Ben Bolt Gathering Company v. Federal Power Commission, 19587.
| Decision Date | 16 October 1963 |
| Docket Number | No. 19587.,19587. |
| Parties | BEN BOLT GATHERING COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bradford Ross, Sherman S. Poland, Lewis Carroll, Ross, Marsh & Foster, Washington, D. C., for Ben Bolt Gathering Co.
Howard E. Wahrenbrock, Sol., Richard A. Solomon, Gen. Counsel, Milton J. Grossman, Atty., Federal Power Comm., Washington, D. C., Robert L. Russell, Asst. Gen. Counsel, Peter H. Schiff, Attorney, Federal Power Commission, Washington, D. C., for respondent.
Before RIVES and CAMERON, Circuit Judges, and BOOTLE, District Judge.
Ben Bolt Gathering Company (here-after Ben Bolt) filed with the Federal Power Commission (hereafter Commission) an application for a certificate of public convenience and necessity, pursuant to Section 7(c) of the Natural Gas Act, 15 U.S.C.A. § 717f(c),1 and to the provisions of Sections 154.91 and 157.23-157.28 of the Commission's regulations under the Act.2 Pending determination of its application, Ben Bolt also requested "a temporary certificate * * * under applicable regulations for the purpose of permitting Ben Bolt to construct the necessary facilities * *." The temporary authorization issued to Ben Bolt provided that it was "* * * without prejudice to such final disposition of the application for certificate as the record may require * * *."
Ben Bolt's application was consolidated for hearing with the applications of two of its suppliers, East White Point Gathering Company and Engeo Gathering Company. Applications of other of Ben Bolt's suppliers had previously been granted.
The Examiner noted that the principal issue concerned prices and cost of service data to support the prices. He found that Ben Bolt had constructed and was operating under the temporary authorization approximately 26 miles of pipe line from certain gas fields to a gasoline plant where the gas was delivered to Natural Gas Pipe Line Company of America (hereafter Natural), an interstate pipe-line company, and was operating about 23 miles of existing natural gas facilities to move the gas from other fields for delivery to Natural. Ben Bolt's contract with Natural provided for a delivered price of 20 cents per Mcf. The Examiner concluded that Ben Bolt had justified the proposed 20-cent price, and, subject to review by the Commission, ordered certificates of public convenience and necessity to be issued to Ben Bolt and its two suppliers.
The Examiner found that the applicants, including Ben Bolt, are "independent producers" under the definition contained in Section 154.91 of the Commission's regulations, but that Ben Bolt should also be classified as a Class C pipe-line company for the purpose of filing accounting reports with the Commission. Ben Bolt filed exceptions to the Examiner's decision. The Commission modified the Examiner's decision by reversing his finding that Ben Bolt is an independent producer, and to the contrary found that Ben Bolt should be classified as a Class C pipe-line company. The regulations governing pipe-line companies are more complex and exacting than those governing independent producers.
Ben Bolt applied for a rehearing, which the Commission denied.
On this petition for review under Section 19(b) of the Natural Gas Act, 15 U.S.C.A. § 717r(b), Ben Bolt insists that its classification as a pipe-line company is erroneous and that it is an "independent producer" engaged in the "gathering" of natural gas. Ben Bolt further insists that its classification as a pipe-line company is illegal as a matter of procedure, that the Commission determined its status without according it notice or an opportunity to be heard and without adducing the necessary evidence or making the necessary findings.
At the time the Commission classified Ben Bolt, Section 154.91(a) of its Natural Gas Regulations defined "Independent Producer" as follows:
3
The first requirement to be an "independent producer" is that the person "is engaged in the production or gathering of natural gas." Ben Bolt has never claimed to be engaged in the production, but its claim is that it is engaged in the gathering of natural gas.
The Commission found that Ben Bolt...
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