Case No. RG272-387

January 23, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Application for Refund

Motion for Reconsideration

Names of Petitioners: E.D. Fee Transfer, Inc.

Dates of Filings: June 27, 1995

October 9, 1996

Case Nos.: RG272-387

RR272-261

This Decision and Order will consider an Application for Refund (Case No. RG272-387) filed by E.D. Fee Transfer, Inc. (E.D. Fee) in the crude oil refund proceeding. This Decision will also consider a Motion for Reconsideration (RR272-261) of a dismissal letter that was issued by the Office of Hearings and Appeals (OHA) of the Department of Energy. In that letter, the OHA dismissed an Application for Refund filed in the crude oil refund proceeding by Wilson, Keller & Associates (WKA) on behalf of E.D. Fee because it was a duplicate of the application that was filed by the firm in Case No. RG272-387.

I. BACKGROUND

In order to receive a refund for crude oil overcharges, an applicant that was an end-user (i.e., consumer) of refined petroleum products must document its purchase volumes. City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987). Each applicant's refund share is calculated using the current refund amount of $0.0016 per gallon.

On May 2, 1994, WKA filed an Application for Refund on behalf of E.D. Fee. That application, which was assigned Case Number RF272- 95260, included an estimated purchase volume of 1,037,812 gallons of petroleum products based on data included in company reports filed by E.D. Fee with the Interstate Commerce Commission (ICC). On June 27, 1995, another application was filed on behalf of E.D. Fee by Ronald Cast, the manager of the corporation. That

application claimed purchases of 775,449 gallons of petroleum products and was assigned Case Number RG272-387. This claim was based on total dollar figures for motor gasoline and diesel fuel taken from E.D. Fees's general ledger divided by estimated fuel prices. On September 10, 1996, Toni Brown of this Office contacted Mr. Darrell Johnston, Vice President of E.D. Fee, and informed him that duplicate claims had been filed on behalf of E.D. Fee, and only one application could be processed. In that conversation, Mr. Johnston informed Ms. Brown that the Application filed by WKA should be dismissed, and the application filed by the firm should be processed. See Memorandum of September 10, 1996 telephone conversation. Therefore, in accordance with Mr. Johnston's request, on September 11, 1996, the Application filed by WKA, Case No. RF272-95260 was dismissed.

On October 9, 1996, WKA filed a Motion for Reconsideration requesting that the Application for Refund filed by their firm on behalf of E.D. Fee, Case No. RF272-95260, be processed and granted, and that Case No. RG272-387 be dismissed because it was the later application filed. WKA also stated that the application it had filed had a documented gallonage claim, and that the claim filed by Mr. Cast had not documented the firm's purchases.

II. ANALYSIS OF MOTION

DOE regulations do not explicitly provide for reconsideration of a final Decision and Order in a refund proceeding. See 10 C.F.R. Part 205, Subpart V. However, in prior cases, we have used our discretion to consider the factual and procedural merits of Motions for Reconsideration. See Tenneco Oil Co./Major Oil Co., 13 DOE ¶ 85,322 (1985) (motion granted); Aminoil U.S.A., Inc./Saber Marketing Co., 17 DOE ¶ 85,491 (1988) (motion denied). We generally grant Motions for Reconsideration if the movant presents a compelling reason sufficient to demonstrate that reconsideration is justified.

As our September 11, 1996 letter indicated, our concern was that duplicate Applications for Refund had been filed with this Office, and a crude oil refund applicant is only permitted to submit one application for its share of all available crude oil overcharge funds. When duplicate refund applications are filed, we generally contact the owner of the business and ask that he inform this Office which application should be dismissed. That was done in this case. Moreover, WKA's Motion for Reconsideration incorrectly states that the refund claim filed directly by the company (Case No. RG272-387) is undocumented. In fact, that claim contains the firm's actual petroleum product purchase figures in dollars, whereas the WKA application relied on less accurate data to derive its estimates. Accordingly, the dismissal letter was proper, and the Motion for Reconsideration shall be denied.

III. ANALYSIS OF REFUND CLAIM

In accordance with our usual procedures in processing refund applications, we will evaluate the refund claim in Case No. RG272-387 using the best available information. We have reviewed the information submitted by E.D. Fee and have determined that it was an end-user of petroleum products.(1) This applicant has demonstrated the volume of its claim by submitting actual dollar figures obtained from its ledger reports. In a filing received on November 25, 1996, WKA indicated that the methodology originally used by E.D. Fee to compute the estimated purchase volume of 775,449 gallons was flawed. WKA stated that the estimate was based on price per gallon figures that assumed the firm purchased equal amounts of motor gasoline and diesel fuel when, according to E.D. Fee, only 1 percent of its purchases were motor gasoline. WKA therefore estimated the firm's purchases using only the average annual prices of the lower-priced diesel fuel. Using this methodology, WKA estimated the firm's total purchases during the crude oil refund period to be 1,020,673 gallons. We find this to be a reasonable estimation methodology.(2) Accordingly, we will approve the E.D. Fee's revised gallonage claim of 1,020,673 gallons.

The refund amount E.D. Fee will receive equals the approved number of gallons of petroleum products that E.D. Fee purchased during the period of crude oil price controls in which it operated multiplied by the current volumetric amount of $0.0016 per gallon. The total volume approved in this Decision is 1,020,673 gallons, and the refund to be granted to E.D. Fee Transfer, Inc. is $1,633. In a Statement signed on October 4, 1996, Mr. Darrell Johnston indicated that any refund due the company should be sent to WKA. Accordingly, this Office will send the refund granted to the WKA.

Although we have carefully scrutinized the applicant's claim and supporting data, the determination reached in this Decision is based on the representations made by the applicant. If the factual basis underlying our determination in this Decision is later shown to be inaccurate, this Office has the authority to order appropriate remedial action, including rescission or reduction of the refund.

The deadline for the crude oil proceeding, June 30, 1995, has passed. It is the current policy of the DOE to pay eligible crude oil refund claimants at the rate of $0.0016 per gallon. We will decide after the resolution of a few outstanding enforcement proceedings whether sufficient funds are available for additional refunds.

It Is Therefore Ordered That:

(1) The Motion for Reconsideration filed by Wilson, Keller & Associates on behalf of E.D. Fee Transfer, Inc. (Case No. RR272- 00261) is hereby denied.

(2) The Application for Refund filed by E.D. Fee Transfer, Inc. (Case No. RG272-387) is hereby granted as set forth in Paragraph (3) below.

(3) The Director of Special Accounts and Payroll, Office of Departmental Accounting and Financial Systems Development, Office of the Controller, of the Department of Energy shall take appropriate action to disburse from the DOE deposit fund escrow account maintained at the Department of the Treasury denominated Crude Tracking-Claimants 4, Account No. 999DOE010Z, the sum of $1,633 to:

E.D. Fee Transfer, Inc.

OR Wilson, Keller & Associates

P.O. Box 221145

Memphis, TN 38122

(4) The determination approving the refund claim in this Decision and Order is based upon the presumed validity of the statements and documentary material submitted by the applicant. This determination may be revoked or modified at any time upon a finding that the basis underlying the Application for Refund is incorrect.

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: January 23, 1997

(1)Interested parties were given an opportunity to submit comments regarding individual crude oil refund applications. No such comments were filed with respect to E.D. Fee's initial refund application.

(2)In view of the extremely small portion of motor gasoline purchases, we do find it necessary to pro rate the price per gallon figure using both average gasoline and diesel prices.