Case No. RK272-03569

March 6, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Supplemental Order

Name of Applicant: Acushnet Company/Acushnet Rubber Co., Inc.

Date of Filing: May 30, 1996

Case Number: RK272-03569

This Decision and Order will consider an Application for Supplemental Refund filed in the Subpart V crude oil refund proceeding by Acushnet Rubber Co., Inc. (Acushnet Rubber).(1) The Application is based upon purchases of petroleum products made by Acushnet Company (AC) from August 1973 to January 1981, which were originally approved for refund in Case No. RF272-70979.

In the Application, a representative of Acushnet Rubber explained that Acushnet Rubber purchased the assets of AC in 1994. According to a purchase agreement submitted on February 25, 1997 by Acushnet Rubber, the assets transferred in the sale include: real property, patents, equipment, raw materials, leases, business records and accounts receivable. The capital stock of AC was not included in the sale.

We have a statutory duty to identify and provide restitution to injured persons. 15 U.S.C. § 4502 (b). We would be negligent in discharging that duty if we granted a refund to someone other than an identified injured person. Texaco/Huffy Gas, 22 DOE ¶ 85,220 at 88,586 n. 4. Therefore, the refund procedures we have established provide that the right to receive a refund generally remains with the owner of a firm during the price control period. Nevertheless, the right to receive a refund can be transferred to a subsequent owner of the firm if: (i) the firm is a corporation, the entire capital stock of which was purchased by the subsequent owner; or (ii) the firm's

assets were sold under an agreement that indicated, either explicitly or implicitly, that potential refunds were being transferred. Mrs. M.B. Troy, 23 DOE ¶ 85,049 (1993).

As the sale agreement demonstrates, Acushnet Rubber never acquired the capital stock of AC pursuant to the 1994 sales agreement. There is no mention of the right to receive future crude oil refunds in the sale agreement, nor is there any indication that the right to receive future crude oil refunds was implicitly transferred from AC to Acushnet Rubber. As such, AC did not relinquish its right to receive supplemental crude oil refund monies due to the corporation for its petroleum purchases during the refund period. Accordingly, we will deny the Application for Supplemental Refund submitted by Acushnet Rubber.

It Is Therefore Ordered That:

(1) The Application for Supplemental Refund filed by Acushnet Rubber Co., Inc., Case No. RK272-03569, is hereby denied.

(2) This is a final Order of the Department of Energy.

George B. Breznay

Director

Office of Hearings and Appeals

Date: March 6, 1997

(1) For information pertaining to the Supplemental Distribution of Subpart V Crude Oil Refund Monies, see State of Montana, et al., 25 DOE ¶ 85,059 (1995).