Implementation of Special Refund Procedures

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 $100,697.87,

plus accrued interest, in refined petroleum product violation amounts

obtained by the DOE pursuant to a June 21, 1982 Remedial Order issued

to Beacon Bay Enterprises, Inc. (Beacon Bay), Case No. LEF-0074. The

OHA has determined that the funds obtained from Beacon Bay, plus

accrued interest, will be distributed to customers who purchased

gasoline from Beacon Bay during the period August 1, 1979 through March

31, 1980.

DATES AND ADDRESSES: Applications for Refund must be filed in

duplicate, addressed to ``Beacon

Bay Special Refund Proceeding,'' and sent to: Office of Hearings and

Appeals, Department of Energy, 1000 Independence Ave., S.W. Washington,

D.C. 20585.

Applications should display a prominent reference to case number

``LEF-0074'' and be postmarked by May 1, 1995.

FOR FURTHER INFORMATION CONTACT: Thomas O. Mann, Deputy Director, Roger

Klurfeld, Assistant Director, Office of Hearings and Appeals, 1000

Independence Avenue, S.W., Washington, D.C. 20585, (202) 586-2094

(Mann); 586-2383 (Klurfeld).

SUPPLEMENTARY INFORMATION:

In accordance with 10 C.F.R. 205.282 (b), 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 to eligible claimants $100,697.87, plus accrued interest,

obtained by the DOE pursuant to a June 21, 1982 Remedial Order. In the

Remedial Order, the DOE found that, during the period August 1, 1979

through March 31, 1980, Beacon Bay had sold motor gasoline at prices in

excess of the maximum lawful selling price, in violation of Federal

petroleum price regulations.

The OHA has determined to distribute the funds obtained from Beacon

Bay in two stages. In the first stage, we will accept claims from

identifiable purchasers of gasoline from Beacon Bay who may have been

injured by overcharges. The specific requirements which an applicant

must meet in order to receive a refund are set out in Section III of

the Decision. Claimants who meet these specific requirements will be

eligible to receive refunds based on the number of gallons of gasoline

which they purchased from Beacon Bay.

If any funds remain after valid claims are paid in the first stage,

they may be used 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.

Applications for Refund must be postmarked by May 1, 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 labelled 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, S.W., Washington, D.C. 20585.

Dated: October 27, 1994.

George B. Breznay,

Director, Office of Hearings and Appeals.

Decision and Order of the Department of Energy

Implementation of Special Refund Procedures

Name of Firm: Beacon Bay Enterprises, Inc.

Date of Filing: July 20, 1993.

Case Number: LEF-0074.

On July 20, 1993, the Economic Regulatory Administration (ERA)

of the Department of Energy (DOE) filed a Petition for the

Implementation of Special Refund Procedures with the Office of

Hearings and Appeals (OHA) to distribute the funds which Beacon Bay

Enterprises, Inc. (Beacon Bay) remitted to the DOE pursuant to a

June 21, 1982 Remedial Order. Beacon Bay has remitted $100,697.87

pursuant to the order, to which $3,919.39 in interest has accrued as

of September 30, 1994. In accordance with the provisions of

procedural regulations at 10 C.F.R. part 205, subpart V (subpart V),

the ERA requests in its Petition that the OHA establish special

procedures to make refunds in order to remedy the effects of

regulatory violations set forth in the Remedial Order. This Decision

and Order sets forth the OHA's plan to distribute these funds.

I. Background

During the period relevant to this proceeding, Beacon Bay

operated 11 retail service stations in Southern California. The ERA

issued a Proposed Remedial Order (PRO) to Beacon Bay on July 29,

1980. The PRO alleged that, during the period August 1, 1979 through

March 31, 1980, Beacon Bay sold motor gasoline at prices in excess

of the maximum lawful selling price, in violation of Federal

petroleum price regulations. The DOE amended the PRO and issued a

Final Remedial Order on June 21, 1982, after considering Beacon

Bay's objections to the PRO. Beacon Bay Enterprises, 9 DOE 83,039

(1982). On August 23, 1982, Beacon Bay appealed the DOE's Final

Remedial Order to the Federal Energy Regulatory Commission (FERC).

The FERC issued a Proposed Order on November 15, 1982, Beacon Bay

Enterprises, 21 FERC 62,295 (1982), and an Order on January 25,

1983, Beacon Bay Enterprises, 22 FERC 61,059 (1983), both of which

affirmed and adopted the DOE's Final Remedial Order. Beacon Bay has

since remitted $100,697.87 to the DOE, in compliance with the

Remedial Order (the Beacon Bay Remedial Order fund), which is now

available for distribution through Subpart V.

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 for the

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 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. 4501 et seq.; Office of Enforcement, 9 DOE

82,508 (1981); Office of Enforcement, 8 DOE 82,597 (1981)

(Vickers).

We have considered the ERA's Petition that we implement a

Subpart V proceeding with respect to the Beacon Bay Remedial Order

fund and have determined that such a proceeding is appropriate. This

Decision and Order sets forth the OHA's plan to distribute this

fund.

III. Refund Procedures

On August 19, 1994, the OHA issued a Proposed Decision and Order

(PD&O) establishing tentative procedures to distribute the Beacon

Bay Remedial Order fund. 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 59 FR 44720)

(August 30, 1994). More than 30 days have elapsed and the OHA has

received no comments concerning the proposed procedures for the

distribution of the Beacon Bay Remedial Order fund. Consequently,

the procedures will be adopted as proposed.

We will implement a two-stage refund procedure for distribution

of the Beacon Bay Remedial Order Fund. In the first stage,

purchasers of gasoline from Beacon Bay during the period covered by

the Remedial Order may submit Applications for Refund. From our

experience with Subpart V proceedings, we expect that potential

applicants generally with fall into the following categories: (i)

End-users; (ii) regulated entities, such as cooperatives; and (iii)

resellers and retailers.

A. First-Stage Refund Procedures

In order to receive a refund, each claimant will be required to

submit a schedule of its monthly purchases of gasoline from Beacon

Bay during the period covered by the Remedial Order--August 1979

through March 1980. If the gasoline was not purchased directly from

Beacon Bay, the claimant must establish that the gasoline originated

with Beacon Bay. Additionally, a reseller or retailer claimant,

except one who chooses to utilize the injury presumptions set forth

below, will be required to make a detailed showing that it was

injured by Beacon Bay's overcharges. This showing will generally

consist of two distinct elements. First, a reseller or retailer

claimant will be required to show that it had ``banks'' of

unrecouped increased product costs in excess of the refund

claimed.1 Second, because a showing of banked costs alone is

not sufficient to establish injury, a claimant must also provide

evidence that market conditions precluded it from increasing its

prices to pass through the additional costs associated with the

overcharges. See Vaqueros Energy Corp./Hutches Oil Co., Inc., 11 DOE

85,070 at 88,105 (1983). Such a showing could consist of a

demonstration that a firm suffered a competitive disadvantage as a

result of its purchases from Beacon Bay. See National Helium Co./

Atlantic Richfield Corp., 11 DOE 85,257 (1984), aff'd sub nom.

Atlantic Richfield Co. v. DOE, 618 F. Supp. 1199 (D. Del. 1985).

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\1\Claimants who have previously relied upon their banked costs

in order to obtain refunds in other special refund proceedings

should subtract those refunds from any cost banks submitted in this

refund proceeding. See Husky Oil Co./Metro Oil Products, Inc., 16

DOE 85,090, at 88,179 (1987). Additionally, a claimant attempting

to show injury may not receive a refund for any month in which it

has a negative accumulated cost bank (for gasoline) or for any prior

month. See Standard Oil Co., (Indiana)/Suburban Propane Gas Corp./

Sturdy Oil Co., 15 DOE 85,187 (1986). If a claimant no longer has

records showing its banked costs, the OHA may use its discretion to

permit the claimant to approximate those cost banks. See, e.g., Gulf

Oil Corp./Sturdy Oil Co., 15 DOE 85,187 (1986).

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Our experience also indicated that the use of certain

presumptions permits claimants to participate in the refund process

without incurring inordinate expense and ensures that refund claims

are evaluated in the most efficient manner possible. See, e.g.,

Marathon Petroleum Co., 14 DOE 85,269 (1986) (Marathon).

Presumptions in refund cases are specifically authorized by the

applicable subpart V regulations at 10 C.F.R. Sec. 205.282 (e).

Accordingly, we will adopt the presumptions set forth below.

1. Calculation of Refunds. First, we will adopt a presumption

that the overcharges were dispersed equally in all of Beacon Bay's

sales of gasoline during the period covered by the Remedial Order.

In accordance with this presumption, refunds are made on a pro-rata

or volumetric basis.2 In the absence of better information, a

volumetric refund is appropriate because the DOE price regulations

generally required a regulated firm to account for increased costs

on a firm-wide basis in determining its prices.

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\2\If a claimant believes that it was injured by more than its

volumetric share, it may elect to forego this presumption and file a

refund application based upon a claim that it suffered a

disproportionate share of Beacon Bay's overcharges. See, e.g., Mobil

Oil Corp./Atchison, Topeka and Santa Fe Railroad Co., 15 DOE 85,788

(1990); Mobil Oil Corp./Marine Corps Exchange Service, 17 DOE

85,714 (1988). Such a claim will be granted if the claimant makes a

persuasive showing that it was ``overcharged'' by a specific amount,

and that it absorbed these overcharges. See Panhandle Eastern

Pipeline Co.,/Western Petroleum Co., 19 DOE 85,705 (1989). To the

degree that a claimant makes this showing, it will receive an above-

volumetric refund.

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Under the volumetric approach, a claimant's ``allocable share''

of the Remedial Order fund is equal to the number of gallons

purchased from Beacon Bay during the period covered by the Remedial

Order times the per gallon refund amount. In the present case, the

per gallon refund amount is $0.0690. We derived this figure by

dividing the amount of the Remedial Order fund, $100,697.87, by

1,460,321 gallons, the volume of gasoline which Beacon Bay sold from

August 1, 1979 through March 31, 1980. A claimant that establishes

its eligibility for a refund will receive all or a portion of its

allocable share plus a pro-rata share of the accrued interest.3

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\3\As in previous cases, we will establish a minimum refund

amount of $15. In this proceeding, any potential claimant purchasing

less than 211 gallons of gasoline from Beacon Bay would have an

allocable share of less than $15. We have found through our

experience that the cost of processing claims in which refunds for

amounts less than $15 are sought outweighs the benefits of

restitution in those instances. See Exxon Corp., 17 DOE 85,590 at

89,150 (1988) (Exxon).

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In addition to the volumetric presumption, we will also adopt a

number of presumptions regarding injury for claimants in each

category listed below.

2. End-Users. In accordance with prior Subpart V proceedings, we

will adopt the presumption that an end-user or ultimate consumer of

gasoline purchased from Beacon Bay whose business is unrelated to

the petroleum industry was injured by the overcharges resolved by

the Remedial Order. See, e.g., Texas Oil and Gas Corp., 12 DOE

85,069 at 88,269 (1984) (TOGCO). Unlike regulated firms in the

petroleum industry, members of this group generally were not subject

to price controls during the period covered by the Remedial Order,

and were not required to keep records which justified selling price

increases by reference to cost increases. Consequently, analysis of

the impact of the overcharges on the final prices of goods and

services produced by members of this group would be beyond the scope

of the refund proceeding. Id.

Accordingly, end-users of gasoline purchased from Beacon Bay

need only document their purchase volumes from Beacon Bay during the

period covered by the Remedial Order to make a sufficient showing

that they were injured by the overcharges.

3. Regulated Firms and Cooperatives. In order to receive a full

volumetric refund, a claimant whose prices for goods and services

are regulated by a governmental agency, i.e. a public utility, or an

agricultural cooperative which is required by its charter to pass

through cost savings to its member-purchasers, need only submit

documentation of purchases used by itself or, in the case of a

cooperative, sold to its members. However, a regulated firm or a

cooperative will also be required to certify that it will notify the

appropriate regulatory body or membership group of the receipt of

the refund. See Marathon, 14 DOE at 88,514-15. This requirement is

based upon 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. With respect to a cooperative, in general, the

cooperative agreement which controls its business operations would

ensure that the overcharges, and similarly refunds, would be passed

through to its member-customers. Accordingly, these firms will not

be required to make a detailed demonstration of injury.4

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\4\A cooperative's purchases of gasoline from Beacon Bay which

were resold to non-members will be treated in a manner consistent

with purchases made by other resellers. See Total Petroleum, Inc.,/

Farmers Petroleum Cooperative, Inc., 19 DOE 85.215 (1989).

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4. Resellers and Retailers. a. Small Claims Presumption. We will

adopt a ``small claims'' presumption that a firm which resold

gasoline purchased from Beacon Bay and requests a small refund was

injured by the overcharges. Under the small claims presumption, a

reseller or retailer seeking a refund of $5,000 or less, exclusive

of interest, will not be required to submit evidence of injury

beyond documentation of the volume of gasoline it purchased from

Beacon Bay during the period covered by the Remedial Order. See

TOGCO, 12 DOE at 88,210. This presumption is based on the fact that

there may be considerable expense involved in gathering the types of

data necessary to support a detailed claim of injury; for small

claimants the expense might possibly exceed the potential refund.

Consequently, failure to allow simplified refund procedures for

small claims could deprive injured parties of their opportunity to

obtain a refund. Furthermore, the use of the small claims

presumption is desirable in that it allows the OHA to process the

large number of routine refund claims expected in an efficient

manner.5

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\5\In order to qualify for a refund under the small claims

presumption, a reseller or retailer must have purchased less than

72,471 gallons of gasoline from Beacon Bay during the settlement

agreement period.

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b. Mid-Level Claim Presumption. In addition, a reseller or

retailer claimant whose allocable share of the refund pool exceeds

$5,000, excluding interest, may elect to receive as its refund

either $5,000 or 40 percent of its allocable share.6 The use of

this presumption reflects our conviction that these larger, mid-

level claimants were likely to have experienced some injury as a

result of the overcharges. See Marathon, 14 DOE at 88,515. In some

prior special refund proceedings, we have performed detailed

analyses in order to determine product-specific levels of injury.

See, e.g., Getty Oil Co., 15 DOE 85,064 (1986). However, in Gulf

Oil Corp., 16 DOE 85,381 at 88,737 (1987), we determined that based

upon the available data, it was more accurate and efficient to adopt

a single presumptive level of injury of 40 percent for all mid-level

claimants, regardless of the refined product that they purchased,

based upon the results of our analyses in prior proceedings. We

believe that approach generally to be sound, and we will therefore

adopt a 40 percent presumptive level of injury for all mid-level

claimants in this proceeding. Consequently, an applicant in this

group will only be required to provide documentation of its purchase

volumes of gasoline from Beacon Bay during the Remedial Order period

in order to be eligible to receive a refund of 40 percent of its

total allocable share or $5,000, whichever is greater.7

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\6\Under the mid-level presumption, a claimant which purchased

between 72,471 gallons and 181,177 gallons from Beacon Bay would be

eligible to receive a principal refund, exclusive of interest, of

$5,000. A claimant purchasing more than 181,177 gallons of petroleum

products would be eligible for a principal refund equal to 40

percent of its allocable share.

\7\A claimant that attempts to make a detailed showing of injury

in order to obtain 100 percent of its allocable share but, instead,

provides evidence that leads us to conclude that it passed through

all of the overcharges, or that it was injured in an amount less

than the presumptive level refund, may not necessarily receive a

full presumption-based refund. Instead, such a claimant may receive

a refund which reflects the level of injury established in its

application.

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c. Spot Purchasers. Finally, we will adopt a rebuttable

presumption that a reseller or retailer that made only spot

purchases from Beacon Bay did not suffer injury as a result of those

purchases. As we have previously stated, spot purchasers generally

had considerable discretion as to the timing and location of their

purchases, and therefore would not have made spot market purchases

from a firm at increased prices unless they were able to pass

through the full amount of the firm's selling price to their own

customers. See, e.g., Vickers, 8 DOE at 85,396-97. Accordingly, a

spot purchaser claimant must submit specific and detailed evidence

to rebut the spot purchaser presumption and to establish the extent

to which it was injured as a result of its spot purchases from

Beacon Bay.8

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\8\In prior proceedings, we have stated that refunds will be

approved for spot purchasers who demonstrated that: (1) they made

the spot purchases for the purpose of ensuring a supply for their

base period customers rather than in anticipation of financial

advantage as a result of those purchases, and (2) they were forced

by market conditions to resell the product at a loss that was not

subsequently recouped through the draw down of banks. See, e.g.,

Texaco Inc., 20 DOE  85,147 at 88,321 (1990); Quaker State Oil

Refining Corp./Certified Gasoline Co., 14 DOE  85,465 (1986).

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B. Refund Application Requirements

To apply for a refund from the Beacon Bay Remedial Order fund, a

claimant should submit an Application for Refund containing all of

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 any additional

information, and the name and address of the person who should

receive any refund check.9 If the applicant operated under more

than one name or under a different name during the price control

period, the applicant should specify those names;

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\9\Under the Privacy Act of 1974, the submission of a social

security number by an individual applicant is voluntary. An

applicant that does not wish to 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.

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(2) The applicant's use of gasoline purchased from Beacon Bay:

e.g., consumer (end-user), reseller, cooperative, or public utility;

(3) A monthly purchase schedule covering the period August 1,

1979 through March 31, 1980. The applicant should specify the source

of its 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

methodology must be reasonable and must be explained in detail;

(4) If the applicant was a direct purchaser from Beacon Bay, it

should provide its customer number. If the applicant was an indirect

purchaser from Beacon Bay (i.e., it purchased Beacon Bay gasoline

through another supplier), it should submit the name, address, and

telephone number of its immediate supplier and should specify why it

believes that the gasoline was originally sold by Beacon Bay;

(5) If the applicant is a regulated utility or cooperative,

certifications that it will pass on the entirety of any refund

received to its customers, will notify its state utility commission,

or other regulatory agency, or membership body of the receipt of any

refund, and a brief description of how the refund will be passed

along;

(6) If the applicant is a retailer, reseller, or refiner whose

allocable share exceeds $5,000 (i.e., whose purchases equal or

exceed 72,471 gallons), it must indicate whether it elects to rely

on the appropriate reseller injury presumption and receive the

larger of $5,000 or 40% of its allocable share. If it does not elect

to rely on the injury presumption, it must submit a detailed showing

that it absorbed Beacon Bay's overcharges. See Section III.A.4

supra;

(7) A statement as to whether the applicant or a related firm

has filed, or has authorized any individual to file on its behalf,

any other application in the Beacon Bay refund proceeding. If so, an

explanation of the circumstances of the other filing or

authorization should be submitted;

(8) A statement as to whether the applicant is or was in any way

affiliated with Beacon Bay. If the applicant was so affiliated, it

should explain this affiliation, including the time period in which

it was affiliated;10

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\1\0Affiliates of firms that have remitted overcharge funds to

the DOE are generally not entitled to share in those funds. If an

affiliate of Beacon Bay were granted a refund, Beacon Bay would be

indirectly compensated from a Remedial Order fund remitted to settle

its own violations. See Propane Industrial, Inc. v. Department of

Energy, No. 8-23, slip op. at 3 (Temp. Emer. Ct. App. January 8,

1993). In addition, Beacon Bay 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  85,611 (1987), amended claim denied,

17 DOE  85,291 (1988), reconsideration denied, 20 DOE  85,236

(1990).

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(9) A statement as to whether the ownership of the applicant's

firm changed during or since the Remedial Order period. If an

ownership change occurred, the applicant should list the names,

addresses, and telephone numbers of any prior or subsequent owners.

The applicant should also provide copies of any relevant Purchase

and Sales Agreements, if available. If such written documents are

not available, the applicants should submit a description of the

ownership change, including the year of the sale and the type of

sale (e.g., sale of corporate stock, sale of company assets);

(10) A statement as to whether the applicant has ever been a

party in a DOE enforcement action or a private Section 210 action.

If so, an explanation of the case and copies of relevant documents

should also be provided;

(11) 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 and correct 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.

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 ``Beacon Bay Special Refund Proceeding, Case No. LEF-0074.''

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 this

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 no later than May 1, 1995, and sent to: Beacon Bay

Special Refund Proceeding, Office of Hearings and Appeals,

Department of Energy, 1000 Independence Ave., Washington, D.C.

20585.

In addition, we will adopt the following procedures relating to

refund applications filed on behalf of applicants by

``representatives,'' including refund filing services, consulting

firms, accountants, and attorneys. See Texaco Inc., 20 DOE  85,147

(1990). Each such filing service shall, contemporaneously with its

first filing in the Beacon Bay proceeding, submit a statement

indicating its qualifications for representing refund applicants and

containing a detailed description of the solicitation practices and

application procedures that it has used and plans to use.11

This statement should contain the following information:12

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\1\1This statement should be submitted under separate cover and

reference the Beacon Bay refund proceeding, Case No. LEF-0074.

\1\2This information with regard to some filing services has

already been requested and received by this Office. Therefore, any

filing service that has had more than 10 Applications for Refund

approved before the issuance of this Decision and Order need not

submit this information if it has already done so in another

proceeding. Instead, such a filing service need only include a copy

of the previous submission(s) responsive to items (1)-(5) and

provide an update if its response to any of these questions has

changed since it first submitted its information. However, in light

of the importance of this information, it is prudent for all filing

services to review their practices and inform the OHA of any

alterations or improvements that have been made.

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(1) A description of the procedures used to solicit refund

applications in the Beacon Bay proceeding and copies of any

solicitation materials mailed to prospective Beacon Bay applicants;

(2) A description of how the filing service obtains

authorization from its clients to act as their representative,

including copies of any type of authorization form signed by refund

applicants;

(3) A description of how the filing service obtains and verifies

the information contained in refund applications;

(4) A description of the procedures used to forward refunds to

its clients;

(5) A description of the procedures used to prevent and check

for duplicate filings.

Upon receipt of this information, we may suggest alteration of a

filing service's procedures if they do not conform to the procedural

requirements of 10 CFR Part 205 and this proceeding.

Second, we will require strict compliance with the filing

requirements as specified in 10 CFR 205.283, particularly the

requirement that applications and the accompanying certification

statement be signed by the applicant.

Third, in any case where an application has been signed and

dated before the issuance of this Decision and Order, we will

require a certification statement, signed and dated by the applicant

after the date of the issuance of this Decision and Order. The

certification should state that the applicant has not filed and will

not file any other Application for Refund in the Beacon Bay

proceeding and that, after having been provided a copy of this

Decision and Order, it still authorizes that filing service to

represent it.

Fourth, we will require from each representative a statement

certifying that it maintains a separate escrow account at a bank or

other financial institution for the deposit of all refunds received

on behalf of applicants, and that its normal business practice is to

deposit all Subpart V refund checks in that account within two

business days of receipt and to disburse refunds to the applicants

within 30 calendar days thereafter. Unless such certification is

received by the OHA, all refund checks approved will be made payable

solely to the applicant. Representatives who have not previously

submitted an escrow certification form to the OHA may obtain a copy

of the appropriate form by contacting: Marcia B. Carlson, HG-13,

Chief, Docket & Publications Branch, Department of Energy,

Washington, D.C. 20585.

Finally, 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

in this Decision and Order.

C. Distribution of Funds Remaining After First Stage

Any funds that remain after all first stage claims have been

decided shall be distributed in accordance with the provisions of

the Petroleum Overcharge Distribution and Restitution Act of 1986

(PODRA), 15 U.S.C. Secs. 4501-07. The 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 in the Beacon Bay Remedial Order fund that the OHA determines

will not be needed to effect direct restitution to injured customers

will be distributed in accordance with the provisions of the PODRA.

It Is Therefore Ordered That:

(1) Applications for Refund from the funds remitted to the

Departement of Energy by Beacon Bay Enterprises, Inc. pursuant to

the Remedial Order issued on June 21, 1982, may now be filed.

(2) Applications for Refund must be postmarked no later than May

1, 1995.

Dated: October 27, 1994.

George B. Breznay,

Director, Office of Hearings and Appeals.

[FR Doc. 94-27304 Filed 11-2-94; 8:45 am]

BILLING CODE 6450-01-P