pub. L. 94-332, Pub. L. 94-385, Pub. L. 95-70, and Pub. L. 95-91; Energy Policy and Conservation Act, 42 U.S.C. 6201 et seq., Pub. L. 94-163 as amended, Pub. L. 94-385, and Pub. L. 95-70; Department of Energy Organization Act, 42 U.S.C. 7101 et seq., Pub. L. 95-91; E.O. 11790, 39 FR 23185; E.O. 12009, 42 FR 46267.

SOURCE: 45 FR 55379, Aug. 19, 1980, unless otherwise noted.

Subpart A-General Provisions

§ 220.1 Purpose and scope.

(a) This part implements section 161(e) of the Energy Policy and Conservation Act (Pub. L. 94-163) (42 U.S.C. 6231), as amended, which authorizes the Secretary of Energy to provide for the allocation of any petroleum product withdrawn from the Strategic Petroleum Reserve.

(b) Applicability. This part applies to any allocation of SPR crude oil, other than distribution by price competition, whether or not conducted pursuant to § 211.65 of this chapter (Buy/Sell Program), Standby Regulation 211-1, Appendix A, Part 211, (Standby Mandatory Crude Oil Allocation and Refinery Yield Control Programs), or this part.

§ 220.2 Definitions.

"Basic Sales Agreement" means a document issued by DOE containing many of the terms and conditions of any contract which may be awarded

for the purchase of SPR crude oil from the Government.

"DOE" means the Department of Energy established by the Department of Energy Organization Act (Pub. L. 95-91), and includes the Secretary of DOE or his delegate.

"Notice of Sale" means the document (other than the buy/sell notice specified in § 211.65(g) of this chapter) issued by DOE announcing the sale of SPR crude oil. The Notice of Sale will specify the method of sale, eligibility to purchase, prices, applicable terminalling, handling and transportation charges, the crude oil types and quantities available for purchase, the sales period, delivery location(s), minimum and maximum volume restrictions, place and date for submission of offers, modes of transportation applicable for each delivery point (i.e., pipeline, barge, tanker and applicable port data/restrictions), special terms and conditions of sale, and the criteria to be employed in evaluating offers to purchase.

"Strategic Petroleum Reserve (SPR)" means the program for the storage of crude oil and/or petroleum products authorized by Title I, Part B of the Energy Policy and Conservation Act (EPCA), 42 U.S.C. section 6231 et seq.

"SPR crude oil" means crude oil stored in or acquired for storage in the SPR, or for the distribution thereof. For the purposes of Subpart C, Part 211 of this chapter, such crude oil shall be considered as imported crude oil.

sions of § 211.65 (Buy/Sell Program) of this chapter, (2) pursuant to the provisions of Standby Regulation 2111, Appendix A, Part 211 (Standby Mandatory Allocation and Refinery Yield Control Programs) of this chapter, or (3) to any refiner, in accordance with criteria announced in a Notice of Sale.

(b) No volumes of SPR crude oil sold to any firm pursuant to paragraph (a)(3) of this section shall be sold or otherwise disposed of by such firm except pursuant to (1) crude oil exchanges in which only quality and location differentials are given effect in the calculation of the exchange ratio or (2) matching purchase and sale transactions which have the same effect as an exchange described in paragraph (b)(1) of this section.

"High sulfur crude oil" means crude oil the sulfur content of which is equal to or greater than 0.6% (six-tenths of one percent) by weight.

"Low sulfur crude oil" means crude oil the sulfur content of which is less than 0.6% (six-tenths of one percent) by weight.

"Imported crude oil" means crude oil brought into the United States from a foreign country for consumption within the United States, but excluding crude oil stored in, or owned and controlled by the United States Government in connection with the SPR.

(a) DOE shall establish the price at which low sulfur SPR crude oil and high sulfur SPR crude oil shall be sold, plus any gravity, and sulfur content adjustments as specified in paragraphs (b) and (c), respectively, of this section. The sale prices of SPR crude oils shall not be significantly higher or significantly lower than the highest and lowest prices, respectively, in comparable sales of allocated crude oil in the month of sale. In determining the prices of SPR crude oils, the DOE shall consider (1) the weighted average per barrel landed cost (as defined in § 212.82) for all low sulfur crude oil and for high sulfur imported crude oil delivered to all U.S. refiners in the month of sale; (2) the data on the Transfer Pricing Report ERA-51 (or any successor to this form), wherein refiners report crude oil prices obtained in transactions between affiliated entities and in transactions between non-affiliated entities pursuant to 10 CFR 212.84; and (3) other data that the DOE considers to be appropriate for price determination purposes.

(b) a price adjustment shall be made for gravity differentials of SPR crude oil offered for sale by adding to or subtracting from the price determined under paragraph (a) of this section an amount per barrel fixed monthly by the DOE for each degree API that the

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crude oil being offered for sale is above or below, respectively, the weighted average degree API of the reference crude oil of the same sulfur content category, established monthly by the DOE.

(c) a further price adjustment shall

be made for sulfur content differentials of SPR crude oil offered for sale by adding to or subtracting from the price determined under paragraph (a) of this section an amount per barrel fixed monthly by the DOE for each one tenth of one percent that the sulfur content by weight of the SPR crude oil being offered for sale is either below or above, respectively, the percentage representing the sulfur content of the reference crude oil of the same sulfur content category established monthly by the DOE.

221.31 Requests by DOD.

221.32 Evaluation of DOD request. 221.33 Order.

221.34 Effect of order.

221.35 Contractual requirements. 221.36 Records and reports. 221.37 Violations and sanctions.

AUTHORITY: Defense Production Act, 50 U.S.C. App. 2061 et seq., E.O. 10480 (18 FR 4939, Aug. 18, 1953) as amended by E.O. 12038 (43 FR 4957, Feb. 7, 1978), and E.O. 11790 (39 FR 23785, June 27, 1974).

SOURCE: 45 FR 76433, Nov. 19, 1980, unless otherwise noted.

Subpart A-General

§ 221.1 Scope.

This part sets forth the procedures to be utilized by the Economic Regulatory Administration of the Department of Energy and the Department of Defense whenever the priority supply of crude oil and petroleum products is necessary or appropriate to meet national defense needs. The procedures available in this part are intended to supplement but not to supplant other regulations of the ERA regarding the allocation of crude oil, residual fuel oil and refined petroleum products.

§ 221.2 Applicability.

For purposes of this part—

"Directive" means an official action taken by ERA which requires a named person to take an action in accordance with its provisions.

"DOD" means the Department of Defense, including Military Departments and Defense Agencies, acting through either the Secretary of Defense or the designee of the Secretary.

"ERA" means the Economic Regulatory Administration of the Department of Energy.

"National defense" means programs for military and atomic energy production or construction, military assistance to any foreign nation, stockpiling and space, or activities directly related to any of the above.

"Person" means any individual, corporation, partnership, association or any other organized group of persons, and includes any agency of the United States Government or any other government.

"Priority-rated supply order" means any delivery order for crude oil or petroleum products issued by DOD bearing a priority rating issued by ERA under this part.

"Supplier" means any person other than the DOD which supplies, sells, transfers, or otherwise furnishes (as by consignment) crude oil or petroleum product to any other person.

Subpart D-Administrative Procedures and Sanctions

§ 221.31 Requests by DOD.

(a) When DOD finds that (1) a fuel supply shortage for DOD exists or is anticipated which would have a substantial negative impact on the national defense, and (2) the defense activity for which fuel is required cannot be postponed until after the fuel supply shortage is likely to terminate, DOD may submit a written request to ERA for the issuance to it of a priority rating for the supply of crude oil and petroleum products.

(b) Not later than the transmittal date of its request to ERA, DOD shall notify the Federal Emergency Management Agency that it has requested a priority rating from ERA.

(c) Requests from DOD shall set forth the following: (1) The quantity and quality of crude oil or petroleum products determined by DOD to be required to meet national defense requirements; (2) the required delivery dates; (3) the defense-related activity and the supply location for which the crude oil or petroleum product is to be delivered; (4) the current or most recent suppliers of the crude oil or petroleum product and the reasons, if known, why the suppliers will not supply the requested crude oil or petroleum product; (5) the degree to which it is feasible for DOD to use an alternate product in lieu of that requested and, if such an alternative product can be used, the efforts which have been made to obtain the alternate product; (6) the period during

which the shortage of crude oil or petroleum products is expected to exist; (7) the proposed supply source for the additional crude oil or petroleum products required, which shall, if practicable, be the historical supplier of such crude oil or product to DOD; and (8) certification that DOD has made each of the findings required by paragraph (a).

§ 221.32 Evaluation of DOD request.

(a) Upon receipt of a request from DOD for a priority rating as provided in shall § 221.31, it be reviewed promptly by ERA. The ERA will assess the request in terms of (1) the information provided under § 221.31; (2) whether DOD's national defense needs for crude oil or petroleum products can reasonably be satisfied without exercising the authority specified in this part; (3) the capability of the proposed supplier to supply the crude oil or petroleum product in the amounts required; (4) the known capabilities of alternative suppliers; (5) the feasibility to DOD of converting to and using a product other than that requested; and (6) any other relevant information.

(b) The ERA promptly shall notify the proposed supplier of DOD's request for a priority rating specified under this part. The proposed supplier shall have a period specified in the notice, not to exceed fifteen (15) days from the date it is notified of DOD's request, to show cause in writing why it cannot supply the requested quantity and quality of crude oil or petroleum products. ERA shall consider this information in determining whether to issue the priority rating.

(c) If acceptance by a supplier of a rated order would create a conflict with another rated order of the supplier, it shall include all pertinent information regarding such conflict in its response to the show cause order provided for in subsection (b), and ERA, in consultation with DOD and the Federal Emergency Management Agency shall determine the priorities for meeting all such requirements.

(d) ERA may waive some or all of the requirements of § 221.31 or this section where the Secretary of De

(a) Issuance. If ERA determines that issuance of a priority rating for a crude oil or refined petroleum product is necessary to provide the crude oil or petroleum products needed to meet the national defense requirement established by DOD, it shall issue such a rating to DOD for delivery of specified qualities and quantities of the crude oil or refined petroleum products on or during specified delivery dates or periods. In accordance with the terms of the order, DOD may then place such priority rating on a supply order.

(b) Compliance. Each person who receives a priority-rated supply order pursuant to this part shall supply the specified crude oil or petroleum products to DOD in accordance with the terms of that order.

(c) ERA directives. Notwithstanding any other provisions of this part, where necessary or appropriate to promote the national defense ERA is authorized to issue a directive to a supplier of crude oil or petroleum product requiring delivery of specified qualities and quantities of such crude oil or petroleum products to DOD at or during specified delivery dates or periods.

(d) Use of ratings by suppliers. No supplier who receives a priority-rated supply order or directive issued under the authority of this section may use such priority order or directive in order to obtain materials necessary to meet its supply obligations thereunder.

§ 221.34 Effect of order.

Defense against claims for damages. No person shall be liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with any ERA authorized priority-rated supply order or ERA directive issued pursuant to this part, notwithstanding that such priority-rated supply order or directive

thereafter be declared by judicial or other competent authority to be invalid.

§ 221.35 Contractual requirements.

(a) No supplier may discriminate against an order or contract on which a priority rating has been placed under this part by charging higher prices, by imposing terms and conditions for such orders or contracts different from other generally comparable orders or contracts, or by any other means.

(b) Contracts with priority ratings shall be subject to all applicable laws and regulations which govern the making of such contracts, including those specified in 10 CFR 211.26(e).

§ 221.36 Records and reports.

(a) Each person receiving an order or directive under this part shall keep for at least two years from the date of full compliance with such order or directive accurate and complete records of crude oil and petroleum product deliveries made in accordance with such order or directive.

(b) All records required to be maintained shall be made available upon request for inspection and audit by duly authorized representatives of the ERA.

§ 221.37

Violations and sanctions.

(a) Any practice that circumvents or contravenes the requirements of this part or any order or directive issued under this part is a violation of the regulations provided in this part.

(b) Criminal Penalties. Any person who willfully performs any act prohibited, or willfully fails to perform any act required by this part or any order or directive issued under this part shall be subject to a fine of not more than $10,000 for each violation or imprisoned for not more than one year for each violation, or both.

(c) Whenever in the judgment of the Administrator of ERA any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of these regulations, the Administrator may make application to the appropriate court for an order enjoining