Case No. RG272-01098

May 24, 2001

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Application for Refund

Name of Petitioner: MarkAir, Inc.

Date of Filing: September 7, 2000

Case Numbers: RG272-1098

This Decision and Order grants an Application for Refund filed by MarkAir, Inc. (MarkAir). MarkAir purchased refined petroleum products during the period August 19, 1973, through January 27, 1981, and has requested a refund from crude oil monies available for disbursement by the Office of Hearings and Appeals of the Department of Energy pursuant to the Statement of Modified Restitutionary Policy In Crude Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986).

In the past, purchasers of refined petroleum products could apply for refund from crude oil overcharge funds collected by the DOE from firms that sold crude oil during the price control period. Id.; 10 C.F.R. Part 205. The Office of Hearings and Appeals has established refund procedures for these funds. E.g., Barry Holding Co., 16 DOE ¶ 85,405 (1987); A. Tarricone, Inc., 15 DOE ¶ 85,495 (1987).

The refund procedures presume applicants were injured if they were end-users of petroleum products and were not covered by the DOE's or its predecessors' price controls. City of Columbus, Georgia, 16 DOE ¶ 85,550 (1987). MarkAir is an end-user of refined petroleum products.(1)

MarkAir used middle distillates in its commercial and charter airline and freight business. We have carefully reviewed the Application filed by MarkAir.(2) MarkAir is an end-user of

refined petroleum products. MarkAir claims, based upon usage records, that it purchased 109,527,935 gallons of middle distillates. After considering the Application, we have concluded that the claimed volume is accurate, and a refund of $175,244 is warranted ($0.0016 x 109,527,935 = $175,244). It is the policy of the DOE to pay all crude oil refund claims that were filed by June 30, 1995, the final deadline for the crude oil proceeding, at the rate of $.0016 per gallon. We will decide whether sufficient crude oil overcharge funds are available for additional refunds for these and other successful applicants at a later date.

It Is Therefore Ordered That:

(1)The Application for Refund filed by MarkAir, Inc., Case No. RG272-1098, 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 total of $175,244 from the DOE deposit fund escrow account denominated Crude Tracking - Claimants 4, Account Number 999DOE010Z, maintained at the Department of the Treasury. The check should be made payable to William Barstow, Trustee for the Bankruptcy Estate of MarkAir, Inc., and shall be sent to:

William Barstow, Trustee for the

Bankruptcy Estate of MarkAir, Inc.

P. O. Box 240261

Anchorage, AK 99524

(3)To facilitate the payment of 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

Washington, D.C. 20585-0107

(4) The determinations made in this Decision and Order are based upon the presumed validity of the statements and documentary materials submitted by the Applicant. These determinations may be revoked or modified at any time upon a finding that the basis underlying this 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: May 24, 2001

(1)Interested parties were provided with an opportunity to submit comments regarding individual crude oil refund applications. No such comments were filed with respect to any Application considered in this Decision.

(2)The original Application filed on behalf of Alaska International Airlines, Case No. RF272-98876, was granted on June 12, 2000, and rescinded on June 27, 2000, after it was determined that the company had changed its name to MarkAir, Inc., and was in bankruptcy. Alaska International Airlines, Case No. RC272-00407 (June 27, 2000). After rescinding the original Application, we asked for and received additional information supporting the original claim. Letter dated September 11, 2000, from Janet R. H. Fishman, Attorney-Examiner, to John C. Siemers, Esq., Attorney for Bankruptcy Trustee of MarkAir, Inc.