[Federal Register Volume 60, Number 105 (Thursday, June 1, 1995)]
[Notices]
[Pages 28603-28605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13305]
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DEPARTMENT OF ENERGY
Office of Hearings and Appeals
Implementation of Special Refund Procedures
AGENCY: Office of Hearings and Appeals, Department of Energy.
ACTION: Notice of 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 procedures for disbursement of $866,352.24,
plus accrued interest, in refined petroleum product violation amounts
obtained by the DOE pursuant to Consent Orders issued to Bell Fuels,
Inc., et al., Case Nos. LEF-0061, et al. In the absence of sufficient
information to implement direct restitution to injured customers of the
consenting firms, the OHA has determined that if no such customers come
forward, the funds obtained from these firms, plus accrued interest,
will be made available to state governments for use in four energy
conservation programs.
DATE AND ADDRESS: Applications for Refund from customers of the
consenting firms must be filed in duplicate and sent to:
Office of Hearings and Appeals, Department of Energy, 1000 Independence
Ave., SW., Washington, DC 20585.
Applications should display a prominent reference to the name of
the consenting firm in question and the appropriate case number.
Applications should be postmarked by September 29, 1995.
FOR FURTHER INFORMATION CONTACT: Thomas O. Mann, Deputy Director, Roger
Klurfeld, Assistant Director, Office of Hearings and Appeals, 1000
Independence Avenue, SW., Washington, DC 20585, (202) 586-2094 (Mann);
586-2383 (Klurfeld).
SUPPLEMENTARY INFORMATION:
In accordance with 10 CFR 205.282(b), notice is hereby given of the
issuance of the Decision and Order set out below. This Decision and
Order sets forth the procedures that the DOE has formulated to
distribute $866,352.24, plus accrued interest, obtained by the DOE
pursuant to Consent Orders issued to eighteen resellers and retailers
of refined petroleum products. The Consent Orders settled DOE
allegations that, during periods between 1973 and 1981, the firms had
sold certain refined petroleum products at prices in excess of the
maximum lawful selling price, in violation of Federal petroleum price
regulations. The names of the firms, their case numbers, the dates of
the settlement periods, the products covered by each Consent Order, and
the amounts received from each firm are set forth in the Appendix to
the Decision.
Since it lacks sufficient information to implement a standard
first-stage refund process, the OHA has determined that it will accept
refund claims from any injured customers of the consenting firms who
come forward and will devise refund procedures based on the information
these applicants provide. If no applicants come forward, all of the
funds obtained from the firms will be made available for indirect
restitution in accordance with the provisions of the Petroleum
Overcharge Distribution and Restitution Act of 1986 (PODRA), 15 U.S.C.
4501-07. The funds will be distributed to state governments for use in
four energy conservation programs.
Applications for Refund must be postmarked by September 29, 1995.
Instructions for the completion of refund applications are set forth in
the Decision that immediately follows this notice. Applications should
be sent to the address listed at the beginning of this notice.
Unless labeled as ``confidential,'' all submissions must 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 of the Office of Hearings and Appeals, located in Room 1E-234,
1000 Independence Avenue, SW., Washington, DC 20585.
Dated: May 19, 1995.
George B. Breznay,
Director, Office of Hearings and Appeals.
Decision and Order of the Department of Energy; Implementation of
Special Refund Procedures
May 19, 1995.
Names of Firms: Bell Fuels, Inc., et al.
Dates of Filing: July 20, 1993, November 16, 1993.
Case Numbers: LEF-0061, et al.
On July 20 and November 16, 1993, the Economic Regulatory
Administration (ERA) of the Department of Energy (DOE) filed
Petitions for the Implementation of Special Refund Procedures with
the Office of Hearings and Appeals (OHA), to distribute the funds
received pursuant to Consent Orders entered into by the DOE and the
eighteen petroleum resellers and retailers listed in the Appendix to
this Decision and Order (hereinafter collectively referred to as the
consenting firms). In accordance with the provisions of the
procedural regulations at 10 C.F.R. Part 205, Subpart V (Subpart V),
the ERA requests in its Petitions that the OHA establish special
procedures to make refunds in order to remedy the effects of
regulatory violations set forth in the Consent Orders.
I. Background
Each of the consenting firms was a reseller or retailer of
refined petroleum products during the periods relevant to this
proceeding. ERA audits of the consenting firms revealed possible
violations of the Mandatory Petroleum Price Regulations.
Subsequently, each of these firms entered into a separate Consent
Order with the DOE in order to settle its disputes with the DOE
concerning certain sales of refined petroleum products. Pursuant to
these Consent Orders, the firms agreed to pay to the DOE specified
amounts in settlement of their potential liability with respect to
sales to their customers during the settlement periods. The firms'
payments are currently being held in separate interest-bearing
accounts pending [[Page 28604]] distribution by the DOE. The names
of the firms, their addresses, the dates of the settlement periods
and of the Consent Orders, the amount received from each firm, and
the products covered by each Consent Order are set forth in the
Appendix to this Decision.
II. Jurisdiction and Authority
The Subpart V regulations set forth general guidelines which may
be used by the OHA in formulating and implementing a plan of
distribution of funds received as a result of an enforcement
proceeding. The DOE policy is to use the Subpart V process to
distribute such funds. For a more detailed discussion of Subpart V
and the authority of the OHA to fashion procedures to distribute
refunds, see Petroleum Overcharge Distribution and Restitution Act
of 1986, 15 U.S.C. Secs. 4501 et seq. (PODRA), Office of
Enforcement, 9 DOE para. 82,508 (1981), and Office of Enforcement, 8
DOE para. 82,597 (1981) (Vickers).
III. Refund Procedures
On April 3, 1995, the OHA issued a Proposed Decision and Order
(PD&O) establishing tentative procedures to distribute the Consent
Order funds. That PD&O was published in the Federal Register, and a
30-day period was provided for the submission of comments regarding
our proposed refund plan. See 60 Fed. Reg. 18809 (April 13, 1995).
More than 30 days have elapsed and the OHA has received no comments
concerning these proposed refund procedures. Consequently, the
procedures will be adopted as proposed.
In cases where the ERA is unable to identify parties injured by
the alleged overcharges or the specific amounts to which they may be
entitled, we normally implement a two-stage refund procedure. In the
first stage of such a proceeding, those who bought refined petroleum
products from the consenting firms may apply for refunds, which are
calculated on a pro-rata or volumetric basis. In order to calculate
the volumetric refund amount, the OHA divides the amount of money
available for direct restitution by the number of gallons sold by
the firm during the period covered by the consent order. In the
second stage, any funds remaining after all first-stage claims are
decided are distributed in accordance with PODRA.
In the cases covered by this Decision, however, we lack much of
the information that we normally use to provide direct restitution
to injured customers of the consenting firms. In particular, we have
been unable to obtain any information on the volumes of the relevant
petroleum products sold by the consenting firms during the
settlement period. Nor do we have any information concerning the
customers of these firms. Based on the present state of the record
in these cases, it would be difficult to implement a volumetric
refund process. Nevertheless, we will accept any refund claims
submitted by persons who purchased the products specified in the
Appendix from the consenting firms during the periods shown in the
Appendix. We will work with those claimants to develop additional
information that would enable us to determine who should receive
refunds and in what amounts.
To apply for a refund from any of the Consent Order funds, a
claimant should submit an Application for Refund containing the
following information:
(1) Identifying information including the claimant's name,
current business address, business address during the refund period,
taxpayer identification number, a statement indicating whether the
claimant is an individual, corporation, partnership, sole
proprietorship, or other business entity, the name, title, and
telephone number of a person to contact for additional information,
and the name and address of the person who should receive any refund
check.1
\1\ Under the Privacy Act of 1974, the submission of a social
security number by an individual applicant is voluntary. An
applicant that does not submit a social security number must submit
an employer identification number if one exists. This information
will be used in processing refund applications, and is requested
pursuant to our authority under the Petroleum Overcharge
Distribution and Restitution Act of 1986 and the regulations
codified at 10 C.F.R. Part 205, Subpart V. The information may be
shared with other Federal agencies for statistical, auditing or
archiving purposes, and with law enforcement agencies when they are
investigating a potential violation of civil or criminal law. Unless
an applicant claims confidentiality, this information will be
available to the public in the Public Reference Room of the Office
of Hearings and Appeals.
(2) A monthly purchase schedule covering the relevant settlement
period. The applicant should specify the source of this gallonage
information. In calculating its purchase volumes, an applicant
should use actual records from the refund period, if available. If
these records are not available, the applicant may submit estimates
of its gasoline purchases, but the estimation method must be
reasonable and must be explained;
(3) A statement whether the applicant or a related firm has
filed, or has authorized any individual to file on its behalf, any
other application in that refund proceeding. If so, an explanation
of the circumstances of the other filing or authorization should be
submitted;
(4) If the applicant is or was in any way affiliated with the
consenting firm, it should explain this affiliation, including the
time period in which it was affiliated; 2
\2\ As in other refund proceedings involving alleged refined
product violations, the DOE will presume that affiliates of a
consenting firm were not injured by the firm's overcharges. See,
e.g., Marathon Petroleum Co./EMRO Propane Co., 15 DOE para. 85,288
(1987). This is because the consenting firm presumably would not
have sold petroleum products to an affiliate if such a sale would
have placed the purchaser at a competitive disadvantage. See
Marathon Petroleum Co./Pilot Oil Corp., 16 DOE para. 85,611 (1987),
amended claim denied, 17 DOE para. 85,291 (1988), reconsideration
denied, 20 DOE para. 85,236 (1990). Furthermore, if an affiliate of
the consenting firm were granted a refund, the consenting firm would
be indirectly compensated from a Consent Order fund remitted to
settle its own alleged violations.
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(5) The statement listed below signed by the individual
applicant or a responsible official of the firm filing the refund
application:
I swear (or affirm) that the information contained in this
application and its attachments is true to the best of my knowledge
and belief. I understand that anyone who is convicted of providing
false information to the federal government may be subject to a
fine, a jail sentence, or both, pursuant to 18 U.S.C. Sec. 1001. I
understand that the information contained in this application is
subject to public disclosure. I have enclosed a duplicate of this
entire application which will be placed in the OHA Public Reference
Room.
All applications should be either typed or printed and clearly
labeled with the name and case number of the relevant consenting
firm. Each applicant must submit an original and one copy of the
application. If the applicant believes that any of the information
in its application is confidential and does not wish for that
information to be publicly disclosed, it must submit an original
application, clearly designated ``confidential,'' containing the
confidential information, and two copies of the application with the
confidential information deleted. All refund applications should be
postmarked on or before September 29, 1995, and sent to: Office of
Hearings and Appeals, Department of Energy, 1000 Independence Ave.,
S.W., Washington, D.C. 20585.
We will adopt the standard OHA procedures relating to refund
applications filed on behalf of applicants by ``representatives,''
including refund filing services, consulting firms, accountants, and
attorneys. See, e.g., Starks Shell Service, 23 DOE para. 85,017
(1993); Texaco Inc., 20 DOE para. 85,147 (1990); Shell Oil Co., 18
DOE para. 85,492 (1989). We will also require strict compliance with
the filing requirements as specified in 10 C.F.R. Sec. 205.283,
particularly the requirement that applications and the accompanying
certification statement be signed by the applicant.
The OHA reiterates its policy to scrutinize applications filed
by filing services closely. Applications submitted by a filing
service should contain all of the information indicated above.
Finally, the OHA reserves the authority to require additional
information before granting any refund in these proceedings.
If no claims are received, we will distribute all of the funds
received from the consenting firms in accordance with the provisions
of PODRA. See Green Oil Company, 20 DOE para. 85,450 (1990). PODRA
requires that the Secretary of Energy determine annually the amount
of oil overcharge funds that will not be required to refund monies
to injured parties in Subpart V proceedings and make those funds
available to state governments for use in four energy conservation
programs. The Secretary has delegated those responsibilities to the
OHA, and any funds that the OHA determines will not be needed to
effect direct restitution to injured customers will be distributed
in accordance with the provisions of PODRA.
It Is Therefore Ordered That:
(1) Applications for Refund from the funds remitted to the
Department of Energy by the firms listed in the Appendix to this
Decision and Order pursuant to the Consent Orders whose dates are
set forth in the Appendix may now be filed. [[Page 28605]]
(2) Applications for Refund must be postmarked no later than
September 29, 1995.
George B. Breznay,
Director, Office of Hearings and Appeals.
Date: May 19, 1995.
Appendix
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Date of
Case No. Firm Address Settlement period consent Amount Product
order received
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LEF-0061 Bell Fuels, Inc............ 4116 W. Peterson Ave., 1/1/79-11/30/79 8/31/82 $33,973.12 Gasoline.
Chicago, IL 60646.
LEF-0062 Este Oil Co................ 5556 Vine St., Cincinnati, 11/1/73-1/28/81 5/13/83 63,033.90 Refined petroleum
OH 45217. products.
LEF-0063 G&G Oil Co. of Indiana, 220 E. Centennial Ave., 4/1/79-12/31/79 2/1/83 49,097.11 Do.
Inc.. Muncie, IN 47305.
LEF-0064 General Petroleum Products, P.O. Box 209, Gary, IN 11/1/73-4/30/74 7/13/83 23,060.52 Do.
Inc.. 46402.
LEF-0065 Reco Petroleum, Inc........ 100 N. 4th St., Reading, 3/1/79-1/30/81 2/8/83 26,472.40 Gasoline.
PA 19601.
LEF-0066 SOS Monarch Oil Corp....... East Village Rd., Tuxedo, 4/1/79-9/30/79 10/25/82 5,901.03 Do.
NY 10987.
LEF-0067 Capitol 66 Oil Co.......... P.O. Box 2839, Jackson, MS 11/1/73-3/31/74 9/15/82 15,766.43 Refined petroleum
39207. products.
LEF-0068 Cumberland Farms Dairy, 777 Dedham St., Canton, MA 1/1/73-1/28/81 4/17/83 183,193.74 Gasoline.
Inc.. 02021.
LEF-0069 Kickapoo Oil Co............ 215 E. Madison, Hillsboro, 3/1/79-8/31/79 9/24/82 40,812.58 Propane.
WI 54634.
LEF-0070 Lampton-Love, Inc.......... P.O. Drawer 1607, Jackson, 11/73-4/74 9/30/82 12,983.93 Gasoline.
MS 39205.
LEF-0071 Skinny's Inc............... 5189 Texas Ave., Abilene, 3/1/79-3/31/80 9/2/82 16,000.00 Do.
TX 79608.
LEF-0072 Vermont Morgan Corp........ 114 Broadway, Saratoga, NY 4/1/79-6/30/79 4/5/83 20,275.00 Do.
12866.
LEF-0075 Bob's Broadway Shell....... 220 W. 17th St., Santa 8/1/79-5/7/80 10/8/81 2,100.00 Do.
Ana, CA 92708.
LEF-0076 Clearview Gulf............. 3120 Clearview Parkway, 4/1/79-7/15/79 8/14/81 594.84 Do.
Metairie, LA 70002.
LEF-0077 E-Z Serve, Inc............. P.O. Box 3579, Abilene, TX 8/19/73-1/27/81 12/27/82 368,550.56 Do.
79604.
LEF-0079 Millbrae Shell............. 825 Spruance Ln., Foster 8/1/79-11/30/79 3/5/82 2,500.00 Do.
City, CA 94404.
LEF-0080 Bob Hutchinson, Inc........ 1334 Breckenridge St., San 8/1/79-11/30/79 3/5/82 1,762.07 Do.
Leandro, CA 94579.
LEF-0116 Maxwell Oil Co., Inc....... P.O. Box 1936, Olympia, WA 5/1/79-12/1/79 9/1/81 275.01 Do.
98507.
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[FR Doc. 95-13305 Filed 5-26-95; 8:45 am]
BILLING CODE 6450-01-P
