Chapter 4901:5-35 Application for Assignment Under State Set-Aside System

4901:5-35-01 Definitions.

As used in this chapter:

(A) "Commission" means the public utilities commission of Ohio.

(B) "Consumer" means a person who consumes heating oil, propane, or transportation fuel.

(C) "Customer" means a person legally responsible to pay for heating oil, propane, or transportation fuel.

(D) "Energy emergency" means:

(1) The governor has filed a written declaration of an energy emergency pursuant to section 4935.03 of the Revised Code, having found that the health, safety, or welfare of the residents of this state or of one or more counties of this state is so imminently and substantially threatened by an energy shortage with regard to heating oil, propane, or transportation fuel that immediate action of state government is necessary to prevent loss of life, protect the public health or safety, and prevent unnecessary or avoidable damage to property.

(2) Such written declaration is in effect and has not been terminated.

(E) "Fuel source advisory council" means the advisory group formed by the chairperson of the commission to monitor and advise the commission concerning fuel supply or energy shortages and related matters.

(F) "Heating oil " means all oil that can be used as boiler or space heating fuel, including kerosene, number two heating oil, and number six heating oil; but excluding fuel used primarily for internal combustion or other types of automotive transportation vehicles or equipment, such as gasoline, diesel, aviation and jet fuel, naphtha, butane, ethane, methane, and pentane; and excluding oil that is not used as boiler or space heating fuel, such as solvent, cutting oil, lubricating oil, and asphalt.

(G) "Person" means an individual, corporation, business trust, estate, trust, partnership, state or federal agency, or association.

(H) "Primary supplier" means a person who brings heating oil, propane, or transportation fuel into this state for first sale.

(I) "Priority use" and "nonpriority use" shall have the same meaning as assigned to these terms in rule 4901:5-29-01 of the Administrative Code when related to an energy emergency affecting heating oil or propane and in rule 4901:5-33-01 of the Administrative Code when related to an energy emergency affecting transportation fuel.

(J) "Program" means a state set-aside program established by the commission pursuant to the provisions of this chapter.

(K) "Propane" means a normally gaseous straight-chain hydrocarbon that is colorless and boils at a temperature of minus forty-three point sixty-seven degrees Fahrenheit. Propane is extracted from natural gas or refinery gas streams. It includes all products generally used for commercial purposes and products generally known as HD-5 propane.

(L) "Secondary supplier" means a person, including any wholesale purchaser or reseller or distributor, who sells heating oil, propane, or transportation fuel to customers and/or consumers in this state.

(M) "Transportation fuel" means all petroleum-based fuel that is used for internal combustion or other types of transportation vehicles or equipment, specifically including but not limited to gasoline, diesel, aviation gasoline, jet fuel, and fuel used by railroad locomotives and track-mounted equipment; but excluding kerosene, number two heating oil, number four heating oil, number six heating oil, naphtha, butane, ethane, methane, pentane, and all cutting oil, lubricating oil, and solvents.

Effective: 11/08/2012
R.C. 119.032 review dates: 08/23/2012 and 11/30/2016
Promulgated Under: 111.15
Statutory Authority: 4935.03
Rule Amplifies: 4935.03
Prior Effective Dates: 5/19/1991, 1/22/1998, 2/27/2010

4901:5-35-02 General provisions.

A state set-aside program may be established for heating oil, propane, and transportation fuel, for the purpose of providing relief to Ohio consumers experiencing an energy emergency. In such event, the following shall apply:

(A) Authority shall be delegated to the commission by order of the governor to administer the program. The program shall be utilized by the commission to meet emergency requirements of all consumers and customers within the state from program volumes, including state and local government consumers and customers. To facilitate relief of emergency requirements of consumers and customers, the commission may direct that a secondary supplier be supplied from amounts set aside by another primary or secondary supplier pursuant to the program, in order that the secondary supplier can supply the consumers and customers experiencing an emergency.

(B) Primary and secondary suppliers shall inform the commission, in accordance with paragraph (A)(7) of rule 4901:5-29-04 and paragraph (A)(8) of rule 4901:5-33-04 of the Administrative Code, of the product subject to the program and of the estimated volume of each product to be sold into the state for consumption within the state.

(C) The governor, after consultation with the chairperson of the commission, shall determine the program percentage level, not to exceed five per cent, for each product subject to the program.

(D) The set-aside volume available to the commission for a particular month pursuant to the program shall be calculated by multiplying the program percentage level by each primary and secondary supplier's estimated portion of its total supply for that month that will be sold into the state's distribution system for consumption within the state.

(E) The set-aside volume for a particular month can be accumulated or deferred. That set-aside volume shall be made available to the commission from stocks of primary and secondary suppliers, either directly or through their suppliers.

(F) The commission may authorize allocations from the program during this period for emergency needs only.

(G) Each primary and secondary supplier shall meet the full priority use consumer product requirements from available volumes. Each supplier shall reduce deliveries for nonpriority use to consumers sufficiently to assure priority use needs are met in full.

(H) The commission may accept applications for emergency allocations under the program from the secondary supplier who would supply the affected consumer. An application submitted by a secondary supplier for an allocation under the program, to supply verifiable consumer emergency needs, shall:

(1) Contain a statement of certifications, subject to the penalties of division (E) of section 4935.03 of the Revised Code, that:

(a) All information provided is truthful and accurate.

(b) No product volume granted from the program will be diverted to use other than the alleviation of the emergency use described in the application.

(c) The secondary supplier has delivered, or will deliver, one hundred per cent of all monthly supply volumes available to it to its end user customers.

(2) Identify the consumer's existing primary or secondary supplier or, if the consumer does not have an existing primary or secondary supplier, at least two primary or secondary suppliers (including one primary and one secondary supplier) that the applicant has contacted to provide the allocated product.

(3) Meet the requirements set forth in rule 4901:5-35-03 of the Administrative Code.

(I) The commission will make every effort to assure that consumers with emergency product needs will receive sufficient product. The allocation of product to and the fulfillment of an emergency need shall be considered a priority use.

(J) A secondary supplier requesting an allocation from the program may be requested to provide to the commission a list of those consumers for whom product is requested. This list shall identify the volume of each consumer's request, as well as the type of use for which application is made.

(K) All emergency applications for assignment from the program, and appeals therefrom, shall be filed with and resolved by the commission in accordance with this chapter. The final decision of the commission regarding an application for assignment due to emergency requirements shall be subject to and governed by Chapter 4903. of the Revised Code.

(L) If the commission approves an emergency application, it shall assign a supplier and an amount from the program to the applicant.

(M) The commission shall issue to an applicant that is granted an assignment a document authorizing such assignment. A copy of the authorized document shall also be provided to the primary or secondary supplier's representative. The authorizing document is effective upon issuance and represents an option on that primary or secondary supplier's program volumes for the month of issuance, regardless of the fact that delivery of the product may not be made until the following month. An authorizing document not presented to the primary or secondary supplier within ten days of issuance shall expire after that time.

(N) The primary or secondary supplier shall provide the assigned amount of the allocated product to an applicant when presented with an authorizing document. The authorizing document shall entitle the applicant to receive product from the primary or secondary supplier from which the state set-aside assignment has been made.

(O) All primary and secondary suppliers shall supply products from their program volume each month, as directed by the commission, not to exceed the total program volume for each product for that month. That portion of a primary or secondary supplier's program volume for a particular month that is not allocated by the commission during that month or that is not subject to an authorizing document issued no later than the last day of that month shall be a part of the primary or secondary supplier's total supply for the subsequent month and shall be distributed according to the allocation procedures set forth in this chapter.

(P) At any time during the month, the commission may order the release of part or all of a primary or secondary supplier's program volume through the primary or secondary supplier's normal distribution system in the state.

(Q) The chairperson of the commission shall notify the governor when, based on the information available to the chairperson, the chairperson believes that either of the following conditions exists:

(1) An energy emergency may exist with regard to the supply of heating oil, propane, or transportation fuel.

(2) An energy emergency no longer exists with regard to the supply of heating oil, propane, or transportation fuel.

(R) The commission may, upon an application or a motion filed by a party, waive any requirement of this chapter, other than a requirement mandated by statute, for good cause shown.

(S) The commission may direct the attorney general to bring an action for immediate injunction or other appropriate relief to enforce commission orders and to secure immediate compliance with this chapter.

Effective: 11/08/2012
R.C. 119.032 review dates: 08/23/2012 and 11/30/2016
Promulgated Under: 111.15
Statutory Authority: 4935.03
Rule Amplifies: 4935.03
Prior Effective Dates: 1/22/1998, 2/27/2010

4901:5-35-03 General procedures.

This rule establishes the procedures that govern application for assignment under the program.

(A) Who may apply.

A secondary supplier seeking an assignment from the program to meet an emergency requirement may apply for an assignment under the program.

(B) What to file.

Application for assignment from the program shall be by a form approved by the commission.

(C) Where to file.

All applications shall be filed with the docketing division of the commission.

(D) Notice.

The commission may notify any person that it determines may be aggrieved by the assignment, that comments regarding the application will be accepted.

(E) Contents.

The commission shall require that an applicant provide sufficient information so that it may be determined that the proposed allocation satisfies the objectives of section 4935.03 of the Revised Code. At a minimum, such information shall include, but not be limited to:

(1) The identification of any previous assignment order from the program that was issued to the applicant or to any person that controls the applicant or is controlled by the applicant.

(2) A statement that the applicant's primary supplier is unable to supply the applicant's requirements or, if the applicant does not have a primary supplier, a statement that the applicant has contacted two primary suppliers that could supply the allocated product and the identification of those suppliers.

(3) For purposes of Chapter 4901:5-29 of the Administrative Code, a description of the consumers that will be supplied and their emergency requirements.

(F) Commission evaluation.

The commission may investigate any statement in an application and utilize in its evaluation any relevant facts obtained by such investigation. The commission may solicit and accept submissions from third persons relevant to any application provided that the applicant is afforded an opportunity to respond to all third party submissions.

(1) In evaluating an application, the commission may consider any other source of information. The commission on its own initiative may convene a conference, if, in its discretion, it considers that a conference will advance its evaluation of the application.

(2) If the commission determines that there is insufficient information upon which to base a decision and if upon request the necessary additional information is not submitted, the commission may dismiss the application without prejudice. If the failure to supply additional information is repeated or willful, the commission may dismiss the application with prejudice.

(3) There shall be assignment from the program only to secondary suppliers that are located within the state and that demonstrate emergency requirements.

(G) Decision and order.

Upon consideration of the application and other relevant information received or obtained during the proceeding, the commission's legal director, deputy legal director, or attorney examiner shall issue an order denying or granting the application.

(1) The order shall include a brief written statement summarizing the factual and legal basis upon which the order was issued.

(2) The order shall provide that any person aggrieved thereby may file an appeal with the commission in accordance with paragraph (I) of this rule. The order shall state that it is effective upon issuance and shall expire within ten days of its issuance unless the applicant presents the applicant's copy of the order to the primary supplier or a designated local representative of such primary supplier within that ten-day period.

(3) The commission shall serve a copy of the order upon the applicant, the designated state representative of the primary or secondary supplier assigned to the applicant and any other person identified as one who might be aggrieved by said order.

(H) Timeliness.

(1) If the commission's legal director, deputy legal director, or attorney examiner fails to take action on an application within ten days of filing, the applicant may treat the application as having been denied in all respects and may appeal therefrom as provided in paragraph (I)(1) of this rule.

(2) Notwithstanding paragraph (H)(1) of this rule, the commission may temporarily suspend the running of the ten-day period if it finds that additional information is necessary, if it finds that the application was improperly filed, or for any reason deemed appropriate. A temporary suspension shall remain in effect until the commission serves upon the applicant notice that the additional information has been received and accepted or that the application has been properly filed, or until such time as is specified by the commission, as appropriate. Unless otherwise provided by the commission, the ten-day period shall resume running on the first day that is not a Saturday, Sunday, or legal holiday and that follows the day on which the commission serves upon the person notice as provided in this rule.

(I) Appeal.

(1) Any person aggrieved by an order issued by the commission's legal director, deputy legal director, or attorney examiner pursuant to this chapter, or by the denial of an application pursuant to paragraph (H)(1) of this rule may file an appeal to the commission.

(2) Any person wishing to take an appeal must file an application for review with the commission within five days from the issuance of the order from which the appeal is being taken. An extension of time for the filing of an appeal may be granted only under extraordinary circumstances. Any appeal filed shall set forth specifically the legal and factual grounds serving as the basis of the appeal. A memorandum in support thereof may be filed by the appealing party. The appealing party shall serve a copy of the appeal on all primary and secondary suppliers affected by the order.

(3) Any affected person may file a memorandum in support or in opposition to the appeal within three days after the filing of an appeal.

(4) The commission shall affirm, reverse, or modify the decision of the commission's legal director, deputy legal director, or attorney examiner within ten days of the filing of the appeal.

(5) Any person aggrieved by an order issued by the commission pursuant to the provisions of this chapter may file an appeal in accordance with Chapter 4903. of the Revised Code.

Effective: 11/08/2012
R.C. 119.032 review dates: 08/23/2012 and 11/30/2016
Promulgated Under: 111.15
Statutory Authority: 4935.03
Rule Amplifies: 4935.03
Prior Effective Dates: 5/19/91, 1/22/1998, 2/27/2010