[Federal Register Volume 70, Number 189 (Friday, September 30, 2005)]
[Notices]
[Pages 57274-57276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19589]


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DEPARTMENT OF ENERGY


Proposed Procedures for Distribution of Remaining Crude Oil 
Overcharge Refunds

AGENCY: Office of Hearings and Appeals, Department of Energy.

ACTION: Notice of proposed procedures for distribution of remaining 
crude oil overcharge refunds and opportunity for comment.

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SUMMARY: In a May 21, 2004 Notice, the Department of Energy (DOE) 
Office of Hearings and Appeals (OHA) announced procedures for making 
one final round of refund payments in this proceeding. However, there 
is ongoing litigation that could affect the amount of crude oil monies 
available for distribution, thus making it unworkable at this point to 
have a single, last round of payments that would exhaust the remaining 
crude oil refund monies. We instead propose here to issue partial 
refunds amounting to approximately 90% of the money due each eligible 
claimant.

DATES: Comments must be filed in duplicate within 30 days of 
publication of this Notice in the Federal Register.

ADDRESSES: Comments should be addressed to: Crude Oil Refund 
Proceeding, Office of Hearings and Appeals, Department of Energy, 
Washington, DC 20585-1615, and submitted electronically to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Steven Goering, Staff Attorney, or 
Richard Cronin, Assistant Director, Office of Hearings and Appeals, 
Department of Energy; telephone: 202-287-1449, e-mail: 
[email protected], [email protected].

SUPPLEMENTARY INFORMATION: OHA published a Notice of final procedures 
for final crude oil refunds in the Federal Register on May 21, 2004. 69 
FR 29300. In the May 21 notice, we explained that we would be sending 
notice to all claimants (or their representatives of record) who 
purchased more than 280,000 gallons of eligible petroleum products 
during the relevant period. We also stated that claimants would be 
required, no later than December 31, 2004, to submit verification of 
the information in our database. Shortly after issuing the May 21 
Notice, we sent notice to claimants and received 30,873 timely 
submissions.
    In the May 21 notice, we set forth a plan to make one final round 
of refund payments, with the intent ``to distribute all of the reserved 
funds to claimants

[[Page 57275]]

`insofar as practicable.' '' 69 FR at 29302. We rejected a proposal by 
a representative of a few large claimants that would have required two 
disbursements, the second a ``closeout payment'' available only to 
clients of that representative and other large claimants. Id.
    Since that time, events and proliferating litigation affecting the 
windup of this crude oil refund proceeding have precluded the 
Department from proceeding with the calculation of the per-gallon 
``volumetric'' refund amount that is necessary to a single, final 
payment of refunds to all qualified applicants. Calculating the 
volumetric amount requires two fixed numbers: (1) The amount of funds 
available for distribution (``the numerator''), which is divided by (2) 
the number of gallons of eligible petroleum products purchased during 
the controls period by eligible claimants (``the denominator''). 
However, as explained below, the increasing litigation that has been 
brought to bear on the proceeding may affect both the numerator and the 
denominator of the volumetric calculation. As a result, the plan to 
make a single, final round of refunds to eligible persons is 
unworkable.
    Among matters affecting our ability to proceed with the calculation 
of a final volumetric and proceed with a final distribution is a 
decision on January 26, 2005, by the United States District Court for 
the District of Columbia. In Consolidated Edison Co. v. Abraham, Civil 
Action No. 03-1991, in which the Court awarded plaintiffs attorney's 
fees in the ``amount of thirty percent (30%) of the fund derived from 
the amount of the increase in the per million-gallon distribution over 
the $670 [per million gallons] initially proposed by DOE.'' 
Consolidated Edison v. Abraham, Civil Action No. 03-1991, slip op. at 
12 (January 26, 2005). Under this decision, a significant amount of the 
crude oil refund monies--approximately $10 million--would be paid 
directly to plaintiffs' counsel and not be available for distribution 
to individual claimants. The Department has filed Notices of Appeal 
regarding this decision, and plaintiffs have filed appeals of the order 
insofar as it denied the full amount of attorney's fees they sought, 
which would have amounted to 10% of the entire ``Subpart V'' crude oil 
fund, i.e., about $28 million. See D.C. Cir. Docket Nos. 05-5089, 05-
5090, 05-5223, and Fed. Cir. Docket Nos. 05-1309, 05-1310, 05-1450.
    The same Consolidated Edison plaintiffs have also filed actions 
challenging several outstanding OHA Decisions granting refunds. For 
example, plaintiffs are challenging the crude oil refunds granted to 
the Defense Logistics Agency and other federal and state agencies. The 
district court dismissed this challenge and plaintiffs have appealed 
that decision to both the United States Court of Appeals for the 
Federal Circuit and the United States Court of Appeals for the D.C. 
Circuit. See D.C. Dist Ct. Dkt. No. 04-382, 2005 Lexis 5663 (March 31, 
2005) (OHA Case No. RF272-00011) (Fed. Cir. Dkt. No. 05-1509 and Ct. 
App. D.C. Dkt. No. 05-5302). For other pending litigation instituted by 
the Consolidated Edison plaintiffs challenging OHA refund decisions, 
see Lubrizol Corporation v. Bodman, D.C. Dist Ct. Dkt. No. 05-1467 RWR 
(OHA Case No. RC272-00438); Hercules, Inc v. Bodman., Fed. Cir. No. 05-
1442; D.C. Cir. No. 05-5201; Dist Ct. Dkt. 02-1507 (OHA Case No. RR272-
00204); and Chesebrough-Pond's USA Co. v. Bodman, Energy Management ] 
26,752, aff'd Fed. Cir. Dkt. No. 04-1615, 128 Fed. Apx. 153 (May 4, 
2005), (OHA Case No. RF272-97101). The outcome of these cases affects 
the amount of money available for distribution to individual 
applicants. Also, a decision concerning a Motion for Reconsideration of 
OHA's denial of a refund in International Steel Group, Inc. D.C. D.Ct. 
 05-1466, (OHA Case No. RR272-00321), is also in litigation. 
See Mittal Steel USA ISG, Inc. v. Bodman, D,C. Dkt. No. 05-1466. In 
that case, a reversal of OHA's decision would add 609,873,817 gallons 
(the number of gallons claimed on the application) to the denominator 
of the volumetric. Because of the potential impact of the pending 
litigation on both the numerator and denominator of the volumetric, it 
is not feasible to have one final distribution of the crude oil funds 
at this time.
    Significant time that has elapsed since the deadline for refund 
claimants to submit verification information, such as present addresses 
and other locators. Our experience in previous crude oil refund rounds 
is that this verification information becomes quickly and increasingly 
obsolete. Insofar as it is able, OHA has resolved the issues barring 
the commencement of a final crude oil refund distribution and is in a 
position to propose--in lieu of the planned, single refund 
distribution--a partial crude oil refund distribution of the moneys 
that are not threatened by the litigation referenced above. That would 
encompass a vast majority of the funds on hand. While a partial refund 
increases the burden on the Department, OHA believes that the refund 
claimants deserve relief from the effects of the ongoing litigation. To 
make a round of partial crude oil refunds, OHA is issuing this notice 
announcing a provisional volumetric refund amount and defining that 
portion of the crude oil monies that would be reserved pending the 
resolution of the litigation. We ask interested parties to comment on 
the proposed refund procedure. Upon resolution of the aforementioned 
litigation, we would then consider procedures for another and final 
distribution of the remaining crude oil monies which would exhaust the 
crude oil fund.
    Specifically, therefore, we are proposing to make refunds to all 
claimants based upon a volumetric calculated using a numerator of 
$252,000,000, i.e., approximately 90% of all available funds, and a 
denominator of 366,324,981,322 gallons, i.e., the number of gallons of 
eligible petroleum products purchased during the controls period by 
eligible claimants (365,715,107,505 gallons) plus the number of gallons 
claimed in the application denied by OHA that is currently the subject 
of pending litigation (609,873,817 gallons). This produces a volumetric 
refund of $0.00068 and distributes approximately 90% of the money due 
to over 99.75% of all eligible claimants.\1\
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    \1\ We arrive at the volumetric refund amount by rounding down 
to the fifth decimal place. Rounding down ensures that there will be 
sufficient funds to pay refunds at a given volumetric refund amount.
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    However, prudence requires that we not distribute funds to those 
claimants whose refunds are currently being challenged by third parties 
in pending litigation. Upon the conclusion of litigation and a final 
upholding of our refund awards, we propose to promptly release the 
funds to the affected claimants. The following is a list of the 
individual claimants whose refunds we propose to handle in this 
fashion:

RF272-00011 DEFENSE LOGISTICS AGENCY
RF272-00350 WISCONSIN DEPT. TRANSPORTATION
RF272-00512 STATE OF WEST VIRGINIA
RF272-04416 STATE OF CONNECTICUT
RF272-08074 STATE OF CONNECTICUT
RF272-09853 WASHINGTON STATE PATROL
RF272-11717 WASHINGTON STATE DEPT. TRANS.
RF272-12181 NEBRASKA PUBLIC POWER DIST.
RF272-12588 STATE OF CONNECTICUT

[[Page 57276]]

RF272-17487 KENTUCKY DEPT. OF EDUCATION
RF272-18164 STATE OF NORTH DAKOTA
RF272-18963 STATE OF NEW MEXICO
RF272-19364 STATE OF MISSOURI
RF272-19386 STATE OF VERMONT
RF272-19457 STATE OF SOUTH DAKOTA
RF272-20947 LUBRIZOL CORPORATION
RF272-23229 DISTRICT OF COLUMBIA
RF272-23790 HERCULES, INC.
RF272-28260 WASHINGTON STATE FERRIES
RF272-35431 MARYLAND STATE AVIATION ADMIN.
RF272-44094 OHIO STATE HWY. PATROL
RF272-44344 STATE OF SOUTH CAROLINA
RF272-45477 ILLINOIS STATE TOLL HWY. AUTH.
RF272-49283 COMMONWEALTH OF KENTUCKY
RF272-49892 NEBRASKA ENERGY OFFICE
RF272-49898 STATE OF KANSAS
RF272-50638 WASHINGTON STATE DEPT OF TRANS
RF272-51829 WASHINGTON STATE PARKS & REC.
RF272-54955 U.S. POSTAL SERVICE
RF272-56597 STATE OF OKLAHOMA
RF272-59085 STATE OF UTAH, ENERGY OFFICE
RF272-59907 STATE OF COLORADO
RF272-60251 STATE OF WISCONSIN
RF272-61569 STATE OF MINNESOTA
RF272-61591 ARKANSAS HWY. & TRANS. DEPT.
RF272-62009 STATE OF NEW HAMPSHIRE
RF272-62522 STATE OF NEW YORK
RF272-63433 STATE OF DELAWARE
RF272-63623 MARYLAND STATE HWY. ADMIN.
RF272-63624 MARYLAND DEPT. GENERAL SERVICE
RF272-64195 STATE ARIZONA DEPT. OF TRANS.
RF272-64288 STATE OF ARKANSAS
RF272-64986 STATE OF FLORIDA
RF272-65199 STATE OF IOWA
RF272-65398 STATE OF NEVADA
RF272-65470 STATE OF MICHIGAN
RF272-65524 ILLINOIS DEPT. OF COMMERCE
RF272-65526 ALASKA DEPT OF TRANS & PUB FAC
RF272-66878 NEW YORK TRANSIT AUTHORITY
RF272-67007 COMMONWEALTH OF PENNSYLVANIA
RF272-67187 STATE OF INDIANA
RF272-67248 STATE OF CALIFORNIA
RF272-67313 STATE OF TEXAS
RF272-67507 STATE OF VERMONT DEPT. OF COR.
RF272-67509 STATE OF VERMONT--TRANSPORTTN
RF272-67586 STATE OF ALABAMA
RF272-68243 NEW JERSEY TRANSIT CORP.
RF272-68934 NEW YORK STATE THRUWAY AUTH.
RF272-69744 STATE OF NEW JERSEY
RF272-69948 WEST VIRGINIA HWY. DEPT.
RF272-71331 STATE OF TENNESSEE
RF272-74169 STATE OF MAINE
RF272-75269 VIRGINIA DEPT. OF STATE POLICE
RF272-87985 STATE OF MARYLAND
RF272-97101 CHESEBROUGH-POND'S USA CO.
RF272-98890 COMMONWEALTH OF VIRGINIA
RG272-00507 STATE OF OHIO
RK272-00147 STATE OF MONTANA
RK272-00362 STATE OF KANSAS
RK272-03404 WYOMING DEPT. OF TRANSPORTATN.
RK272-03418 STATE OF GEORGIA--ENERGY RES.
RK272-04041 STATE OF NORTH CAROLINA
RR272-00207 STATE OF TENNESSEE
    OHA seeks comments on these proposed procedures. Interested parties 
should send comments to the address shown on the present Notice. After 
OHA considers the comments received, we will issue a final Notice that 
will explain how we will proceed with the refund process. The final 
Notice will be published in the Federal Register, and it will be 
available on the OHA Web site, http://www.oha.doe.gov/.

    Issued in Washington, DC on September 26, 2005.
George B. Breznay,
Director, Office of Hearings and Appeals.
[FR Doc. 05-19589 Filed 9-29-05; 8:45 am]
BILLING CODE 6450-01-P