Case No. VEE-0009

November 1, 1995

FINAL

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Application for Exception

Name of Petitioner:Dixie Gas & Oil Corporation

Date of Filing:August 10, 1995

Case Number: VEE-0009

On August 10, 1995, Dixie Gas & Oil Corporation (Dixie) of Verona, Virginia, filed an Application for Exception with the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE). In its Application, Dixie requests that it be temporarily relieved of the requirement that it file the Energy Information Administration (EIA) form entitled "Resellers'/Retailers' Monthly Petroleum Product Sales Report" (Form EIA-782B). As explained below, we have determined that exception relief should be granted on a temporary basis.

I. Background

In response to the 1979 oil crisis, Congress enacted the Emergency Energy Conservation Act of 1979 (EECA), Pub. L. No. 96-102, 42 U.S.C. § 8501 et seq. In legislating the EECA, Congress found that "up-to-date and reliable information concerning the supply and demand of gasoline, diesel fuel, and other related data is not available to the President, the Congress, or the public." EECA § 201, 42 U.S.C. § 8501. This lack of information impeded Congress's ability to respond to the oil crisis. Congress, therefore, directed the DOE to establish a Middle Distillate Monitoring Program to monitor the supply and demand of middle distillates in each state at the refining, wholesale and retail levels. EECA § 242, 42 U.S.C. § 8532.

The responsibility for the Middle Distillate Monitoring Program was assumed by the Energy Information Administration (EIA) of the DOE. Under the provisions of Section 205 of the Department of Energy Organization Act, 42 U.S.C. § 7135, the EIA is authorized not only to collect and analyze energy information necessary for the proper functioning of the DOE, but also to require that any energy supplier or major consumer of energy provide such information to the DOE.

When the oil crisis subsided, the DOE thoroughly reviewed its Monitoring Program to determine the least costly method of gathering the information that Congress required. The DOE consulted with state governments, petroleum dealers, and other federal agencies, and held a public hearing. Subsequent to these consultations, the EIA adopted Form EIA-782B, "Monthly No. 2 Distillate Sales Report." In November 1983, the EIA revised this Form to include information concerning sales of finished motor gasoline and residual fuel oil, and renamed the Form "Resellers'/Retailers' Monthly

Petroleum Product Sales Report." In October 1993, the EIA further revised Form EIA-782B in response to the Clean Air Act Amendments of 1990, Pub. L. 101-549. These latest revisions to Form EIA-782B included (i) an expansion of finished motor gasoline reporting categories to include reformulated and oxygenated gasoline, (ii) separation of No. 2 diesel fuel into low and high sulphur content categories, and (iii) the addition of propane to the survey as a reporting product. See Form EIA-782B (10-93).

Form EIA-782B is a mandatory report designed to collect monthly data on sales volumes and unit prices of refined petroleum products from a random sample of resellers and retailers. Information obtained from the respondents constitutes the DOE's primary source of information about petroleum products at the reseller/retailer level. The DOE uses this information to make projections related to energy supplies, demand, and prices. Access to this data is vital to the nation's ability to anticipate and respond to any future energy shortages. See H.R. Rep. No. 93-373, 96th Cong., 1st Sess., reprinted in 1979 U.S. Code Cong. & Admin. News 1764, 1781.

The applicant in this proceeding was selected by the EIA to complete and submit Form EIA-782B to the EIA on a monthly basis beginning with the firm's propane sales in October 1993. The firm is a "certainty" firm which has been completing the form since that date.(1) Firms that operate in more than four states or firms that sell 5 percent or more of a product sales category in any state are considered "certainty" companies. Such companies are not rotated out of the sample of respondents because of their strong impact on the data series and the lack of any suitable replacements.

II. Dixie's Exception Application

Dixie, located in Verona, Virginia, sells motor gasoline, diesel fuel and residential and non-residential propane in Virginia and residential and non-residential propane in West Virginia. Daniel Alexander, Executive Vice President of Dixie, files form EIA-782B for the firm. One staff member is responsible for preparing the form. Mr. Alexander estimates that it takes approximately three hours for the staff member to complete the form each month with the help of the firm's computer program.(2) Mr. Alexander claims that Dixie should be temporarily relieved of the reporting requirement because the firm is undergoing an extensive computer upgrade and complications arising from the upgrade have left the firm with no database with which to operate. As a result, Dixie cannot generate the reports needed to file the form. Mr. Alexander states that it would be impossible for one individual to compile the information without the assistance of the computer program and, even if it were possible, he could not afford to dedicate one staff member to manually compile the information needed to file the form. He expects the upgrade to be completed by January 1996. Accordingly, Dixie asks that it be temporarily relieved of the filing requirement for Form EIA-782B until February 1996.

III. Analysis

The OHA has the authority to grant exception relief to alleviate or prevent serious hardship or gross inequity. 10 C.F.R. § 1003.20. See also Exceptions and Appeals Guidelines, 6 Fed. Energy Guidelines ¶ 80,003. In previous cases involving requests for exception relief, we have recognized that mandatory reporting requirements cause some inconvenience to respondents. Since all reporting firms are burdened by the requirement, we have held that exception relief is appropriate only when a firm can demonstrate that it is adversely affected by the reporting requirement in a way that differs significantly from similar reporting firms.

After considering Dixie's application, we have determined that temporary exception relief is warranted. Dixie has persuaded us that, given the firm's current circumstances, its capability of efficiently acquiring the data necessary for completing Form EIA-782B has been severely impeded. For Dixie to prepare the form without the aid of its computer system would excessively burden the one employee responsible for filing the form. In past cases, we have granted temporary relief to firms experiencing similar circumstances that disrupt daily activities. See e.g., Meier Oil Serv., 14 DOE ¶ 81,004 (1986) (three months relief granted when disruptions caused by the installation of a new computer system left the firm's records inaccessible).

In addition, when evaluating an applicant's request for exception relief, we consider whether the difficulty in complying with the reporting requirement is outweighed by the benefits to the nation in obtaining the required data. See Lockheed Air Terminal, 15 DOE ¶ 81,010 (1986); Champlain Oil Co., 14 DOE ¶ 81,022 (1986); Three L Inc., 12 DOE ¶ 81,014 (1984). Exception relief from reporting requirements has been approved in the past only upon a showing that, because of unusual circumstances, the reporting requirements impose an inordinate burden on the applicant or impede the applicant's operations to such an extent that a serious financial hardship or gross inequity exists. See, e.g., Eastern Petroleum Corp., 14 DOE ¶ 81,011 (1986); Welsch Oil Co., 12 DOE ¶ 81,011 (1984); Pure Oil Co., 8 DOE ¶ 81,019 (1981).

Previously, we have balanced these competing interests almost exclusively in cases dealing with small companies which could be rotated out of the survey sample group. In such cases, the balancing of interests took into account that the data provided by the firm requesting exception relief was not irreplaceable; that data from other firms could be used to maintain the validity of the survey's statistics. However, the balance of interests changes when the firm requesting exception relief is a "certainty" company, such as Dixie. Such a firm is vital to the sample group; should its figures not be included in the overall survey results, those results might not accurately reflect the market. We recognize that Dixie is suffering a serious hardship at this time. We will therefore approve exception relief for four months. The temporary exception period will allow Dixie to complete its computer upgrade.

This Decision is being issued under the new OHA procedural regulations that became effective April 20, 1995. 10 C.F.R. Part 1003, 60 Fed. Reg. 15004 (March 21, 1995). Accordingly, this is a final Decision and Order, see 10 C.F.R. § 1003.26, and exception relief is effective immediately.

It Is Therefore Ordered That:

(1) The Application for Exception filed by Dixie Gas & Oil Corporation on August 10, 1995 is hereby granted as set forth in Paragraph 2.

(2) Dixie Gas & Oil Corporation shall be removed from the list of firms required to submit data on Form EIA-782B to the Energy Information Administration of the Department of Energy from October 1995 through January 1996.

(3) This is a Final Order of the Department of Energy.

George B. Breznay

Director

Office of Hearings and Appeals

Date: November 1, 1995

(1)/See Memorandum of August 23, 1995 voice mail message from Sherry Beri of EIA to OHA Staff Analyst Amani L. Roland.

(2)2/ See Memorandum of September 22, 1995 telephone conversation between Daniel Alexander, Executive Vice President of Dixie, and OHA Staff Analyst Amani L. Roland