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New England Power Company, Petitioner, v. Federal Power Commission, Respondent.independent Natural Gas Association of America, Petitioner, v. Federal Power Commission, Respondent.tennessee Gas Pipeline Company, a Division of Tenneco Inc., Petitioner, v. Federal Power Commission, Respondent
United States Court of Appeals, District of Columbia Circuit. - 467 F.2d 425
Argued April 20, 1972.Decided Aug. 15, 1972.Rehearing Denied Sept. 25, 1972
Mr. William J. Madden, Jr., Washington, D. C., with whom Mr. Thomas M. Debevoise, Washington, D. C. was on the brief, for petitioner in No. 71-1439.
Mr. Stanley M. Morley, Washington, D. C., with whom Messrs. Francis H. Caskin, Edward A. Caine and Jerome J. McGrath, Washington, D. C., were on the brief, for petitioner in No. 71-1539.
Mr. Melvin Richter, Washington, D. C., with whom Mr. Harry S. Welch, Houston, Tex., was on the brief, for petitioner in No. 71-1555.
Miss Joan E. Heimbigner, Atty., F.P.C., for respondent. Messrs. Gordon Gooch, Gen. Counsel, F.P.C., Leo E. Forquer, Sol., J. Richard Tiano, First Asst. Sol., and William P. Diener, Asst. Sol., F.P.C., were on the brief, for respondent.
Before TAMM, ROBB and WILKEY, Circuit Judges.
TAMM, Circuit Judge:
In this case several representative of the natural gas pipeline and electric industry petition the court to review and set aside Federal Power Commission Order No. 427 revising existing fee schedules for filing applications under the Natural Gas Act and Federal Power Act and assessing annually the costs of administering these programs against jurisdictional companies in accordance with formulae set forth in the order. Petitioners attack both the Commission's authority to impose the fees in question and the methods employed by the Commission in allocating the fees and charges. Since it is our view that the Commission lacked statutory authority to act, we pretermit consideration of the latter issue and accordingly grant petitioners the relief they seek.
On March 18, 1971, the Commission issued Order No. 427, which (a) revised a schedule of filing fees originally promulgated in a 1966 rulemaking proceeding1 for certain applications by natural gas companies pursuant to the Natural Gas Act;2 (b) established for the first time a schedule of filing fees for various applications and rate schedule filings made by electric utilities pursuant to Parts II and III of the Federal Power Act;3 and (c) established, also for the first time, a system whereby the costs of administering Parts II and III of the Federal Power Act and the Natural Gas Act, not met by filing fees, will be annually assessed against jurisdictional companies in accordance with formulae set forth in the order. Petitioners do not complain of the increased filing fees under the Natural Gas Act nor of the new fees under the Federal Power Act, but, rather, the nub of their complaint goes to the annual charges assessed. We therefore must examine them in greater detail.
The Commission imposed two types of annual charges upon pipeline companies. The first type, denominated an "annual general charge," imposed only upon Class A and Class B pipeline companies,4 is computed as follows: Initially, the Commission determines the cost of administering its pipeline programs, subtracting therefrom the revenues derived from its first flat filing and pipeline certificate fees. The resultant net cost is recorded against a particular Class A or B pipeline based upon the ratio of its total jurisdictional gas deliveries to the total jurisdictional gas deliveries of all Class A and B pipelines. The second annual charge, denominated the "annual reserves added assessment," is imposed upon pipeline companies required to file an Annual Report-Total Gas Supply on FPC Form No. 15. The assessment is one-tenth of a mill for each Mcf of new reserves certificated for a particular calendar year as shown on that particular pipeline's Form No. 15.
The annual charge imposed upon jurisdictional electric utilities is computed as follows: A determination is made for each year of the administration costs of the Commission's public utility regulatory programs (other than those associated with coordination and reliability) from which is deducted the costs associated with services rendered to or for the benefit of electric systems which are not public utilities as defined in the Federal Power Act and the amounts received during the same period as filing fees. The "adjusted cost" is then assessed against each public utility in the proportion that the sum of the gross jurisdictional kilowatt hours it sells at wholesale and those it delivers under interchange power agreements bears to the sum of the gross jurisdictional sales by all public utilities. Furthermore, a determination is made of the Commission's cost of administration associated with its coordination and reliability programs which is then assessed against each public utility in the proportion that the gross revenues of such company bears to the sum of the gross electric revenues of all public utilities.
The authority upon which the Commission relied in its order assessing the foregoing annual charges and fees was Title V of the Independent Offices Appropriation Act of 1952.5 In addition, the Commission now asserts before this court for the first time that it also bases its authority to act upon Section 16 of the Natural Gas Act6 and Section 309 of the Federal Power Act.7 We now turn to an examination of these statutes, the appropriate legislative history, the relevant administrative interpretations, and comparable statutes.
II. Title V of the Independent Offices Appropriation Act of
1952
The Commission primarily bases its authority to impose the annual general charge upon Title V of the Independent Offices Appropriation Act of 1952, which provides in pertinent part:
It is the sense of the Congress that any work, service, publication, report, document, benefit, privilege, authority, use, franchise, license, permit, certificate, registration, or similar thing of value or utility performed, furnished, provided, granted, prepared, or issued by any Federal agency . . . to or for any person . . . shall be self-sustaining to the full extent possible, and the head of each Federal agency is authorized by regulation (which, in the case of agencies in the executive branch, shall be as uniform as practicable and subject to such policies as the President may prescribe) to prescribe therefor such fee, charge, or price, if any, as he shall determine . . . to be fair and equitable taking into consideration direct and indirect cost to the Government, value to the recipient, public policy or interest served, and other pertinent facts . . . .
The legislative history behind this proviso, a "rider" to the appropriations bill, is sparse, but its purpose was made quite clear by the Report of the House Committee on Appropriations which we now set forth:8
The Committee is concerned that the Government is not receiving full return from many of the services which it renders to special beneficiaries. Many fees for such services are specifically fixed by law, and in some cases, it is specifically provided that no fees shall be charged. In other cases, however, no fees are charged even though the charging of fees is not prohibited; and in still others, fees are charged upon the basis of formulae prescribed in law, but the application of the formulae needs to be re-examined to bring the actual charges into line with present-day costs and other related considerations.
16 U.S.C. Sec. 824 (1970) et seq
Interstate natural gas pipeline companies are classified for accounting and reporting purposes in the Commission's Uniform System of Accounts according to the amount of their annual gas operating revenues as follows:
Class A-$2,500,000 or more Class B-$1,000,000 to $2,500,000 Class C-$150,000 to $1,000,000 Class D-$25,000 to $150,000
65 Stat. 290, 31 U.S.C. Sec. 483a (1970)
15 U.S.C. Sec. 717o (1970)
16 U.S.C. Sec. 825h (1970)
H.R.Rep.No.384, 82nd Cong., 1st Sess. 2-3 (1952)
Petitioners rely upon Aeronautical Radio, Inc. v. United States, 335 F.2d 304 (7th Cir. 1964), cert. denied, 379 U.S. 966, 85 S.Ct. 658, 13 L.Ed.2d 559 (1965), where the court upheld nominal filing fees upon certain types of radio license applications. However, in that case, unlike the instant one, the court was dealing with specific applications submitted to the Commission which conferred specific benefits upon the applicant
See Atlantic Refining Co. v. Public Service Commission of New York, 360 U.S. 378, 388-389, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959); Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 610-612, 64 S.Ct. 281, 88 L.Ed. 333 (1944)
See note 1, supra
30 Fed.Reg. 12077 (September 15, 1965)
The Commission shall have power to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of this chapter. Among other things, such rules and regulations may define accounting, technical, and trade terms used in this chapter; and may prescribe the form or forms of all statements, declarations, applications, and reports to be filed with the Commission, the information which they shall contain, and the time within which they shall be filed. Unless a different date is specified therein, rules and regulations of the Commission shall be effective thirty days after publication in the manner which the Commission shall prescribe. Orders of the Commission shall be effective on the date and in the manner which the Commission shall prescribe. For the purposes of its rules and regulations, the Commission may classify persons and matters within its jurisdiction and prescribe different requirements for different classes of persons or matters. All rules and regulations of the Commission shall be filed with its secretary and shall be kept open in convenient form for public inspection and examination during reasonable business hours
15 U.S.C. Sec. 717o (1970).
The Commission shall have power to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of this chapter. Among other things, such rules and regulations may define accounting, technical, and trade terms used in this chapter; and may prescribe the form or forms of all statements, declarations, applications, and reports to be filed with the Commission, and information which they shall contain, and the time within which they shall be filed. Unless a different date is specified therein, rules and regulations of the Commission shall be effective thirty days after publication in the manner which the Commission shall prescribe. Orders of the Commission shall be effective on the date and in the manner which the Commission shall prescribe. For the purposes of its rules and regulations, the Commission may classify persons and matters within its jurisdiction and prescribe different requirements for different classes of persons or matters. All rules and regulations of the Commission shall be filed with its secretary and shall be kept open in convenient form for public inspection and examination during reasonable business hours
16 U.S.C. Sec. 825h (1970).
The Commission's order does mention sections 16 and 309, however, not as substantive authority to prescribe fees, but merely as a point of reference to the source of the Commission's power to issue regulations implementing the basic grant of authority to charge the fees cataloged in Title V
Braniff Airways, Inc. v. Civil Aeronautics Board, 126 U.S.App.D.C. 399, 411, 379 F.2d 453, 465 (1967)
Public Service Commission of New York v. Federal Power Commission, 117 U.S.App.D.C. 195, 198-199, 327 F.2d 893, 896-897 (1964)
Niagara Mohawk Power Corp. v. Federal Power Commission, 126 U.S.App.D.C. 376, 381, 379 F.2d 153, 158 (1967) (footnote omitted)
See also Mesa Petroleum Corp. v. Federal Power Commission, 441 F.2d 182 (5th Cir. 1971)
16 U.S.C. Sec. 803(e) (1970). See also 16 U.S.C. Sec. 803(f) (1970)
Subcomm. on Intergovernmental Relations of the Senate Comm. on Operations, 90th Cong., 1st Sess., State Utility Commissions 22 (Comm. Print September 11, 1967)