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language of 46.0 supports the inclusion of Clajon’s gathering
pipelines within that asset class.
Secondly, we do not agree with the conclusion of the Tenth
Circuit Court of Appeals that FERC’s distinction between
gathering and transmission lines necessarily establishes that
FERC considers gathering systems as related to production.14 See
Duke Energy Natural Gas Corp. v. Commissioner, supra at 1262. In
section 1(b) of the Natural Gas Act of 1938, Pub. L. 688, 52
Stat. 821, currently codified at 15 U.S.C. sec. 717(b) (2000)
(NGA), it is provided that the NGA “shall apply to the
transportation of natural gas in interstate commerce * * * but
shall not apply to * * * the production or gathering of natural
gas.” The quoted language indicates that Congress considered
“gathering” to be separate and distinct from “production”.
Indeed, had it considered “gathering” to be included within the
term “production”, Congress would not have found it necessary to
separately exclude both from Federal regulation. Moreover, that
FERC does not consider gathering and transportation (of gas) to
be mutually exclusive terms is illustrated by another decision of
14 Although we have found that petitioner’s gathering
pipelines are ineligible for inclusion within 13.2, a finding
that such pipelines are primarily production related might
justify their classification (in the hands of a nonproducer) as
“Personal Property With No Class Life” entitled to the same
7-year recovery period. See Rev. Proc. 87-56, 1987-2 C.B. 674,
687. Petitioner has not on brief argued for such classification.
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