[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.<SUP>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; <SUP>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