Case No. RK272-01565
September 2, 1998
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Supplemental Order
Name of Applicant: Atchison Casting Corporation
Date of Filing: July 14, 1995
Case Number: RK272-01565
This Decision and Order will consider an Application for Supplemental Refund filed by Atchison Casting Corporation (Atchison) in the Subpart V crude oil refund proceeding being conducted by the Office of Hearings and Appeals (OHA). (1) The Application is based upon purchases of refined petroleum products made by Rockwell International (Rockwell).
According to C.L. Surritt, Atchisons Vice President of Manufacturing Services, Atchison purchased all the assets of Rockwells Off-Highway Products and Driveline Division. Mr. Surritt did not believe Atchison purchased any of Rockwells stock, however. Surritt agreed to check the language in the Asset Purchase Agreement between the Rockwell and Atchison to ascertain whether the subject refund was conveyed to Atchison. OHA contacted Mr. Surritt on four occasions, August 15, 1997, September 25, 1997, January 9, 1998, and August 25, 1998, to learn whether the Asset Purchase Agreement between the parties implicitly or explicitly conveyed the subject refund to Atchison. OHA never received any oral or written communication from Atchison regarding this matter.
OHA has a statutory duty to identify and provide restitution to injured persons. 15 U.S.C. § 4502(b). The Office would be negligent in discharging that duty if it granted a refund to someone other than an identified injured person. Texaco/Huffy Gas, 22 DOE ¶ 85,220 at 88,586, n.4 (1992). Therefore, the refund procedures the Office has established provide that the right to receive a refund generally remains with the owner of a firm during the price control period. Nevertheless, the right to receive a refund can be transferred to a subsequent owner of the firm if: (i) the firm is a corporation, the entire capital stock of which was purchased by the subsequent owner; or (ii) the firms assets were sold under an agreement that indicated, either explicitly or implicitly, that potential refunds were being transferred. Mrs. M.B. Troy, 23 DOE ¶ 85,049 (1993).
In this case, the record is devoid of any evidence that Atchison purchased Rockwells capital stock. Moreover, Atchison has not provided any evidence that the Asset Purchase Agreement between the parties transferred the right to the subject refund to Atchison. As such, it appears that the owners of the Rockwells capital stock may not have relinquished their right to receive the supplemental crude oil refund based on the Rockwells Off-Highway Products and Driveline Divisions petroleum purchases during the price control period. We will therefore deny the Application submitted by Atchison.
It Is Therefore Ordered That:
(1) The Application for Supplemental Refund filed by Atchison Casting Corporation, Case No. RF272-01565, be and hereby is denied.
(2) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date:September 2, 1998
(1)For information pertaining to the Supplemental Distribution of Subpart V Crude Oil Refund Monies, see State of Montana, et al., 25 DOE ¶ 85,059 (1995).