Case No. RF300-13634
February 3, 1998
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Application for Refund
Name of Applicant: Gulf Oil Corp./ G.J. Food Center Inc.
Date of Filing: November 15, 1990
Case Number: RF300-13634
This Decision and Order will consider an Application for Refund submitted in the Gulf Oil Corporation overcharge refund proceeding by Samuel V. Johnson for G.J. Food Center, Inc. Johnson has requested a refund from Gulf funds available for disbursement by the Office of Hearings and Appeals (OHA) of the Department of Energy (the Department) under the provisions of 10 C.F.R. Part 205, Subpart V. As explained below, we will deny the Application.
A consent order between the Department and Gulf resolved allegations that Gulf had violated the Mandatory Petroleum Price and Allocation Regulations in its sales of crude oil and refined petroleum products from January 1, 1973 through January 27, 1981. In accordance with the goals of 10 C.F.R. Part 205, Subpart V, the OHA set up a process for refunding consent order funds to purchasers of Gulf refined petroleum products who demonstrate that they were injured by Gulf's regulatory violations. The procedures for disbursing the Gulf funds were set forth in Gulf Oil Corp., 16 DOE ¶ 85,381 (Gulf).
Under the procedures established in Gulf, an applicant is generally required to demonstrate that it was injured by its Gulf purchases. A demonstration of injury must show that the applicant did not pass through to its customers Gulf's overcharges. The OHA also established presumptions to allow certain applicants to receive a refund without providing a demonstration of injury. These presumptions apply to resellers, retailers, and refiners claiming less than a specified amount; end-users; and consignees that sold on consignment from Gulf.(1)
According to information on the Application, G.J. Food Center was a convenience store and retail outlet for Gulf products in Eden, North Carolina. Johnson operated G.J. Food Center between 1972 and 1978. He leased the business from the John D. Love Oil company, a Gulf distributor, and operated as a consignee of Gulf products on their behalf.
The Application filed by Johnson does not include a demonstration of injury, but includes a statement requesting a refund based on a presumption of injury for 3,000,228 gallons of products that Gulf delivered to G&J Food Center. Johnson, however, did not purchase these products for resale, but sold them on consignment for the John D. Love Oil Company. When Johnson sold products at the specified price, he earned a fixed per gallon fee. Under this arrangement, Johnson was neither a reseller of Gulf products nor a Gulf consignee. He was instead a consignee of the John D. Love Oil Company.
As discussed above, the Gulf Decision establishes presumptions of injury for certain classes of Gulf purchasers and Gulf consignees. The presumptions are based on economic evidence regarding the impact that Gulf overcharges had on the particular classes of applicants. Gulf at 88,737; 88,739. Johnson, however, was neither a purchaser of Gulf products, nor a Gulf consignee, but a consignee of a Gulf distributor. We have no findings about the impact of Gulf overcharges on consignees of distributors. Consequently, it would be inappropriate to apply to Johnson any of the presumptions established in Gulf.
Since Johnson has not shown that he was injured by Gulf's overcharges, either by demonstrating injury or by application of an appropriate presumption, he is not eligible for a refund. Accordingly, the Application for Refund filed by Johnson will be denied. Cf. Texaco Inc./ Atkins' 7-Day Market Stop & Shop, Case No. RF321-18684 (January 25, 1995) (denial of a refund to a consignee of a Texaco distributor).
It Is Therefore Ordered That:
(1) The Application for Refund filed by Samuel V. Johnson for G.J. Food Center (Case No. RF300-13634) is hereby denied.
(2) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: February 3, 1998
(1) A consignee is a firm that distributes products to purchasers under a contractual arrangement with a supplier, by which the supplier retains title to the products and specifies the prices to be paid by the purchaser. The supplier pays the consignee agent a commission based on the volume of products it distributed. See 10 C.F.R. § 212.31 (definition of "consignee agent").