sidual fuel oil in order to increase the relative output of that product or residual fuel oil in short supply. Such directives may require either percentage changes in yields or changes in yields that would permit the refiner(s) to supply a product or residual fuel oil at specified levels. The ERA may direct a refiner or refiners to adjust yields of a particular refined petroleum product or residual fuel oil for a specific refinery or on a geographic or national basis.

(3) Joint Compliance. Upon approval by the ERA, two or more refiners may adjust their base percentage yield of a particular refined petroleum product or residual fuel oil on a pooled basis such that the combined production of that product or residual fuel oil by the two or more refiners would equal the combined production of those refiners if each refiner had separately equalled or exceeded its base percentage yield of that product or residual fuel oil.

(d) Allocation of crude oil. The ERA may adjust the quantities of crude oil allocated among refiners pursuant to this Standby Regulation in a manner designed to ensure desired production levels of refined petroleum products or residual fuel oil in short supply for which an adjusted base percentage yield has been directed. Such adjustments shall be designed to meet the objectives of this Standby Regulation, so that refiners which increase production in excess of their adjusted percentage yield of that product or residual fuel oil, or which decrease production to less than the adjusted percentage yield of that product or residual fuel oil, may be allocated greater or lesser quantities of crude oil during the next allocation period, respectively.

8. Special allocation procedures. When the provisions of this Standby Regulation are in effect, the Administrator may order the following amendments to paragraphs (c) and (i) of § 211.65 and, in that event, paragraphs 3, 4 (except the definitions of "Administrator," "DOE" and "ERA"), 5, 6 and 7 of this Standby Regulation shall not be in effect:

(a) Paragraph (c) may be amended by revising the heading and subparagraph (2) to read as follows:

(c) Review of eligibility for allocations, adjustments to purchase opportunties, and emergency allocations.

(2)(i) Notwithstanding any provision of § 211.62 or any other provision of this section, upon application at any time by any refiner, the ERA may grant that refiner an emergency allocation for one or more allocation periods, or for part of an allocation period, the effect of which shall be to maintain that refiner's crude oil supplies at a level equivalent to that refiner's supply level for the corresponding period of the previous year: Provided, That, such refiner shall be required to demonstrate that it is

incurring, or will incur in the allocation period for which the allocation is sought, a significant reduction, due to circumstances over which such refiner reasonably had no control, in its supply of crude oil due directly or indirectly to shortages of crude oil in the world markets. Each application shall contain the information (including documentation where appropriate) necessary for the ERA to determine that the applicant's reduction in crude oil supplies is due to circumstances over which the applicant reasonably had no control. In granting a request of a refiner for an emergency allocation, the ERA may direct one or more refiner-sellers to sell a suitable type of crude oil to such refiner pursuant to paragraph (j) of this section.

(ii) In the event the ERA grants an emergency allocation to any refiner that is a refiner-seller under this section, that refinerseller shall be relieved of the appropriate portion of its sales obligation for a period of time as specified by the Administrator and the sales obligation of such refiner-seller so relieved shall be distributed on a pro-rata basis among all remaining refiner-sellers.

(iii) The ERA may (A) grant an emergency allocation to a refiner under this paragraph, (B) adjust any allocation or sales obligation shown on the buy/sell notice specified in paragraph (g) of this section or (C) issue one or more directed sales orders that would result in one or more refiner-sellers selling more than their published sales obligations for that allocation period pursuant to paragraph (3) of paragraph (j) of this section, without issuing a supplemental buy/ sell notice listing such emergency allocations, adjustments to allocations or increased sales obligations: Provided, That, no such directed sale shall increase any refinerseller's sales obligation by more than twenty-five percent (25%) and any such directed sale amounts shall serve to reduce the refiner-seller's obligation in the next allocation period.

(b) Paragraph (i) may be amended by revising paragraph (4) to read as follows:

(4) All crude oil sold pursuant to this section to refiners other than small refiners shall be priced in accordance with the provisions in Standby Regulation 212-1, Appendix A, Part 212. All crude oil sold pursuant to this section to small refiners whose DOE certified crude oil refining capacity is 50,000 barrels per day or less shall be priced in accordance with the provisions in § 212.94 of this chapter. With respect to sales of crude oil pursuant to this section to refiners whose DOE certified crude oil refining capacity is greater than 50,000 barrels per day but less than 175,000 barrels per day, the Administrator may determine that either the provisions in § 212.94 of this chapter or

the provisions in Standby Regulation 212-1. Appendix A, Part 212 shall apply.

(Emergency Petroleum Allocation Act of 1973, 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, Pub. L. 93-275, as amended, Pub. L. 94-385, Energy Policy and Conservation Act, Pub. L. 94-163, as amended, Pub. L. 94-385; E.O. 11790, 39 FR 23185; Department of Energy Organization Act, Pub. L. 95-91; E.O. 12009, 42 FR 46267) [44 FR 3423, Jan. 16, 1979. Redesignated and amended at 44 FR 37939, June 29, 1979; 45 FR 55378, Aug. 19, 1980]

1. Purpose. The provisions of this special rule shall be ordered into effect if necessary to attain the objectives of section 4(b)(1) of the Emergency Petroleum Allocation Act of 1973, as amended.

2. Scope. This special rule applies to any firm engaged in the production, distribution or consumption of refined petroleum products and residual fuel oil produced or imported into the United States. This special rule may be ordered into effect with respect to any product subject to the provisions of Part 211 and, to the extent the Mandatory Petroleum Allocation Regulations are reimposed on any product previously exempted, this rule may be made effective as to such product. During the time period this special rule is in effect it supersedes any inconsistent provision of this part.

3. Applicability. Unless the Secretary of Energy shall determine otherwise, the provisions of this special rule shall take effect, and remain in effect, if the international crude oil allocation provisions of the International Energy Agreement take effect. Any or all of the provisions of this special rule may also be ordered into effect at any time by the Administrator of the Economic Regulatory Administration ("the Administrator"). The Administrator may apply the provisions of this rule on either a national or regional basis upon any category of refined petroleum product or products and residual fuel oil, and with respect to any class of persons or class of transactions.

4. Definitions. For the purposes of this special rule:

"Excess product" means the volume of available supply for a base period which results after (1) a supplier has met all of its base period obligations for those end uses not subject to an allocation fraction and (2) has applied an imposed allocation fraction to the remainder of its supply obligations. "Imposed allocation fraction" means the maximum proportion of a supplier's total adjusted base period supply obligations for

all purchasers subject to an allocation fraction (as calculated in § 211.10(b)(2) for any refined product or products) that a supplier is permitted to supply pursuant to an order issued by the Administrator under this Special Rule.

"Maximum storage capability” means the maximum volume of product or products that a firm can store using its facilities in place at the time an order is issued. Such capability shall include, but is not limited to, facilities owned, leased or otherwise available to a firm.

5. Imposed Allocation fractions. (a) When the provisions of this special rule take effect, the Administrator may, by order, impose maximum allocation fractions.

(b) Suppliers shall not supply any amounts of product in excess of those amounts permitted under the order issued by the Administrator. To the extent that a supplier does not have enough supply to meet the imposed allocation fraction, there is no requirement to obtain additional product and lesser allocation fractions may be declared as calculated in § 211.10(b).

(c) If the supply obligation under the maximum imposed allocation fraction for each product subject to this special rule cannot be met, suppliers subject to an order issued by the Administrator shall notify ERA within five days of making that determination. Such notification shall be made to the DOE national office unless otherwise specified by the Administrator.

(d) Each supplier subject to an order issued under this Special Rule shall (i) hold all excess product in storage up to the amount of product such firms would use or distribute during any 90-day period of peak usage and (ii) report to ERA any excess product which has accumulated or will accumulate in excess of its maximum storage capability. Nothing in this paragraph shall be construed as requiring any firm to make physical additions to storage facilities in order to comply with this rule.

(e) In the event that a firm accumulates an amount of excess product which is the lesser of (i) the amount of product that firm would use or distribute during any 90-day period of peak usuage or (ii) the total available capacity of that firm's storage facilities, then, subject to redirection by the Administrator, such excess product may be distributed first to meet the rest of its base period supply obligations and then as surplus product under § 211.10(g)(5).

(f) As ordered by the Administrator, for each base period suppliers shall notify ERA of the volume of excess product when storage capabilities are projected to be exceeded, and, in any event, no later than 48 hours before the maximum storage capability will be attained.

(g) Notification to ERA by suppliers shall be by telephone or any other manner specified by the Administrator to the ERA National office.

6. Adjustments and Use Limitations for Kerosene-Base Jet Fuel, Middle Distillates and Residual Fuel Oil. When the provision of this special rule are in effect as to either kerosene-base jet fuel, middle distillates or residual fuel oil, the Administrator may, by general or special order:

(a) Adjust downward a wholesale purchaser's base period use of kerosene-base jet fuel, middle distillates or residual fuel oil which is used for industrial, electric utility, or refinery fuel use: Provided, That (i) the wholesale purchaser has in place, or could reasonably have been expected to have put in place, the facilities and the capability to use instead another source of energy and (ii) the other source of energy is available to it;

(b) Impose limitations on the use by wholesale purchaser-consumers of kerosenebase jet fuel, middle distillates and residual fuel oil for industrial, electric utility and refinery fuel use in excess of one hundred percent of their base period use, as adjusted pursuant to paragraph (a) of this section; and

(c) Adjust upward the base period use of kerosene-base jet fuel, middle distillates or residual fuel oil for a firm which demonstrates it (1) had a previous base period use of such product or products; (2) had switched to another source of energy in adequate supply and was therefore not using, or using decreased amounts of, kerosenebase jet fuel, middle distillates or residual fuel oil during a period subsequently designated as a base period; and (3) the source of energy to which the firm switched is no longer in adequate supply.

7. Proposed Amendments to Part 211. When the provisions of this special rule are in effect, the Administrator may order the following amendments to supersede or modify as set forth herein the following sections of this part:

(a) Section 211.2 may be amended by designating the present section as paragraph (a) and by adding a new paragraph (b) to read as follows:

§ 211.2 Relationship of subparts.

(a) Unless otherwise specified in Subparts D through K of this part, the general provisions set forth in this subpart apply to the mandatory allocation of all allocated products.

(b) Where inconsistent with the provisions of this part, Special Rule No. 1 to this part shall take precedence.

(b) Section 211.9 may be amended by revising paragraphs (a) and (b) to read as follows:

§ 211.9 Supplier/purchaser relationships.

(a) Supplier/wholesale purchaser relationship. (1) Each supplier of an allocated product shall supply all wholesale purchaser-resellers and all wholesale purchaser-consumers which purchased or obtained that allocated product from that supplier during the base period as specified in Subparts D through K of this part and Special Rule No. 1 to this part.

(b) Supplier/end-user relationship. Each supplier of an allocated product shall, to the maximum extent practicable, supply as of the date specified by the Administrator, all end-users which purchased that allocated product from that supplier during the base period or the interim period between the end of the base period and the effective date of these provisions and which are entitled to an allocation level under the provisions of Subparts D through K of this part.

(c) Section 211.10 may be amended as follows: Paragraphs (a) and (e) are revised, paragraph (f), paragraph (3) is deleted and paragraph (g), paragraphs (1) and (5) are revised.

§ 211.10 Suppliers' method of allocation.

(a) General. (1) Suppliers of allocated products shall allocate all their allocable supply in accordance with the provisions of this section unless otherwise specified in Subparts D through K of this part or in Special Rule No. 1 of this part. Each supplier shall determine its allocation fraction pursuant to the provisions of paragraph (b) of this section. Suppliers shall then allocate to wholesale purchasers and end-users in accordance with the provisions of paragraph (c) of this section. Suppliers of end-users without allocation levels shall allocate their allocable supply in accordance with the provisions of paragraph (d) of this section. The method of allocation for new suppliers is specified in paragraph (e) of this section. Suppliers with allocation fractions less than one (1.0) must act in accordance with the provisions of paragraph (f) of this section, while suppliers with allocation fractions in excess of one (1.0) must act in accordance with the provisions of paragraph (g) of this section. Suppliers which sell products with different uses which are subject to allocation under more than one subpart shall determine the applicable subpart by reference to paragraph (h) of this section.

(e) New supplier. (1) A supplier which was not a base period supplier but was a supplier during the interim period after the end of

the base period but before the date specified by the Administrator under Special Rule No. 1 to this part, shall supply, in accordance with the provisions of this section, (i) wholesale purchasers which it supplied as of a date specified by the Administrator and which have no base period supplier; (ii) any assigned purchasers; (iii) new wholesale purchasers acquired during the interim period described in this paragraph (e)(1) in accordance with the provisions of § 211.12; and (iv) to the maximum extent possible, end-users. (2) A supplier which was not a supplier prior to the date specified by the Administrator under Special Rule No. 1 to this part shall be considered to have no supply obligation and shall not allocate supplies to any purchaser without ERA approval.

(f) Allocation fractions less than one. (3) [Deleted]

(g) Allocation fractions greater than one(1) General. Unless otherwise directed by the ERA, in allocating allocable supplies of any allocated product among wholesale purchasers and end-users, no supplier may use an allocation fraction greater than one (1.0) except as provided herein. Propane and butane imported and distributed by suppliers pursuant to § 211.12(g) shall be subject only to the provisions of paragraph (g)(8), of this section.

extent that such category of purchasers is willing to accept it, at least the same proportion of the supplier's surplus product as the total base period volumes (prior to any adjustments) of non-branded independent marketers which are entitled to receive an allocation from that supplier bear to the total base period volumes (prior to any adjustments) of all purchasers including those assigned by ERA, which are entitled to receive an allocation from that supplier; and (ii) the supplier may not supply to retail sales outlets owned and operated by the supplier, in the aggregate, a greater proportion of the supplier's surplus product than the total base period volumes (prior to any adjustments) of all such retail sales outlets bear to the total base period volumes (prior to any adjustments) of all purchasers, including those assigned by ERA, which are entitled to receive an allocation from that supplier unless the supplier first offers surplus product to and meets all requests for surplus product from all independent marketers which are entitled to receive an allocation from that supplier to the extent required in clause (i) of this paragraph. Provided, That a supplier shall not be required to offer surplus product available for distribution during a period corresponding to a base period to any purchaser which has refused to lift all of its allocation entitlement in that same period corresponding to a base period.

(5) Distribution of surplus product. Any supplier subject to paragraph (2) or any supplier which reports pursuant to paragraph (3) of this paragraph and which is not notified to the contrary within five (5) days of receipt by ERA of the supplier's notification under paragraph (3) of this paragraph, may distribute its surplus product at its discretion except that (i) the supplier shall offer, to each purchaser a volume based on the aggregate pro-rata volume supplied during the base period in the category of (A) wholesale purchaser-resellers which are entitled to receive an allocation from that supplier and which are branded independent marketers, to the extent that such category of purchaser is willing to accept it, at least the same proportion of the supplier's surplus product as the total base period volumes (prior to any adjustments) of branded independent marketers which are entitled to receive an allocation from that supplier bear to the total base period volumes (prior to any adjustments) of all purchasers, including those assigned by ERA, which are entitled to receive an allocation from that supplier; and (B) wholesale purchaser-resellers which are entitled to receive an allocation from that supplier and which are non-branded independent marketers, to the

(d) Section 211.12 may be amended as follows: Paragraph (c), paragraph (e), paragraph (2)(i), and paragraph (g) are revised and paragraph (h), paragraphs (5) and (6) are deleted.

§ 211.12 Purchasers allocation entitlement.

(c) Base period volume determination. (1) Within fifteen (15) days after the date specified by the Administrator under Special Rule No. 1 to this part, each supplier which sells an allocated product to a wholesale purchaser or end-user entitled to an allocation level which is a percentage of a base period use shall report to each of those purchasers with respect to each allocated product, the volume of product which it sold to or transferred to that purchaser in each base period.

(3) If the supplier and purchaser are unable to resolve their differences, the supplier shall commence allocation based on the supplier's records, in accordance with

the allocation provisions in this part, and the purchaser shall make application to the appropriate ERA office for a corrected base period volume in accordance with ERA forms and instructions. Copies of the purchaser's records for base period purchases should be included with the application.

(4) If the ERA determines that the purchaser's application for a corrected base period volume is valid it may order the supplier to adjust the purchaser's base period and to supply the purchaser with additional volumes of the allocated product equal to the adjusted amount the purchaser should have received if allocation had initially been based on the corrected base period volume.

(e) New wholesale purchasers.

(2) New wholesale purchaser-resellers. (i) Suppliers which have accepted as new purchasers wholesale purchaser-resellers after the end of the base period but prior to the date specified by the Administrator under Special Rule No. 1 to this part, shall notify ERA of the names of all such new purchasers, the proposed base period volume for each purchaser and the basis upon which the proposed base period volume was determined. Such notification shall be received by ERA within fifteen (15) days of the date specified by the Administrator. The proposed base period volume is subject to adjustment by ERA. ERA may also assign the wholesale purchaser-reseller to another supplier. Suppliers may provide interim supplies to such wholesale purchaser-resellers pending ERA assignment of a supplier and a base period volume.

(g) Importers.

(2) Supplier importers of propane and butane.

(vi) Products that are imported under paragraph (g) of this section shall be subject to orders issued under Special Rule No. 1 to this part.

(h) Curtailment of certain energy sources pursuant to Federal or State rule or order.

(5) [Deleted] (6) [Deleted]

(e) Section 211.13 may be amended by revising paragraph (a), deleting paragraph (b), relettering the remaining paragraphs and revising paragraph (e), the relettered paragraph (f), to read as follows:

§ 211.13 Adjustments to base period volume. (a) Scope. ***

(2) Paragraph (b) of this section provides for adjustments to a wholesale purchaserreseller's entitlements of purchasers which are occasioned by new assignments to

(b) Adjustments to a wholesale purchaserreseller's base period for new and increased allocation entitlements of purchasers.

(c) Adjustments for increased current requirements. ***

(d) Additional Adjustments. ***

(e) Certifications and downward adjustments of base period uses. (1) The chief executive officer (or his authorized agent) of a purchaser applying to a supplier for an adjustment under this section shall certify such application for accuracy. Such allocation shall contain a statement that increased allocation shall be used only for the purpose stated in the application, shall not be diverted for other uses; and that if its needs decline, the purchaser shall file an amended application to ERA for a downward adjustment to its base period use.

(2) Each supplier shall report to the appropriate ERA Regional Office when (A) any one of its base period purchasers purchases less than 80% of its base period entitlements during each of two consecutive months or quarters corresponding to the relevant base period; (B) these purchases of volumes less than base period entitlements indicate a decline in the purchaser's needs and (C) the supplier has not been notified of a downward adjustment to its purchaser's base period volume.

(3) ERA may order a downward adjustment to a purchaser's base period volumes and the respective supplier's obligations whenever ERA determine that a decline in the purchaser's needs has occured.