[Federal Register Volume 59, Number 212 (Thursday, November 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27304]


[[Page Unknown]]

[Federal Register: November 3, 1994]


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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 $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