688 F2d 990 El Paso Natural Gas Company v. Federal Energy Regulatory Commission

688 F.2d 990

EL PASO NATURAL GAS COMPANY, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.

No. 81-4295.

United States Court of Appeals,
Fifth Circuit.

Sept. 30, 1982.

Scott D. Fobes, Donald J. MacIver, Jr., El Paso, Tex., Richard C. Green, C. Frank Reifsnyder, Washington, D. C., for petitioner.

Andrea Wolfman, Atty., F.E.R.C., Washington, D. C., for respondent.

Petition for Review of an Order of the Federal Energy Regulatory Commission.

ON PETITION FOR REHEARING

(Opinion May 24, 1982, 5 Cir., 1982, 677 F.2d 22)

Before CLARK, Chief Judge, GARZA and JOHNSON, Circuit Judges.

PER CURIAM:

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1

In its petition for rehearing the Commission asserts we misconceived the nature of the controversy and mistakenly faulted it for failing to make findings of fact in a proceeding in which it merely applied an accounting regulation. The Commission misapprehends our prior opinion. Since it has, we write this brief supplement.

2

The issue raised and dealt with on this appeal is whether the Commission can apply a previously unused interpretation of an accounting rule to establish that El Paso precollected its increased gas costs when, as an accrual basis accounting company, it included accrued gas cost in its Account 191. The Commission held that precollection occurred because the Commission interpreted its accounting rule definition of "costs" to exclude cost accruals (with one exception it arbitrarily created for recent billings). Our holding is that, in the absence of a rulemaking proceeding to support this previously unused interpretation, this interpretation cannot suffice to establish precollection in the face of a record which did not demonstrate that precollection occurred.

The petition for rehearing is

3

DENIED.