Case No. RG272-00490

March 26, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Application for Refund

Name of Petitioner: DFDS A/S

Date of Filing: June 28, 1995

Case Number: RG272-00490

This Decision and Order will consider an Application for Refund that was submitted by DFDS A/S (DFDS), a maritime shipping company located in Copenhagen, Denmark. DFDS' vessels purchased refined petroleum products during their visits to ports in the United States during the period August 19, 1973, through January 27, 1981 (the crude oil price control period). DFDS has requested a refund from crude oil monies available for disbursement by the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) pursuant to the OHA's authority under 10 C.F.R. Part 205, Subpart V.

This refund proceeding was instituted to allow purchasers of refined petroleum products during the price control period to apply to the OHA for a refund from crude oil overcharge funds collected by the DOE. Statement of Modified Restitutionary Policy in Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986). We have established refund procedures for these funds, which have been made available through consent orders entered into by the DOE and numerous firms that sold crude oil during the crude oil price control period. E.g., Berry Holding Co., 16 DOE ¶ 85,405 (1987); A. Tarricone, Inc., 15 DOE ¶ 85,495 (1987); Mountain Fuel Supply Co., 14 DOE ¶ 85,475 (1986).

The refund procedures set forth in these cases specify that in order to receive a refund, an applicant generally must (1) document its purchase volumes and (2) show that it was injured by alleged crude oil overcharges. However, as we discussed in City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987), applicants who were end- users of petroleum products and whose businesses were not covered by the DOE's or its predecessors' price controls are presumed to have been injured.

Generally, a claimant is eligible for a refund equal to the number of gallons it purchased multiplied by $0.0016. We derived this volumetric refund amount by dividing the total crude oil refund monies currently available by the total U.S. consumption of petroleum products during the period of crude oil price controls (2,020,997,335,000 gallons).

In its application, DFDS seeks a refund based on purchases of diesel fuel and bunker fuel totaling 45,280,415 gallons. This gallonage claim is based on estimates of purchases of petroleum products in U.S. ports for the applicant's vessels. Its methodology was based on its ships' average daily fuel consumption, the number of days that their voyages lasted, and the petroleum product purchasing patterns of its vessels. It also documented its claimed numbers and locations of voyages. DFDS' estimation technique is similar to that used in a recent prior case. See Pan Ocean Shipping Co., Ltd., 26 DOE ¶ 85,031 (1997).

We have thoroughly examined DFDS' estimated gallonage figures and the information submitted in support of those figures. We conclude that the estimation technique used is reasonable and that the volumes claimed reflect accurately the applicant's purchases. We will therefore approve DFDS' gallonage claim.

DFDS purchased its refined petroleum products for use in a business that is unrelated to the petroleum industry and did not resell those products. DFDS is therefore an end-user of refined petroleum products and is presumed to have been injured by the crude oil overcharges. Accordingly, the applicant is entitled to receive its full allocable share of the crude oil monies. DFDS will receive a refund of $72,449 (45,280,415 gallons x $0.0016).

The final deadline for applications in the crude oil refund proceeding was June 30, 1995. 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 whether sufficient crude oil overcharge funds are available for additional refunds for this applicant and other successful applicants when we are better able to determine how much additional money will be collected from firms that have either outstanding obligations to the DOE or enforcement cases currently in litigation.

It Is Therefore Ordered That:

(1) The Application for Refund filed by DFDS A/S for all available crude oil overcharge funds is hereby approved as set forth in Paragraph (2) below.

(2) 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 a refund of $72,449 from the DOE deposit fund escrow account denominated Crude Tracking - Claimants 4, Account Number 999DOE010Z, maintained at the Department of the Treasury to:

Holland & Knight, as attorneys OR DFDS A/S

c/o J. Michael Cavanaugh, Esq.

2100 Pennsylvania Ave., N.W.

Suite 400

Washington, D.C. 20037-3202

(3) To facilitate the payment of any future refunds, the applicant shall notify the Office of Hearings and Appeals in the event that there is a change of address, or if an address correction is necessary. Such notification shall be sent to:

Director of Management Information

Office of Hearings and Appeals

Department of Energy

1000 Independence Avenue, S.W.

Washington, D.C. 20585-0107

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

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

George B. Breznay

Director

Office of Hearings and Appeals

Date: March 26, 1997