[Federal Register Volume 59, Number 147 (Tuesday, August 2, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-18780] [[Page Unknown]] [Federal Register: August 2, 1994] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- SUMMARY: The Office of Hearings and Appeals (OHA) of the Department of Energy announces the procedures for the disbursement of $56,149.35 (plus accrued interest) that Telum, Inc. remitted to the DOE pursuant to a Consent Order entered into by the DOE and Telum. The OHA has determined that the funds will be distributed in accordance with the DOE's special refund procedures, 10 CFR Part 205, Subpart V. DATES AND ADDRESSES: The Application for Refund must be filed in duplicate, addressed to ``Telum Special Refund Proceeding,'' and sent to: Office of Hearings and Appeals, Department of Energy, 1000 Independence Avenue, S.W., Washington, DC 20585. The application should display a prominent reference to Case Number LEF-0114 and be postmarked no later than October 31, 1994. FOR FURTHER INFORMATION CONTACT: Richard W. Dugan, Associate Director, Andrew W. Beckwith, Staff Analyst, Office of Hearings and Appeals, 1000 Independence Avenue, S.W., Washington, DC 20585, (202) 586-2860 (Dugan), (202) 586-4921 (Beckwith). SUPPLEMENTARY INFORMATION: In accordance with 10 CFR 205.282(c), notice is hereby given of the issuance of the Decision and Order set out below. The Decision and Order sets forth the procedures that the DOE has formulated to distribute monies that have been remitted by Telum, Inc. to the DOE to settle possible pricing violations with respect to its sale of middle distillates. The DOE is currently holding $56,149.35 in an interest-bearing escrow account pending distribution. The OHA has determined to distribute these funds in a refund process in which we will accept a refund claim from the party injured as a result of Telum's alleged overcharges. The specific requirements that the applicant must meet in order to receive the refund are set out in Section III of the Decision. The claimant who meets these specific requirements will be eligible to receive a refund of the entire consent order amount plus any accrued interest. In the event that a valid refund application is not filed, the funds will be used for indirect restitution in accordance with the provisions of the Petroleum Overcharge and Distribution Act of 1986, 15 U.S.C. Secs. 4501-4507. The Application for Refund must be postmarked no later than 90 days after publication of this Decision and Order in the Federal Register. Instructions for the completion of the refund application are set forth in the Decision that immediately follows this notice. The application should be sent to the address listed at the beginning of this notice. All submissions, except those containing confidential information, 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 of the Office of Hearings and Appeals, located in Room 1E-234, 1000 Independence Avenue, S.W., Washington, D.C. 20585. Dated: July 25, 1994. George B. Breznay, Director, Office of Hearings and Appeals. Decision and Order of the Department of Energy July 25, 1994. Implementation of Special Refund Procedures Name of Firm: Telum, Inc. Date of Filing: October 7, 1993 Case Number: LEF-0114 In accordance with the procedural regulations of the Department of Energy (DOE), 10 C.F.R. Part 205, Subpart V, the Economic Regulatory Administration (ERA) of the DOE filed a Petition for the Implementation of Special Refund Procedures with the Office of Hearings and Appeals (OHA) on October 7, 1993. The petition requests that OHA formulate and implement procedures for the distribution of funds received pursuant to a consent order entered into by the DOE and Telum, Inc. (Telum). I. Background Telum was a ``reseller-retailer'' of ``covered products'' as those terms were defined in 6 CFR 150.352 and 10 CFR 212.31. Therefore, Telum was required to price middle distillate fuel in accordance with the price rule of the Mandatory Petroleum Price Regulations set forth at 10 C.F.R. Part 212, Subpart F, and antecedent regulations at 6 C.F.R. Part 150, Subpart L. As a result of an audit, the ERA alleged that Telum and entities under Telum's direction violated the price regulations in sales of middle distillate fuel to Salt River Project (Salt River) during a five month period from December 1, 1973, through April 30, 1974 (the audit period).* The auditors determined that during this period Telum made sales of middle distillates to Salt River at prices in excess of the maximum lawful selling price (MLSP) permitted by the regulations. Consequently, the ERA issued a Proposed Remedial Order (PRO) to Telum on May 28, 1980, alleging pricing violations in the sale of middle distillate fuel to Salt River. After revising its selection of the ``nearest comparable outlet'' with regard to the ``new market'' determination under 10 CFR 212.111(b), the ERA issued an Amended PRO on September 15, 1986, alleging that Telum had overcharged Salt River in its sales of middle distillate fuel in the amount of $357,587. On April 7, 1988, that Amended PRO was remanded by OHA to the ERA for a new determination regarding Telum's nearest comparable outlet and a recalculation of MLSPs and any overcharges in sales to Salt River. Telum, Inc., 17 DOE 83,010 (1988). --------------------------------------------------------------------------- *Telum was incorporated as Bonus Oil Company on August 13, 1968. Bonus Oil Company's name was changed to Telum, Inc. effective December 3, 1974. For the purposes of this Decision, we will refer to the firm only as Telum. The other entities under Telum's direction, as listed in the consent order, are: Industrial Fuels, Inc., an Arizona Corporation, and Giraud Corporation, a Utah corporation. --------------------------------------------------------------------------- The ERA did not issue a second Amended PRO. Instead, on May 30, 1990, the DOE entered into a consent order (No. 820H00020Z) with Telum to resolve all administrative and civil claims related to Telum's compliance with the Federal petroleum price and allocation regulations in its resale transactions of petroleum products during the period December 1, 1973 through April 30, 1974. Specifically, Telum agreed to remit $60,000, plus interest, to the DOE for deposit in an interest-bearing escrow account. Telum has remitted $56,149.35 to the DOE, consisting of $51,626.18 toward payment of the $60,000 principal amount due and $4,523.17 toward payment of interest due on principal. The DOE has authorized a write-off of the remainder of the amount due for reasons of uncollectability. Telum is no longer in business, and Earl K. Cook, the former president of Telum, has indicated that he is unable to pay the remainder of the amount due. As of June 30, 1994, $9,615 in interest had accrued in the DOE escrow account on the amount paid by Telum. On May 31, 1994, we issued a Proposed Decision and Order in which we determined that it was appropriate to establish a special refund proceeding with respect to the Telum consent order fund. In that Proposed Decision, we tentatively set forth procedures to distribute a refund to the party that was injured by Telum's alleged pricing violations in sales of middle distillates during the consent order period. Specifically, we proposed that Salt River, the party injured by Telum's alleged pricing violations, be eligible for the entire consent order fund plus accrued interest. The Proposed Decision was published in the Federal Register on June 6, 1994 (59 Fed. Reg. 29289), and comments on the proposed refund mechanism were to be submitted within 30 days of that date. No comments regarding the Proposed Decision and Order were received. Accordingly, we have determined that the proposed procedures should be adopted. The purpose of this Decision and Order is to establish procedures to be used for filing and processing Salt River's claim to a refund in this matter. This Decision sets forth the information that Salt River should submit in order to receive the entire Telum consent order fund. I. Jurisdiction The procedural regulations of the DOE set forth general guidelines by which the Office of Hearings and Appeals may formulate and implement a plan of distribution for funds received as a result of an enforcement proceeding. 10 C.F.R. Part 205, Subpart V. It is the DOE policy to use the Subpart V process to distribute such funds. For a more detailed discussion of Subpart V and the authority of the Office of Hearings and Appeals to fashion procedures to distribute refunds obtained as part of consent orders, see Office of Enforcement, 9 DOE 82,553 (1982); Office of Enforcement, 9 DOE 82,508 (1981); Office of Enforcement, 8 DOE 82,597 (1981). As we stated in the Proposed Decision, we have determined that a Subpart V proceeding is an appropriate method for distributing the Telum consent order fund. Therefore, we will grant the ERA's petition and assume jurisdiction over distribution of the fund. III. Refund Procedures A. Refund Claimant In the Proposed Decision, we determined that insofar as possible the consent order fund should be distributed to the customer of Telum who was injured by the alleged overcharges. Salt River, the only Telum customer who made purchases during the consent order period that were covered by the PRO and Amended PRO, is the only Telum customer we identified as likely to have been injured by the alleged overcharges. Although the Telum consent order covers all sales of ``covered products'' by Telum for the period December 1, 1973 through April 30, 1974, the ERA audit files, the PRO, and the Amended PRO are all based only on sales by Telum to Salt River. The consent order, while lacking in specificity, was clearly arrived at in order to settle this one outstanding enforcement issue. We are thus able to use the information contained in the audit files for guidance as to the identity of Telum's injured customer and the extent of the alleged overcharges, as we have done in some prior refund proceedings. See, e.g., Howard Oil Co., 15 DOE 85,072 (1986). Consequently, we are establishing a claims procedure in which Salt River may apply for a refund equal to the entire consent order fund. Limiting the universe of applicants to Salt River allows us to fashion a refund plan that will correspond most closely to the alleged overcharges settled by the consent order. See Consumers Oil Co., 13 DOE 85,226 (1985); Marion Corp., 12 DOE 85,014 (1984). In prior refund proceedings, in order to receive a full refund, claimants whose prices for goods and services are regulated by a governmental body, e.g., a public utility, have not been required to provide a detailed showing of injury. See, e.g., Dorchester Gas Corp., 14 DOE 85,240 at 88,451 (1986). Instead, regulated firms have been required to (i) Certify that they will pass any refund received through to their customers, (ii) provide us with a full explanation of how they plan to accomplish the restitution, and (iii) certify that they will notify the appropriate regulatory body of the receipt of the refund. Id. These requirements are based on the presumption that, with respect to a regulated firm, any overcharges would have been routinely passed through to its customers. Similarly, any refunds received should be passed through to its customers. We have been informed by Salt River that the nature of its business is that of a municipal public power utility whose rates for electricity are set by a publicly-elected Board of Directors (i.e., a governmental body). See Memorandum of April 29, 1994 Telephone Conversation between John Egan, Spokesperson for Salt River, and Andrew Beckwith, OHA Staff Analyst. We have determined, therefore, that Salt River is a regulated firm as that category is defined above. See City of Lubbock, 18 DOE 85,116 (1988). Accordingly, we have determined that Salt River, as a regulated firm, need not make a showing that it was injured by the alleged overcharges. However, Salt River will be required to comply with the stipulations outlined above that are incumbent upon regulated firms when submitting an Application for Refund. B. Calculation of Refund Amount As stated above, the ERA audit files identify Salt River as the Telum customer injured by the alleged overcharges that were the subject of the consent order. In the Proposed Decision, we indicated our intention to find Salt River eligible for the entire amount of the consent order fund as restitution for the alleged overcharges. We received no comments in opposition to this proposal and therefore shall adopt it. In addition, Salt River will be eligible to receive all of the interest that has accrued on the consent order fund. C. Application for Refund Procedures An Application for Refund may now be filed by Salt River. Salt River's Application must be postmarked within 90 days after publication of this Decision and Order in the Federal Register. See 10 C.F.R. Sec. 205.286. The application must be in writing, signed by an authorized representative of Salt River, and specify that it pertains to the Telum, Inc. consent order fund, Case No. LEF-0114. Salt River's Application for Refund must be filed in duplicate. A copy of the application will be available for public inspection in the Public Reference Room of the Office of Hearings and Appeals, Room 1E-234, 1000 Independence Avenue, S.W., Washington, DC. If Salt River believes that its application contains confidential information, it must so indicate on the first page of its application and submit two additional copies of its application from which the information that it claims is confidential has been deleted, together with a statement specifying why any such information is privileged or confidential. The application must also indicate whether the applicant or any person acting on its instructions has filed or intends to file any other application or claim of whatever nature regarding the matters at issue in the underlying Telum enforcement proceeding. Salt River must also certify that it is not related to Telum, the consent order firm. The application must include the following statement: ``I swear (or affirm) that the information submitted is true and accurate to the best of my knowledge and belief.'' See 10 CFR 205.283(c); 18 USC 1001. Furthermore, Salt River should furnish us with the name, title, and telephone number of a person who may be contacted by the OHA for additional information concerning the application. In addition, Salt River's employer identification number and current address must be listed in the application. The application should be sent to: Telum, Inc. Consent Order Refund Proceeding, Office of Hearings and Appeals, U.S. Department of Energy, Washington, DC 20585. As indicated above, Salt River should also: (i) Certify that it will pass any refund received through to its customers, (ii) provide us with a full explanation of how it plans to accomplish the restitution, and (iii) certify that it will notify the appropriate regulatory body of the receipt of the refund. In the event that Salt River does not file a refund application that meets the requirements set forth in this Decision and Order, the funds in the Telum consent order account shall be distributed in accordance with the provisions of the Petroleum Overcharge Distribution and Restitution Act of 1986 (PODRA), 15 U.S.C. 4501-07. 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 these responsibilities to the OHA, and any refined product pool funds in the Telum consent order escrow account that the OHA determines will not be used to effect direct restitution to Salt River will be distributed in accordance with the provisions of PODRA. It Is Therefore Ordered That: (1) An Application for Refund from the funds remitted to the Department of Energy by Telum, Inc. pursuant to the consent order executed on May 30, 1990, may now be filed. (2) The application must be postmarked no later than 90 days after publication of this Decision and Order in the Federal Register. Dated: July 25, 1994. George B. Breznay, Director, Office of Hearings and Appeals. [FR Doc. 94-18780 Filed 8-1-94; 8:45 am] BILLING CODE 6450-01-P