APRIL 23, 2003
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Application for Refund
Name of Firm: Anchor Gasoline Corporation/
Cameron Bayou Service Station
Date of Filing: September 14, 1993
Case Number: RF346-00097
This proceeding involves $3,600,000, and accrued interest, which Anchor Gasoline Corporation (Anchor) remitted to the Department of Energy under the terms of the September 22, 1988 Consent Order entered into by DOE and Anchor. (1) The Consent Order settled, except for those matters specifically excluded therein, all civil and administrative claims and liabilities regarding Anchors compliance with the Federal Petroleum Price and Allocation Regulations during the period August 19, 1973, through January 27, 1981 (the consent order period). On April 2, 1992, the Office of Hearings and Appeals of the DOE instituted special refund procedures for the distribution of those funds. See Anchor Gasoline Corp., 22 DOE ¶ 85,071 (1992) (Anchor). The special refund procedures allow purchasers of Anchor products which were regulated during the period of price controls (e.g., motor gasoline, propane, middle distillates, natural gas liquids, and natural gas liquid products) to file Applications for Refund from the Anchor consent order fund. (2) Refunds can be sought only for regulated products purchased between August 19, 1973, and January 27, 1981, the end of the period of petroleum price controls. See Anchor at 88,215. This Decision and Order considers an Application for Refund filed by Cameron Bayou Service Station (Applicant).
Evaluating applications in this proceeding requires that we consider the economic harm or injury suffered by that applicant. Id. at 88,216; see also Sid Richardson Carbon & Gasoline Co., 12 DOE ¶ 85,054 (1984). Firms that were not injured by Anchors pricing practices are ineligible for a refund. Firms that purchased Anchor products either for consumption or for resale are presumed to have been injured, and are eligible for refunds in this proceeding. However, consignee agents did not purchase Anchor products and are presumed to have experienced no injury as a result of Anchors alleged violations. See Anchor at 88,218. Consignee agents sold products pursuant to agreements whereby the supplier established the price to be charged by the consignee and compensated the consignee with a fixed commission based upon the volume of products that it sold. Because they could not purchase or adjust the selling price of these products, consignees could not absorb any overcharges. A consignee may rebut the presumption of non-injury by demonstrating, e.g., that its sales volumes and corresponding commission revenues declined due to the alleged uncompetitiveness of Anchors pricing practices. See Gulf Oil Corp./C.F. Canter Oil Co., 13 DOE ¶ 85,388 at 88,962 (1986).
After initial inspection of all Applications for Refund filed in the Anchor proceeding, it appeared that many applicants were consignee agents. The information we have received from Anchor/Canal officials indicates that during the refund period Anchor/Canal retained legal title of the refined petroleum products sold by their retailers and that it set the selling price for these products. Further, Anchor/Canal outlet operators were paid on a per gallon basis. The information submitted by the Applicant in its application is insufficient to establish that it obtained legal title to the Anchor/Canal gasoline it retailed. Consequently, given the evidence before us, we find that the Applicant was a consignee of Anchor/Canal. See 10 C.F.R. § 212.31 (definition of "Consignee Agent").
In establishing the Anchor proceeding, we stated that we would presume that consignees of Anchor/Canal products were not injured by the firm's alleged pricing policies since consignees received a fixed commission based upon the volume of products it sold and never took legal title to the petroleum products or set the selling price of the products. See Anchor, 22 DOE at 88,218. Therefore, we will deny the Applicants Application for Refund.
It Is Therefore Ordered That:
(1) The Application for Refund filed by Cameron Bayou Service Station, Case No. RF346-97, is hereby denied.
(2) This is a final Decision and Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: April 23, 2003
(1)Under the terms of the Consent Order, Anchor remitted $7,775,000 to the DOE. In addition, Anchor was required to deposit into the escrow account a percentage of its profits each year until 1994, bringing the total Consent Order funds to a minimum of $9,000,000. Our calculations for this proceeding are based on the assumption that the total refunds remitted will be $9,000,000. These funds have then been divided between Anchors alleged violations regarding refined product sales and crude oil sales. The crude oil portion the Consent Order fund ($5,400,000) will be distributed in accordance with the procedures established in Anchor Gasoline Corp., 22 DOE ¶ 85,071 (1992).
(2)For purposes of this proceeding, any reference to Anchor includes Anchor Gasoline Corporation and its wholly-owned subsidiary, Canal Refining Company (Canal). See Anchor at 88,210. In this Decision we will refer to Anchor and Canal as Anchor/Canal.