[Federal Register Volume 59, Number 28 (Thursday, February 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3097]
[[Page Unknown]]
[Federal Register: February 10, 1994]
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DEPARTMENT OF ENERGY
Office of Hearings and Appeals
Proposed Implementation of Special Refund Procedures
AGENCY: Office of Hearings and Appeals, DOE.
ACTION: Notice of Proposed Implementation of Special Refund Procedures.
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SUMMARY: The Office of Hearings and Appeals (OHA) of the Department of
Energy (DOE) announces the proposed procedures for disbursement of a
total of $83,847.58, plus accrued interest, in refined petroleum
overcharges obtained by the DOE under the terms of a Remedial Order
issued to Alameda Chevron, et al., Case Nos. LEF-0093, et al. The OHA
has tentatively determined that the funds will be distributed in
accordance with the provisions of 10 C.F.R. Part 205, Subpart V and 15
U.S.C. 4501, the Petroleum Overcharge Distribution and Restitution Act
(PODRA).
DATE AND ADDRESS: Comments must be filed in duplicate on or before
March 14, 1994 and should be addressed to the Office of Hearings and
Appeals, Department of Energy, 1000 Independence Avenue, SW.,
Washington, DC 20585. All comments should display a reference to Case
Number LEF-0093, et al.
FOR FURTHER INFORMATION CONTACT: Kim L. Hargrove, Staff Attorney,
Office of Hearings and Appeals, 1000 Independence Avenue, SW.,
Washington, DC 20585, (202) 586-2400.
SUPPLEMENTARY INFORMATION: In accordance with 10 CFR 205.282(b), notice
is hereby given of the issuance of the Proposed Decision and Order set
out below. The Proposed Decision sets forth the procedures that the DOE
has tentatively formulated to distribute to eligible claimants
$83,847.58, plus accrued interest, obtained by the DOE under the terms
of a Remedial Order that the DOE issued to Alameda Chevron, et al., on
October 22, 1980. Under the Remedial Order, Alameda Chevron and 15
other firms were found to have violated the Federal petroleum price and
allocation regulations involving the sale of motor gasoline during the
relevant audit periods.
The OHA has proposed to distribute the Remedial Order funds is a
two stage refund proceeding. Purchasers of motor gasoline from any one
of the Remedial Order firms named in the Appendix following the
Proposed Decision and Order will have an opportunity to submit refund
applications in the first stage. Refunds will be granted to applicants
who satisfactorily demonstrate they were injured by the pricing
violations and who document the volume of motor gasoline they purchased
from one or more of the Remedial Order firms during the relevant audit
period. In the event that money remains after all first stage claims
have been disposed of, the remaining funds will be disbursed in
accordance with the provisions of 15 U.S.C. 4501, the Petroleum
Overcharge Distribution and Restitution Act of 1986 (PODRA).
Any member of the public may submit written comments regarding the
proposed refund procedures. Commenting parties are requested to forward
two copies of their submissions, within 30 days of publication of this
notice in the Federal Register, to the address set forth at the
beginning of this notice. Comments so received, will be made available
for public inspection between the hours of 1 p.m. and 5 p.m., Monday
through Friday, except Federal holidays, in the Public Reference Room
1E-234, 1000 Independence Avenue, SW., Washington, DC 20585.
Dated: February 3, 1994.
George B. Breznay,
Director, Office of Hearings and Appeals.
Proposed Decision and Order of the Department of Energy
Proposed Implementation of Special Refund Procedures
February 3, 1994.
Names of Firms: Alameda Chevron, et al.
Date of Filing: July 20, 1993.
Case Numbers: LEF-0093, et al.
On July 20, 1993, the Economic Regulatory Administration (ERA) of
the Department of Energy (DOE) filed a Petition requesting that the
Office of Hearings and Appeals (OHA) formulate and implement Subpart V
special refund proceedings. Under the procedural regulations of the
DOE, special refund proceedings may be implemented to refund monies to
persons injured by violations of the DOE petroleum price regulations,
provided DOE is unable to readily identify such persons or to ascertain
the amount of any refund. 10 CFR 205.280. We have considered the ERA's
request to formulate refund procedures for the disbursement of monies
remitted by Alameda Chevron and 15 other firms pursuant to a Remedial
Order (hereafter, the Order) issued by OHA on October 22, 1980, to
those firms and have determined that such procedures are appropriate.
Each firm's name, case number and amount of money remitted to remedy
its pricing violations has been set out in the Appendix immediately
following this Decision.
Under the terms of the Order, a total of $83,847.58 has been
remitted to the DOE to remedy pricing violations which occurred during
the relevant audit periods. These funds are being held in an escrow
account established with the United States Treasury pending a
determination of their proper distribution. See Memorandum from George
B. Breznay, Director OHA, to James T. Campbell, Comptroller,
``Transferring Funds to Escrow Account,'' August 20, 1993. This
Decision sets forth OHA's tentative plan to distribute those funds. The
specific application requirements appear in Section III of this
Decision. Because these procedures are set forth in proposed form,
refund applications should not be filed at this time. Comments are
solicited.
I. Jurisdiction and Authority
The general guidelines that govern OHA's ability to formulate and
implement a plan to distribute refunds are set forth at 10 CFR part
205, Subpart V. These procedures apply in situations where the DOE
cannot readily identify the persons who were injured as a result of
actual or alleged violations of the regulations or ascertain the amount
of the refund each person should receive. For a more detailed
discussion of Subpart V and the authority of the OHA to fashion
procedures to distribute refunds, see Office of Enforcement, 8 DOE
82,508 (1981) and Office of Enforcement, 8 DOE 82,597 (1981).
II. Background
The facts alleged in the Remedial Order were undisputed. Each
Remedial Order firm was a ``retailer'' of motor gasoline as that term
has been defined at 10 CFR 212.31 and was therefore subject to the
provisions of 10 CFR part 210 and 10 CFR part 212, Subpart F. The Order
states that during the relevant audit period, they each charged prices
higher than those permitted by 10 CFR 212.93(a)(2); levied a cents-per-
gallon fee for services associated with the sale of motor gasoline in
violation of 10 CFR 210.62(d)(1) and refused to make their records
available for inspection in violation of 10 CFR 210.92(b).
The firms were ordered to reduce their prices for motor gasoline by
specified amounts until a sufficient volume of gasoline had been sold
at the reduced prices to remedy the violations.\1\ After decontrol, the
Order was modified to require direct monetary restitution to the
Treasury instead. See Sunset Boulevard Car Wash, 20 FERC 62,319 at
63,537 (1982). The firms objected. The Order has since been affirmed by
the Federal Energy Regulatory Commission (FERC) in a Decision issued on
August 13, 1982. Id.
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\1\The Order imposed no sanctions upon the firms for failing to
provide records pursuant to 10 CFR 210.92(b). See Remedial Order at
1 and 7.
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III. The Proposed Motor Gasoline Refund Procedures
This section sets forth the considerations that will be used to
evaluate applications for refund payable from the monies remitted by
each firm. We propose to implement a two stage refund proceeding.
Purchasers of motor gasoline from any of these gasoline retailers will
have an opportunity to submit refund applications in the first stage.
In the event that money remains after all first stage claims have been
disposed of, the remaining funds will be disbursed in accordance with
the provisions of the Petroleum Overcharge Distribution and Restitution
Act of 1986 (15 U.S.C. 4501) (PODRA).
Refund applications submitted in this special refund proceeding
will be evaluated in exactly the same manner as applications submitted
in other refined product proceedings. Refunds will be granted to
applicants who satisfactorily demonstrate they were injured by the
pricing violations and who document the volume of motor gasoline they
purchased from one or more of these retailers during the relevant audit
period. In order to permit applicants to participate in the refund
proceeding without incurring inordinate expense and to facilitate OHA's
consideration of refund applications, we plan to adopt certain
presumptions regarding pricing violations and injury. 10 CFR
205.282(e).
With regard to the pricing violations, we propose to adopt a
rebuttable presumption that such violations were dispersed equally
throughout each of these retailer's sales of motor gasoline during the
audit period and that refunds should therefore be made on a pro rata or
volumetric basis. Under this volumetric refund approach, an applicant
will be eligible to receive a refund that is equal to the gallons of
gasoline purchased multiplied by the per gallon refund amount, plus
accrued interest.
We are proposing that a separate per gallon refund amount
(volumetric) be set for each retailer. The volumetric was obtained by
dividing the remedial order funds each retailer remitted by the gallons
of motor gasoline we believe it sold during the relevant audit
period.\2\ Applicants believing they were disproportionately
overcharged will have an opportunity to rebut this presumption and
those who succeed in doing so, will be eligible to receive refunds
calculated at a higher volumetric.
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\2\In the absence of accurate figures indicating the amount of
motor gasoline sold by each firm during the audit period, we have
estimated the volume of their sales using the best available data.
Our estimate is that each gasoline retailer sold 50,000 gallons of
motor gasoline per month for each month of its audit period. This
figure was used to calculate each retailer's volumetric. Should
interest in claims submitted pursuant to this Order indicate that
our sales volume estimate was inaccurate, it may be necessary to
reestimate the volumetric.
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The potential applicants are likely to fall into just two
categories since each of the Remedial Order firms was retailer. We will
provide a presumption of injury for end-users of petroleum products
whose businesses were unrelated to the petroleum industry and were
therefore not subject to the regulations promulgated under the
Emergency Petroleum Allocation Act of 1973 (EPAA), 15 U.S.C. Secs. 751-
760h. In order to receive a refund, such applicants will only be
required to document the volume of motor gasoline they purchased from
one or more of these retailers during that retailer's audit period. See
Shell Oil Company, 17 DOE 85,204 (1988). The second category of
applicant consists of both retailer and reseller applicants who will be
required to submit detailed evidence of injury. These applicants must
show that the overcharges were absorbed, not passed through to their
customers. They therefore will be unable to rely upon injury
presumptions utilized in many refined product refund cases. Id.
Only claims for at least $15 in principal will be processed. This
minimum has been adopted in refined product refund proceedings because
the cost of processing claims for refunds of less than $15 outweighs
the benefits of restitution in those instances. See Mobil Oil Corp., 13
DOE 85,339 (1985).
The deadline for filing an Application for Refund is June 1, 1995.
It Is Therefore Ordered That:
The refund amount remitted to the Department of Energy by Alameda
Chevron and the 15 firms listed in the Appendix, pursuant to the
Remedial Order finalized on October 22, 1980, be distributed in
accordance with the foregoing Decision.
Appendix
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Case No. Case name $ Amount Audit period Volumetric
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LEF-0093...................... Alameda Chevron.................... $2,270.92 8/1/79-10/30/79 .0151
LEF-0094...................... Ben's Exxon Service................ 3,056.42 8/1/79-1/30/80 .0102
LEF-0095...................... Berryessa Chevron.................. 2,933.32 8/1/79-10/30/79 .0196
LEF-0096...................... Bill Wren's Shell.................. 4,366.42 8/1/79-1/11/80 .0163
LEF-0097...................... Cutting Shell Service.............. 4,815.87 8/1/79-1/30/80 .0161
LEF-0098...................... Ed Gularte Chevron................. 6,235.74 8/1/79-1/30/80 .0208
LEF-0099...................... Joe Berube Services................ 8,294.00 8/1/79-12/13/79 .0375
LEF-0100...................... McDowell Exxon..................... 6,998.37 8/1/79-10/20/79 .0529
LEF-0101...................... Petaluma Standard Service.......... 3,987.27 8/1/79-1/30/80 .0133
LEF-0102...................... Regalia's Chevron Service.......... 8,887.87 8/1/79-1/11/80 .0332
LEF-0103...................... Starr Union Service................ 6,773.51 8/1/79-11/20/79 .0372
LEF-0104...................... Tenth Street Chevron............... 7,097.98 8/1/79-1/30/80 .0237
LEF-0105...................... Tom's Coffee Tree Chevron.......... 4,500.00 8/1/79-11/20/79 .0247
LEF-0106...................... Wallace Arco Service............... 2,067.09 8/1/79-1/11/80 .0069
LEF-0107...................... Walt's Shell Service............... 3,562.80 8/1/79-11/14/79 .0206
LEF-0108...................... Weber's Chevron Service............ 8,000.00 8/1/79-11/14/79 .0464
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$83,847.58
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[FR Doc. 94-3097 Filed 2-9-94; 8:45 am]
BILLING CODE 6450-01-M
