concurring.
I concur in the holding and generally in Judge Christensen’s opinion, although in my opinion the uncertain and confusing interpretations of § 212.72 by the DOE prior to the adoption of Rule 1975-15 raise a close question with respect to the retroactive application of the Rule under our holding in Standard Oil Company v. DOE, 596 F.2d 1029 (Em.App.1978). I conclude, however, that Pennzoil’s own conduct, including its failure to secure a timely, official agency interpretation of § 212.72 and its inconsistent treatment of its production from the Tinsley and Walker Creek fields, precludes its recovery in this action.
I agree with the analysis of Standard Oil, supra, as set forth in the majority opinion and in Sauder v. DOE, 648 F.2d 1341 (Em. App.1981), and particularly that there is no merit in the contention that even though the DOE’s interpretation is reasonable, it cannot be applied retroactively unless it is “compelled”. We concluded in Standard Oil that the regulations were ambiguous; that there was confusion and uncertainty among both FEA officials and the refiners; that the DOE’s interpretation was not “contemporaneous” with the relevant period; and that while the FEA’s rule was a reasonable interpretation it was not “compelled”. Accordingly it was then necessary to determine whether the subsequent rulemaking procedures could be given retroactive effect “under the factual situation [there] presented”.1 The same determination must be made here.
It is true that some of the agency’s interpretations of § 212.72 support the 1975 ruling and the interpretation found implicit in the court’s opinion. Most significant is a formal agency interpretation issued by the General Counsel of the FEA expressly supporting an “aggregate treatment” interpretation of § 212.72.2 The other four interpretations cited in the opinion, n. 11 supra, deal with units formed before 1972, however, and for that reason are of limited value with respect to post 1972 unitization.3
On the other hand, the OEA issued two decisions in March and May of 1975 which give the strong if not compelling impression that “aggregate treatment” would not be allowed under § 212.72. Sun. Oil Co., supra, clearly contemplates computation of production on an individual property basis.4 Empire Drilling Co., supra, expressly requires individual treatment.5 Although exception relief was denied in each case because of the applicants’ failure to prove gross inequity or serious hardship, the text of those decisions would, in my opinion, reasonably lead a producer to believe that *181tile DOE interpreted § 212.72 to require computation of a unit’s production on a property by property basis.
Pennzoil also presented evidence that it was advised by FEO officials in Houston, Texas, that for units formed after 1972, certification as to new and released oil would continue to be conducted on an individual property basis. Pltf. Ex. 70; Pltf. Ex. 150. That advice was apparently confirmed shortly thereafter by James Lang-don, then Director of the Office of Regulatory Review of the FEO. Def. Ex. 41. There is also evidence that Langdon gave similar advice to other producers. Affidavit of Ben C. Newman (R. 1416-17). In addition, on February 12, 1975 Langdon presented a paper at an Oil and Gas Institute in which he stated that a “property by property” treatment was a possible interpretation of § 212.72. Pltf. Ex. 115.
On December 30, 1974, the National Office of Compliance and Enforcement of the FEA distributed a manual to be used in agency investigations which expressly allowed producers the option of applying the regulations on a lease-by-lease basis even in a unitized field. Pltf. Ex. 109-A.
Affidavits of former DOE officers, now affiliated with oil companies, state that Ruling 1975-15 is inconsistent with the original agency interpretation of § 212.72. Although the recollections of agency staff are not entitled to great weight in construing statutes or divining the meaning of a regulation, they may be considered where, as here, “the reviewing court does not have the benefit of a detailed administrative record developed in the course of normal rule-making procedures.” Nader v. Sawhill, 514 F.2d 1064, 1067 n. 6 (Em.App.1975); Standard Oil, 596 F.2d at 1045, 1053-54; Getty Oil Co. v. DOE, 581 F.2d 838 (Em.App.1978), cert. denied, 440 U.S. 912, 99 S.Ct. 1226, 59 L.Ed.2d 461 (1979); Pacific Coast Meat Jobbers Ass’n, Inc. v. Cost of Living Council, 481 F.2d 1388, 1390 (Em.App.1973).
The contemporaneous construction of § 212.72, as revealed in these official infer-pretations, OEA decisions, agency forms and manuals, informal telephonic communications, papers presented to industrial conferences, affidavits of former agency personnel, and post-1975 regulatory changes does not, in my opinion provide “almost a bright line of agency explanation ... upon the particular principle in this case.” In fact, the DOE appears to have made little effort to insure that the industry was receiving a clear and consistent interpretation of § 212.72.
As in Standard Oil, the regulations here were ambiguous and there was uncertainty and confusion among both the DOE and the producers with respect to their interpretation. I cannot find, however, that Pennzoil was entitled to rely upon the interpretation for which it contends. In Standard Oil, the only public pronouncements by DOE officials during the relevant period were contrary to the interpretation for which the DOE sought retroactive application. (See n. 1) Here Pennzoil was fully aware of the uncertainty, confusion, and different interpretations but made no reasonable effort to obtain a ruling from the General Counsel of the DOE.
A lawyer of Pennzoil was advised by another attorney by letter dated July 12, 1974 (Pltf. Ex. 71), not long after the establishment of the Walker Creek Field, that the “problem had been raised previously and is currently under consideration by the General Counsel’s Office....” As Judge Christensen noted, this seems both an invitation to seek advice and a warning that if it did not do so it was proceeding at its own peril. N. 15, supra. On June 14, 1974, Pennzoil had written to Cities Service Oil Company, regarding pricing of oil from the Walker Creek, unit, in which it stated that it “expect[ed] a ruling from the Federal Energy Office in the reasonably near future.... ” Yet there is no evidence that this ruling was ever requested or received by Pennzoil. *182Whether the result of negligence or an intentional decision, Pennzoil knowingly proceeded at its own peril when it relied on the conflicting informal opinions it received as to the proper interpretation of § 212.72. For that reason I concur in the court’s decision.6
. It was undisputed in Standard Oil that “during the relevant period the only public pronouncements were made by officials of the Office of Compliance and the FEA auditors and were contrary to the interpretation set forth in” the rule in question. 596 F.2d at 1056.
. Interpretation No. 1975-4, issued Feb. 14, 1975; later published at 42 Fed.Reg. 23726 (May 18, 1977).
. Although issued to different companies (but not to Pennzoil) in 1974 and early 1975, none of these Interpretations was published in the Federal Register until March, 1977.
. “Since crude oil was produced and sold from 75 different properties in the ... Field in 1972, current crude oil production and sales from any given property must exceed the production from that property in the corresponding month of 1972 .... before it can be sold at exempt prices.” Sun Oil Co., 2 FEA ¶ 83,075, (Mar. 21, 1975).
. “Under the provisions of 10 C.F.R., part 212, Subpart D, all current crude oil production and sales from each of the nine Danberry Unit properties which does not exceed the production from that property in the corresponding month of 1972 ... is subject to the ceiling prices established under 10 C.F.R., 212.73” Empire Drilling Co., 2 FEA ¶ 83,142 (May 9, 1975), aff’d 2 FEA ¶ 80,876 (Sept. 2, 1975).
. I do not believe that Grigsby dictates the outcome of the present case. Its concept of “right to produce” does not answer the question presented here, and the two cases are factually distinguishable. Moreover, the Grigsby court expressly declined to consider the issue of the validity of the promulgation of Ruling 1975-15. 585 F.2d at 1084 n.1.