Order on Clarification and Rehearing, 14235-14239 [E7-5497]
Download as PDF
14235
Rules and Regulations
Federal Register
Vol. 72, No. 58
Tuesday, March 27, 2007
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
7 CFR Part 301
[Docket No. APHIS–2006–0171]
Gypsy Moth Generally Infested Areas;
Addition of Areas in Virginia
Animal and Plant Health
Inspection Service, USDA.
ACTION: Affirmation of interim rule as
final rule.
AGENCY:
SUMMARY: We are adopting as a final
rule, without change, an interim rule
that amended the regulations by adding
the Cities of Roanoke and Salem and the
Counties of Craig, Giles, and Roanoke in
Virginia to the list of generally infested
areas based on the detection of
infestations of gypsy moth in those
areas. As a result of the interim rule, the
interstate movement of regulated
articles from those areas is restricted.
The interim rule was necessary to
prevent the spread of gypsy moth to
noninfested areas of the United States.
DATES: Effective on March 27, 2007, we
are adopting as a final rule the interim
rule published at 71 FR 66829–66830 on
November 17, 2006.
FOR FURTHER INFORMATION CONTACT: Dr.
Weyman Fussell, Program Manager, Pest
Detection and Management Programs,
PPQ, APHIS, 4700 River Road Unit 134,
Riverdale, MD 20737–1231; (301) 734–
5705.
SUPPLEMENTARY INFORMATION:
articles from generally infested areas to
prevent the artificial spread of the gypsy
moth.
In an interim rule 1 effective and
published in the Federal Register on
November 17, 2006 (71 FR 66829–
66830, Docket No. APHIS–2006–0171),
we amended the regulations by adding
the Cities of Roanoke and Salem and the
Counties of Craig, Giles, and Roanoke in
Virginia to the list of generally infested
areas in § 301.45–3.
Comments on the interim rule were
required to be received on or before
January 16, 2007. We did not receive
any comments. Therefore, for the
reasons given in the interim rule, we are
adopting the interim rule as a final rule.
This action also affirms the
information contained in the interim
rule concerning Executive Order 12866
and the Regulatory Flexibility Act,
Executive Orders 12372 and 12988, and
the Paperwork Reduction Act.
Further, for this action, the Office of
Management and Budget has waived its
review under Executive Order 12866.
List of Subjects in 7 CFR Part 301
Agricultural commodities, Plant
diseases and pests, Quarantine,
Reporting and recordkeeping
requirements, Transportation.
PART 301—DOMESTIC QUARANTINE
NOTICES
Accordingly, we are adopting as a
final rule, without change, the interim
rule that amended 7 CFR part 301 and
that was published at 71 FR 66829–
66830 on November 17, 2006.
I
Done in Washington, DC, this 21st day of
March 2007.
Kevin Shea,
Acting Administrator, Animal and Plant
Health Inspection Service.
[FR Doc. E7–5568 Filed 3–26–07; 8:45 am]
BILLING CODE 3410–34–P
rmajette on PROD1PC67 with RULES
Background
The gypsy moth, Lymantria dispar
(Linnaeus), is a destructive pest of forest
and shade trees. The gypsy moth
regulations (contained in 7 CFR 301.45
through 301.45–12 and referred to
below as the regulations) restrict the
interstate movement of regulated
VerDate Aug<31>2005
12:37 Mar 26, 2007
Jkt 211001
1 To view the interim rule, go to https://
www.regulations.gov, click on the ‘‘Advanced
Search’’ tab, and select ‘‘Docket Search.’’ In the
Docket ID field, enter APHIS–2006–0171, then click
‘‘Submit.’’ Clicking on the Docket ID link in the
search results page will produce a list of all
documents in the docket.
PO 00000
Frm 00001
Fmt 4700
Sfmt 4700
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Part 358
[Docket No. RM07–6–001; Order No. 690–
A]
Order on Clarification and Rehearing
Issued March 21, 2007.
Federal Energy Regulatory
Commission.
ACTION: Final rule.
AGENCY:
SUMMARY: This order responds to four
requests for clarification or, in the
alternative, rehearing of the interim rule
which the Federal Energy Regulatory
Commission issued on January 9, 2007.
The Commission issued the interim rule
in response to the decision of the United
States Court of Appeals for the District
of Columbia vacating and remanding the
standards of conduct rule, Order No.
2004, as applicable to interstate natural
gas pipelines, in National Fuel Gas
Supply Corporation v. FERC, 468 F.3d
831 (D.C. Cir. 2006).
In this order, the Commission grants
clarification that the standards of
conduct for natural gas transmission
providers under the interim rule apply
only to natural gas transmission
providers that are affiliated with a
marketing or brokering entity that
conducts transportation transactions on
such natural gas transmission provider’s
pipeline. The Commission also grants
clarification that the definition for a
marketing or brokering entity for a
natural gas transmission provider is
identical to the definition under the preOrder No. 2004 standards of conduct.
With regards to the other issues for
which clarification or rehearing is
sought, the Commission will defer
consideration of these matters in this
proceeding and address them
contemporaneously with the rulemaking
proceeding in Docket No. RM07–1–000.
EFFECTIVE DATE: This rule is effective on
March 27, 2007.
FOR FURTHER INFORMATION CONTACT:
Stuart Fischer, Office of Enforcement,
Federal Energy Regulatory
Commission, 888 First Street, NE.,
Washington, DC 20426, Telephone:
(202) 502–8517, E-mail:
stuart.fischer@ferc.gov.
E:\FR\FM\27MRR1.SGM
27MRR1
14236
Federal Register / Vol. 72, No. 58 / Tuesday, March 27, 2007 / Rules and Regulations
Deme Anas, Office of Enforcement,
Federal Energy Regulatory
Commission, 888 First Street, NE.,
Washington, DC 20426, Telephone:
(202) 502–8178, E-mail:
demetra.anas@ferc.gov.
SUPPLEMENTARY INFORMATION: Before
Commissioners: Joseph T. Kelliher,
Chairman; Suedeen G. Kelly, Marc
Spitzer, Philip D. Moeller, and Jon
Wellinghoff.
Standards of Conduct for Transmission
Providers
I. Introduction
1. On January 9, 2007, the
Commission issued an interim rule
promulgating interim standards of
conduct regulations that govern the
relationship between natural gas
transmission providers and their
marketing affiliates.1 The Commission
issued the interim rule to respond to the
decision of the United States Court of
Appeals for the District of Columbia
concerning the Standards of Conduct for
Transmission Providers under Order
No. 2004.2 The purpose of the interim
rule was to repromulgate the standards
of conduct not challenged in the
National Fuel appeal in the interim
while the Commission considered how
to respond to the court’s decision on a
permanent basis. Subsequently, on
January 18, 2007, the Commission
issued a Notice of Proposed Rulemaking
(NOPR) in which the Commission
proposed making the provisions of the
interim rule permanent, as well as
proposing other changes to the
standards of conduct for natural gas and
electric transmission providers.3 The
Commission invited comments on the
proposals in the NOPR, and comments
are due on March 30, 2007.4
rmajette on PROD1PC67 with RULES
1 Standards
of Conduct for Transmission
Providers, Order No. 690, 72 FR 2427 (Jan. 19,
2007); FERC Stats. & Regs. ¶ 31,327 (2007). (Interim
Rule). The Commission issued an errata notice on
January 22, 2007 that made corrections to paragraph
18 and the regulatory text.
2 Standards of Conduct for Transmission
Providers, Order No. 2004, FERC Stats. & Regs.,
Regulations Preambles ¶ 31,155 (2003), order on
reh’g, Order No. 2004–A, III FERC Stats. & Regs.
¶ 31,161 (2004), 107 FERC ¶ 61,032 (2004), order on
reh’g, Order No. 2004–B, III FERC Stats. & Regs.
¶ 31,166 (2004), 108 FERC ¶ 61,118 (2004), order on
reh’g, Order No. 2004–C, 109 FERC ¶ 61,325 (2004),
order on reh’g, Order No. 2004–D, 110 FERC
¶ 61,320 (2005), vacated and remanded as it applies
to natural gas pipelines, National Fuel Gas Supply
Corporation v. FERC, 468 F.3d 831 (D.C. Cir. 2006)
(National Fuel).
3 Standards of Conduct for Transmission
Providers, 72 FR 3958 (Jan. 29, 2007), FERC Stats.
& Regs. ¶ 32,611 (2007).
4 On March 1, 2007, the Commission issued an
order extending the deadline for submitting initial
comments by 15 days to March 30, 2007 and
extending the deadline for submitting reply
comments an additional 10 days to April 30, 2007.
VerDate Aug<31>2005
12:37 Mar 26, 2007
Jkt 211001
2. Four petitioners, the Interstate
Natural Gas Association of America
(INGAA), CenterPoint Energy Gas
Transmission Company (CenterPoint),
the National Fuel Companies (National
Fuel) and Spectra Energy Transmission,
LLC (Spectra) (petitioners or four
petitioners), filed requests for
clarification or, in the alternative,
rehearing of the interim rule.5 INGAA
and CenterPoint seek expedited
consideration so that a decision is
issued prior to the comment deadline
for the NOPR. As discussed below, the
Commission grants clarification that the
standards of conduct for natural gas
transmission providers under the
interim rule apply only to natural gas
transmission providers that are affiliated
with a marketing or brokering entity that
conducts transportation transactions on
such natural gas transmission provider’s
pipeline, and that the definition for
‘‘marketing or brokering’’ is consistent
with the definition of that term under
the natural gas transmission standards
of conduct prior to Order No. 2004. The
Commission will amend the regulatory
text accordingly to reflect these
clarifications. With regards to the other
issues for which clarification or
rehearing is sought, the Commission
will address those issues
contemporaneously with the rulemaking
proceeding in Docket No. RM07–1–000.
II. The D.C. Circuit’s Decision in
National Fuel
3. In National Fuel, the court found
that the Commission did not support the
standards of conduct’s expansive
definition of energy affiliates, vacated
Order Nos. 2004, 2004–A, 2004–B,
2004–C and 2004–D (collectively
referred to as Order No. 2004) as applied
to natural gas pipelines, and remanded
the orders to the Commission.6
Specifically, the court rejected the
Commission’s extension of the
standards of conduct beyond pipelines’
relationships with their marketing
affiliates to govern pipelines’
relationships with numerous nonmarketing affiliates, such as producers,
gatherers, and local distribution
companies (non-marketing energy
affiliates), as well as extending the
standards of conduct to affiliates that do
not ship on their affiliated pipelines.7 In
light of these findings, the court found
moot the other issues raised on appeal.8
5 CenterPoint incorporated by reference INGAA’s
filing.
6 National Fuel, slip op. at 4. Order No. 2004 was
not appealed as it applies to electric utility
transmission providers.
7 Id., slip op. at 25.
8 Id., slip op. at 4.
PO 00000
Frm 00002
Fmt 4700
Sfmt 4700
III. The Interim Rule
4. In the interim rule, the Commission
repromulgated the standards of conduct
not challenged in the National Fuel
appeal and adopted or revised other
provisions of the standards of conduct
that had been the subject of the appeal,
while the Commission considers how to
respond to the court’s decision on a
permanent basis.9 The Commission
intended the interim rule to eliminate
any uncertainty about how the
standards of conduct apply to natural
gas transmission providers while the
Commission developed a final rule.10
The Commission adhered to both the
letter and the spirit of the court’s
decision in National Fuel by fashioning
an interim rule under which the
standards of conduct do not apply to the
relationship between natural gas
transmission providers and nonmarketing energy affiliates, which is the
aspect of the standards of conduct that
the court found infirm.11
5. Although the DC Circuit did not
consider petitioners’ other issues on
appeal, under the interim rule the
Commission treated each of those issues
as if the court had also overturned those
sections. Specifically, for natural gas
transmission providers, the interim rule:
(1) Omitted restrictions on shared risk
management employees 12 and (2)
revised the requirement for logging
waivers of tariff provisions so that it was
identical to the Order No. 497
requirements.13 The Commission also
incorporated modifications consistent
with petitioners’ appeals of two issues
discussed in the preamble of Order No.
2004, but not codified in regulatory text.
9 Interim
Rule at P 2.
10 Id.
11 Id.
at P 5 and 7.
358.4(a)(6) of the Commission’s
regulations states that ‘‘Transmission Providers are
permitted to share risk management employees that
are not engaged in Transmission Functions or sales
or commodity Functions with their Marketing and
Energy Affiliates.’’ 18 CFR 358.4(a)(6). The interim
rule modified this provision by adding a second
sentence that states, ‘‘This provision does not apply
to natural gas transmission providers.’’
13 Section 358.5(c)(4) of the Commission’s
regulations states that ‘‘The Transmission Provider
must maintain a written log, available for
Commission audit, detailing the circumstances and
manner in which it exercised its discretion under
any terms of the tariff. The information contained
in this log is to be posted on the OASIS or Internet
web site within 24 hours of when a Transmission
Provider exercises its discretion under any terms of
the tariff.’’ 18 CFR 358.5(c)(4). The interim rule
changed 18 CFR 358.5(c)(4) by renumbering it as 18
CFR 358.5(c)(4)(i) and added a new provision in 18
CFR 358.5(c)(4)(ii) as follows: ‘‘[N]atural gas
Transmission Providers must maintain a written log
of waivers that the natural gas Transmission
Provider grants with respect to tariff provisions that
provide for such discretionary waivers and provide
the log to any person requesting it within 24 hours
of the request.’’ 18 CFR 358.5(c)(4)(ii).
12 Section
E:\FR\FM\27MRR1.SGM
27MRR1
Federal Register / Vol. 72, No. 58 / Tuesday, March 27, 2007 / Rules and Regulations
Specifically, the interim rule stated that:
(1) Natural gas transmission providers
could treat lawyers as permissibly
shared employees; and (2) newly
certificated natural gas pipeline
transmission providers would not be
required to observe the standards of
conduct until they commence
transmission services.14
6. The Commission issued the interim
rule consistent with the three factors
articulated in Mid-Tex Electric
Cooperative, Inc. v. FERC (Mid-Tex) 15
for issuing an interim rule without prior
notice and comment under the
Administrative Procedure Act.16 First,
the Commission stressed that the
interim rule was not intended to serve
as a permanent rule and that it was
commencing a rulemaking proceeding
through the issuance of a NOPR (issued
nine days after the interim rule).17
Second, the interim rule followed the
court’s opinion in National Fuel
because, for natural gas pipelines, it
eliminated the provisions of Order No.
2004 that were subject to appeal and
instead adopted provisions originally
promulgated in Order No. 497, which
was upheld in relevant part by the court
in Tenneco Gas v. FERC.18 Third, the
Commission issued the interim rule to
avoid regulatory confusion. When the
Commission adopted Order No. 2004, it
rescinded the standards of conduct
promulgated by Order No. 497. Because
National Fuel vacated Order No. 2004 as
applied to natural gas transmission
providers, without the interim rule there
would have been no existing regulations
governing the relationship between
14 Former
18 CFR 161.3(k); Interim Rule at P 22.
Electric Cooperative, Inc. v. FERC, 822
F.2d 1123 (DC Cir. 1987).
16 Interim Rule at P 3–6.
17 Id. at P 6.
18 Order No. 497, 53 FR 22139 (June 14, 1988),
FERC Stats. & Regs., Regulations Preambles 1986–
1990 ¶ 30,820 (June 1, 1988); Order No. 497–A,
order on reh’g, 54 FR 52781 (Dec. 22, 1989), FERC
Stats. & Regs., Regulations Preambles 1986–1990
¶ 30,868 (Dec. 15, 1989); Order No. 497–B, order
extending sunset date, 55 FR 53291 (Dec. 28, 1990),
FERC Stats. & Regs., Regulations Preambles 1986–
1990 ¶ 30,908 (Dec. 13, 1990); Order No. 497–C,
order extending sunset date, 57 FR 9 (Jan. 2, 1992),
FERC Stats. & Regs., Regulations Preambles 1991–
1996 ¶ 30,934 (Dec. 20, 1991), reh’g denied, 57 FR
5815 (Feb. 18, 1992), 58 FERC ¶ 61,139 (Feb. 10,
1992); Tenneco Gas v. FERC (affirmed in part and
remanded in part), 969 F.2d 1187 (D.C. Cir. 1992);
Order No. 497–D, order on remand and extending
sunset date, 57 FR 58978 (Dec. 14, 1992), FERC
Stats. & Regs., Regulations Preambles 1991–1996
¶ 30,958 (Dec. 4, 1992); Order No. 497–E, order on
reh’g and extending sunset date, 59 FR 243 (Jan. 4,
1994), FERC Stats. & Regs., Regulations Preambles
1991–1996 ¶ 30,987 (Dec. 23, 1993); Order No. 497–
F, order denying reh’g and granting clarification, 59
FR 15336 (Apr. 1, 1994), 66 FERC ¶ 61,347 (Mar.
24, 1994); and Order No. 497–G, order extending
sunset date, 59 FR 32884 (June 27, 1994), FERC
Stats. & Regs., Regulations Preambles 1991–1996
¶ 30,996 (June 17, 1994).
rmajette on PROD1PC67 with RULES
15 Mid-Tex
VerDate Aug<31>2005
12:37 Mar 26, 2007
Jkt 211001
natural gas transmission providers and
their marketing affiliates. Such a
situation would not have been in the
public interest because the standards of
conduct have for almost two decades
played an important role in the
Commission’s program to ensure nondiscriminatory access by pipeline
customers to competitive natural gas
markets.19
IV. Petitions for Clarification and
Rehearing
7. Petitioners filed requests for
clarification or rehearing on five issues.
First, the four petitioners seek
clarification or rehearing as to whether
the interim rule limits the application of
the standards of conduct to natural gas
transmission providers that are affiliated
with a marketing or brokering entity that
conducts transportation transactions on
such natural gas transmission provider’s
pipeline. The four petitioners contend
that under Order No. 497, a natural gas
transmission provider was not subject to
the standards of conduct if its marketing
affiliate did not engage in transportation
transactions on its pipeline. INGAA
states that if the Commission intended
the interim rule to return to the preOrder No. 2004 standards of conduct
requirements for natural gas pipelines,
this condition must be included or the
interim rule should not have been
issued without notice or comment. All
four petitioners request that § 358.1 of
the interim rule be amended to include
the language from the prior standards of
conduct in former § 161.1, which
limited the application of the standards
of conduct to natural gas transmission
providers which conduct transportation
transactions with its marketing or
brokering affiliates.20
8. Second, the petitioners assert that
the Commission erred in defining
marketing affiliate in § 358.3(k) of the
Commission’s regulations. INGAA
contends that the definition of
‘‘Marketing Affiliate’’ in § 358.3(k)
should treat natural gas pipeline
transmission providers separately from
electric transmission providers: for
natural gas transmission providers, the
definition of marketing affiliate should
reference the definition of ‘‘marketing or
brokering’’ in § 358.3(l). For electric
transmission providers, the definition of
marketing affiliate should reference the
19 Interim
Rule at P 6.
18 CFR 161.1 stated that ‘‘This part
applies to any interstate natural gas pipeline that
transports gas for others pursuant to subpart A of
part 157, and subparts B or G or part 284 and is
affiliated in any way with a natural gas marketing
or brokering entity and conducts transportation
transactions with its marketing or brokering
affiliate.’’
20 Former
PO 00000
Frm 00003
Fmt 4700
Sfmt 4700
14237
definition of ‘‘marketing, sales, or
brokering’’ in § 358.3(e). This change,
INGAA contends, would make clear that
§ 358.3(e)’s definition of ‘‘marketing,
sales or brokering’’ is not relevant to
identifying the marketing affiliates of
natural gas transmission providers.
INGAA asserts that sales of electric
energy were not part of the definition of
‘‘marketing or brokering’’ under the
former natural gas standards of conduct
under Order No. 497, and thus should
not apply to natural gas transmission
providers under the interim rule. All
four petitioners support an identical
language change to the definition of
marketing affiliate in § 358.3(k) to
clarify this point.
9. Third, the four petitioners contend
that § 358.1(e) of the Commission’s
regulations promulgated in the interim
rule has the unintended consequence of
including more entities as marketing
affiliates than under the prior gas
standards of conduct.21 Specifically,
INGAA and National Fuel contend that
an entity that falls under one of the
exceptions to the definition of an energy
affiliate under § 358.3(d)(6) of the
Commission’s regulations could now be
considered to be classified as a
marketing affiliate of a gas pipeline.
10. Fourth, the four petitioners
contend that the Commission erred by
amending § 358.4(a)(6) of the
Commission’s regulations to remove, for
natural gas transmission providers, the
exception allowing transmission
providers to share risk management
employees with marketing and energy
affiliates provided that the risk
managers are not engaged in
transmission functions or sales or
commodity functions. INGAA contends
it appealed this issue to the D.C. Circuit
on the grounds that the Commission had
imposed too many restrictions on the
sharing of risk management personnel.
As such, the four petitioners contend
that the Commission should add a
provision that expressly permits natural
gas transmission providers to share risk
management employees with their
marketing affiliates.
11. Finally, the four petitioners
request that the Commission clarify the
effect of restoring the language of former
§ 161.3(k) of the Commission’s
regulations, requiring natural gas
transmission providers to maintain a
waiver log, in new § 358.5(c)(4)(ii) of the
Commission’s regulations. Specifically,
they assert that the current provision (as
well as the prior provision in § 161.3(k))
21 Section 358.1(e) of the Commission’s
regulations states that the standards of conduct do
not govern the relationship between a natural gas
transmission provider and its energy affiliate. 18
CFR 358.1(e).
E:\FR\FM\27MRR1.SGM
27MRR1
14238
Federal Register / Vol. 72, No. 58 / Tuesday, March 27, 2007 / Rules and Regulations
rmajette on PROD1PC67 with RULES
apply only to granting waivers under
the tariff and does not apply to acts of
discretion under the tariff. INGAA
requests that the Commission clarify
that a pipeline will be in compliance
with the interim rule if the pipeline logs
waivers, but not every act of discretion,
in a situation when (1) a pipeline tariff
expressly permits the pipeline to waive
a specific tariff requirement; and (2) the
pipeline waives a tariff requirement.
V. Commission Determination
12. As noted earlier, the
Commission’s intent in promulgating
the interim rule with respect to natural
gas transmission providers was to
restore the pre-Order No. 2004
standards of conduct in order to avoid
a regulatory gap once the D.C. Circuit
issued its decision in National Fuel
vacating Order No. 2004 as applied to
natural gas transmission providers. The
interim rule was intended to be a
temporary measure while the
Commission promulgated permanent
regulations in light of National Fuel, a
process the Commission started in the
NOPR in Docket No. RM07–1–000. The
Commission did not intend for the
interim rule to create any new standards
of conduct obligations or new
exceptions for natural gas transmission
providers that were not in place prior to
Order No. 2004.
13. As such, the Commission will
grant clarification to revise the
standards of conduct regulations under
the interim rule to reflect the prior
standards of conduct for natural gas
transmission providers under Order No.
497. Specifically, the Commission
agrees with the requests to: (a) Revise
§ 358.1 to include the language from
former § 161.1 limiting the standards of
conduct to natural gas transmission
providers that conduct transmission
transactions with their marketing or
brokering affiliates; and (b) revise the
definition of ‘‘marketing affiliate’’ in
§ 358.3(k) to tie it to the definition of
‘‘marketing and brokering’’ for natural
gas transmission provider in § 358.3(l)
(which uses the definition under Order
No. 497). With respect to entities
covered by the standards of conduct,
these clarifications reflect the
Commission’s intent that the scope of
the interim rule track the scope of the
standards of conduct requirements for
natural gas transmission providers in
Order No. 497.
14. Accordingly, the standards of
conduct will not govern the relationship
of a natural gas transmission provider
and its affiliate that engages in
marketing or brokering activities (as
defined in § 358.3(l)) if that affiliate
does not conduct transportation
VerDate Aug<31>2005
12:37 Mar 26, 2007
Jkt 211001
transactions on that natural gas
transmission provider’s pipeline. Also
the standards of conduct do not govern
the relationship between a natural gas
transmission provider and its electric
affiliate that engages in electric
marketing, sales or brokering activities
(as defined in § 358.3(e)) as long as that
electric affiliate does not (i) Engage in
natural gas marketing activities under
§ 358.3(l) and (ii) conduct transportation
transactions on the affiliated natural gas
transmission provider’s pipeline.
15. The Commission intends to
address the remainder of the issues
raised by the four petitioners
contemporaneously with the rulemaking
proceeding in Docket No. RM07–1–000.
Unlike the requests for which the
Commission is granting clarification, the
four petitioners’ remaining requests do
not seek to have the Commission restore
the language of the standards of conduct
for natural gas transmission providers as
it existed prior to Order No. 2004.
Instead, the four petitioners’ remaining
requests seek rehearing by asserting that
certain provisions in Order No. 2004
which the court had vacated should be
applicable to them or by seeking
interpretations of language that the
Commission restored from Order No.
497. As such, the consideration of such
issues goes beyond the scope of what
the Commission intended in the interim
rule, namely, to restore the rules in
place prior to National Fuel until the
current rulemaking proceeding is
completed. The Commission believes
that consideration of the remaining
issues with the rulemaking proceeding
in Docket No. RM07–1–000 will lead to
a more efficient disposition of the four
petitioners’ remaining contentions,
because they relate to which provisions
of Order No. 2004 should be retained
and how they should be interpreted.
Again, the Commission affirms that the
clarifications made to the standards of
conduct for natural gas transmission
providers in the interim rule were not
intended to create new standards of
conduct requirements beyond the
requirements prior to Order No. 2004.
VI. Document Availability
16. In addition to publishing the full
text of this document in the Federal
Register, the Commission provides all
interested persons an opportunity to
view and/or print the contents of this
document via the Internet through
FERC’s Home Page (https://www.ferc.gov)
and in FERC’s Public Reference Room
during normal business hours (8:30 a.m.
to 5 p.m. Eastern time) at 888 First
Street, NE., Room 2A, Washington, DC
20426.
PO 00000
Frm 00004
Fmt 4700
Sfmt 4700
17. From FERC’s Home Page on the
Internet, this information is available on
eLibrary. The full text of this document
is available on eLibrary in PDF and
Microsoft Word format for viewing,
printing, and/or downloading. To access
this document in eLibrary, type the
docket number excluding the last three
digits of this document in the docket
number field.
18. User assistance is available for
eLibrary and the FERC’s Web site during
normal business hours from our Help
line at (202) 502–8222 or the Public
Reference Room at (202) 502–8371 Press
0, TTY (202) 502–8659. E-Mail the
Public Reference Room at
public.referenceroom@ferc.gov.
VII. Effective Date
19. These revisions in this order on
clarification and rehearing are effective
on March 27, 2007.
List of Subjects in 18 CFR Part 358
Natural gas, Reporting and
recordkeeping requirements.
By the Commission.
Philis J. Posey,
Acting Secretary.
In consideration of the foregoing, the
Commission amends part 358, Chapter I,
Title 18, Code of Federal Regulations, to
read as follows:
I
PART 358—STANDARDS OF
CONDUCT
1. The authority citation for part 358
continues to read as follows:
I
Authority: 15 U.S.C. 717–717w, 3301–
3432; 16 U.S.C. 791–825r, 2601–2645; 31
U.S.C. 9701; 42 U.S.C. 7101–7352.
2. In § 358.1, paragraph (a) is revised
to read as follows:
I
§ 358.1
Applicability.
(a) This part applies to any interstate
natural gas pipeline that transports gas
for others pursuant to subpart A of part
157 or subparts B or G of part 284 of this
chapter and is affiliated in any way with
a marketing or brokering entity and
conducts transportation transactions
with its marketing or brokering affiliate.
*
*
*
*
*
I 3. In § 358.3, paragraph (k) is revised
to read as follows:
§ 358.3
Definitions.
*
*
*
*
*
(k) Marketing Affiliate means an
Affiliate as that term is defined in
§ 358.3(b) or a unit that—
(1) With respect to a natural gas
pipeline Transmission Provider, engages
in ‘‘marketing and brokering’’ activities
E:\FR\FM\27MRR1.SGM
27MRR1
Federal Register / Vol. 72, No. 58 / Tuesday, March 27, 2007 / Rules and Regulations
as those terms are defined at § 358.3(l);
and
(2) With respect to an electric
Transmission Provider, engages in
marketing, sales or brokering activities
as those terms are defined at § 358.3(e).
*
*
*
*
*
[FR Doc. E7–5497 Filed 3–26–07; 8:45 am]
BILLING CODE 6717–01–P
1. The authority citation for 48 CFR
parts 215, 225, and 253 continues to
read as follows:
I
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
PART 215—CONTRACTING BY
NEGOTIATION
215.404–71–3
[Amended]
I 2. Section 215.404–71–3 is amended
in paragraph (b)(7), in the first sentence,
by removing ‘‘(see 230.7101–1(a))’’ and
adding in its place ‘‘(see https://
www.treasurydirect.gov/govt/rates/tcir/
tcir_opdirsemi.htm)’’.
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 215, 225, and 253
215.404–71–4
Defense Federal Acquisition
Regulation Supplement; Technical
Amendments
3. Section 215.404–71–4 is amended
in paragraph (e)(2) by removing ‘‘(see
230.7001)’’.
[Amended]
I
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
PART 225—FOREIGN ACQUISITION
225.7014
[Amended]
4. Section 225.7014 is amended by
removing ‘‘236.274(a)’’ and adding in its
place ‘‘236.273(a)’’.
I
DoD is making technical
amendments to the Defense Federal
Acquisition Regulation Supplement
(DFARS) to update references within the
DFARS text.
EFFECTIVE DATE: March 27, 2007.
FOR FURTHER INFORMATION CONTACT: Ms.
Michele Peterson, Defense Acquisition
Regulations System,
OUSD(AT&L)DPAP(DARS), IMD 3C132,
3062 Defense Pentagon, Washington, DC
20301–3062. Telephone (703) 602–0311;
facsimile (703) 602–0350.
SUPPLEMENTARY INFORMATION: This final
rule amends DFARS text as follows:
• Sections 215.404–71–3 and
215.404–71–4. Removes obsolete crossreferences, and adds a reference to the
TreasuryDirect Web site for interest rate
information.
• Section 225.7014. Updates a crossreference.
• Section 225.7401. Updates the
section to provide a more specific
description of the Procedures,
Guidance, and Information (PGI) text
referenced in paragraph (a).
• Part 253. Adds a reference to the
DoD Forms Management Program Web
site.
SUMMARY:
5. Section 225.7401 is amended by
revising the section heading and
paragraph (a) to read as follows:
I
225.7401 Contracts requiring performance
or delivery in a foreign country.
(a) If an acquisition requires
performance of work in a foreign
country by contractor personnel other
than host country personnel, or delivery
of items to a Unified Combatant
Command designated operational area,
follow the procedures at PGI
225.7401(a).
*
*
*
*
*
PART 253—FORMS
6. Subpart 253.3 is added to read as
follows:
I
Subpart 253.3—Illustration of Forms
253.303
Agency forms.
DoD forms are available at https://
www.dtic.mil/whs/directives/infomgt/
forms/formsprogram.htm.
[FR Doc. E7–5476 Filed 3–26–07; 8:45 am]
List of Subjects in 48 CFR Parts 215,
225, and 253
BILLING CODE 5001–08–P
rmajette on PROD1PC67 with RULES
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 215, 225, and
253 are amended as follows:
I
VerDate Aug<31>2005
12:37 Mar 26, 2007
Jkt 211001
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
14239
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 225 and 252
RIN 0750–AF34
Defense Federal Acquisition
Regulation Supplement; Prohibition on
Acquisition from Communist Chinese
Military Companies (DFARS Case
2006–D007)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
SUMMARY: DoD has adopted as final,
without change, an interim rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement Section 1211 of
the National Defense Authorization Act
for Fiscal Year 2006. Section 1211
prohibits DoD from acquiring United
States Munitions List items from
Communist Chinese military
companies.
EFFECTIVE DATE:
March 27, 2007.
Ms.
Amy Williams, Defense Acquisition
Regulations System,
OUSD(AT&L)DPAP(DARS), IMD 3C132,
3062 Defense Pentagon, Washington, DC
20301–3062. Telephone (703) 602–0328;
facsimile (703) 602–0350. Please cite
DFARS Case 2006–D007.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
A. Background
DoD published an interim rule at 71
FR 53045 on September 8, 2006, to
implement Section 1211 of the National
Defense Authorization Act for Fiscal
Year 2006 (Public Law 109–163).
Section 1211 prohibits DoD from
acquiring goods or services, through a
contract or a subcontract with a
Communist Chinese military company,
if the goods or services being acquired
are on the munitions list of the
International Trafficking in Arms
Regulations (the United States
Munitions List (USML) at 22 CFR Part
121).
One source submitted comments on
the interim rule. That source
recommended addition of an exception
to the policy that, before issuance of a
solicitation, the requirements activity
must notify the contracting officer
whether the items to be acquired are on
the USML. The exception would apply
to items that include critical military
technology, since those items are
already subject to controls that limit
E:\FR\FM\27MRR1.SGM
27MRR1
Agencies
[Federal Register Volume 72, Number 58 (Tuesday, March 27, 2007)]
[Rules and Regulations]
[Pages 14235-14239]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-5497]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 358
[Docket No. RM07-6-001; Order No. 690-A]
Order on Clarification and Rehearing
Issued March 21, 2007.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This order responds to four requests for clarification or, in
the alternative, rehearing of the interim rule which the Federal Energy
Regulatory Commission issued on January 9, 2007. The Commission issued
the interim rule in response to the decision of the United States Court
of Appeals for the District of Columbia vacating and remanding the
standards of conduct rule, Order No. 2004, as applicable to interstate
natural gas pipelines, in National Fuel Gas Supply Corporation v. FERC,
468 F.3d 831 (D.C. Cir. 2006).
In this order, the Commission grants clarification that the
standards of conduct for natural gas transmission providers under the
interim rule apply only to natural gas transmission providers that are
affiliated with a marketing or brokering entity that conducts
transportation transactions on such natural gas transmission provider's
pipeline. The Commission also grants clarification that the definition
for a marketing or brokering entity for a natural gas transmission
provider is identical to the definition under the pre-Order No. 2004
standards of conduct. With regards to the other issues for which
clarification or rehearing is sought, the Commission will defer
consideration of these matters in this proceeding and address them
contemporaneously with the rulemaking proceeding in Docket No. RM07-1-
000.
EFFECTIVE DATE: This rule is effective on March 27, 2007.
FOR FURTHER INFORMATION CONTACT:
Stuart Fischer, Office of Enforcement, Federal Energy Regulatory
Commission, 888 First Street, NE., Washington, DC 20426, Telephone:
(202) 502-8517, E-mail: stuart.fischer@ferc.gov.
[[Page 14236]]
Deme Anas, Office of Enforcement, Federal Energy Regulatory Commission,
888 First Street, NE., Washington, DC 20426, Telephone: (202) 502-8178,
E-mail: demetra.anas@ferc.gov.
SUPPLEMENTARY INFORMATION: Before Commissioners: Joseph T. Kelliher,
Chairman; Suedeen G. Kelly, Marc Spitzer, Philip D. Moeller, and Jon
Wellinghoff.
Standards of Conduct for Transmission Providers
I. Introduction
1. On January 9, 2007, the Commission issued an interim rule
promulgating interim standards of conduct regulations that govern the
relationship between natural gas transmission providers and their
marketing affiliates.\1\ The Commission issued the interim rule to
respond to the decision of the United States Court of Appeals for the
District of Columbia concerning the Standards of Conduct for
Transmission Providers under Order No. 2004.\2\ The purpose of the
interim rule was to repromulgate the standards of conduct not
challenged in the National Fuel appeal in the interim while the
Commission considered how to respond to the court's decision on a
permanent basis. Subsequently, on January 18, 2007, the Commission
issued a Notice of Proposed Rulemaking (NOPR) in which the Commission
proposed making the provisions of the interim rule permanent, as well
as proposing other changes to the standards of conduct for natural gas
and electric transmission providers.\3\ The Commission invited comments
on the proposals in the NOPR, and comments are due on March 30,
2007.\4\
---------------------------------------------------------------------------
\1\ Standards of Conduct for Transmission Providers, Order No.
690, 72 FR 2427 (Jan. 19, 2007); FERC Stats. & Regs. ] 31,327
(2007). (Interim Rule). The Commission issued an errata notice on
January 22, 2007 that made corrections to paragraph 18 and the
regulatory text.
\2\ Standards of Conduct for Transmission Providers, Order No.
2004, FERC Stats. & Regs., Regulations Preambles ] 31,155 (2003),
order on reh'g, Order No. 2004-A, III FERC Stats. & Regs. ] 31,161
(2004), 107 FERC ] 61,032 (2004), order on reh'g, Order No. 2004-B,
III FERC Stats. & Regs. ] 31,166 (2004), 108 FERC ] 61,118 (2004),
order on reh'g, Order No. 2004-C, 109 FERC ] 61,325 (2004), order on
reh'g, Order No. 2004-D, 110 FERC ] 61,320 (2005), vacated and
remanded as it applies to natural gas pipelines, National Fuel Gas
Supply Corporation v. FERC, 468 F.3d 831 (D.C. Cir. 2006) (National
Fuel).
\3\ Standards of Conduct for Transmission Providers, 72 FR 3958
(Jan. 29, 2007), FERC Stats. & Regs. ] 32,611 (2007).
\4\ On March 1, 2007, the Commission issued an order extending
the deadline for submitting initial comments by 15 days to March 30,
2007 and extending the deadline for submitting reply comments an
additional 10 days to April 30, 2007.
---------------------------------------------------------------------------
2. Four petitioners, the Interstate Natural Gas Association of
America (INGAA), CenterPoint Energy Gas Transmission Company
(CenterPoint), the National Fuel Companies (National Fuel) and Spectra
Energy Transmission, LLC (Spectra) (petitioners or four petitioners),
filed requests for clarification or, in the alternative, rehearing of
the interim rule.\5\ INGAA and CenterPoint seek expedited consideration
so that a decision is issued prior to the comment deadline for the
NOPR. As discussed below, the Commission grants clarification that the
standards of conduct for natural gas transmission providers under the
interim rule apply only to natural gas transmission providers that are
affiliated with a marketing or brokering entity that conducts
transportation transactions on such natural gas transmission provider's
pipeline, and that the definition for ``marketing or brokering'' is
consistent with the definition of that term under the natural gas
transmission standards of conduct prior to Order No. 2004. The
Commission will amend the regulatory text accordingly to reflect these
clarifications. With regards to the other issues for which
clarification or rehearing is sought, the Commission will address those
issues contemporaneously with the rulemaking proceeding in Docket No.
RM07-1-000.
---------------------------------------------------------------------------
\5\ CenterPoint incorporated by reference INGAA's filing.
---------------------------------------------------------------------------
II. The D.C. Circuit's Decision in National Fuel
3. In National Fuel, the court found that the Commission did not
support the standards of conduct's expansive definition of energy
affiliates, vacated Order Nos. 2004, 2004-A, 2004-B, 2004-C and 2004-D
(collectively referred to as Order No. 2004) as applied to natural gas
pipelines, and remanded the orders to the Commission.\6\ Specifically,
the court rejected the Commission's extension of the standards of
conduct beyond pipelines' relationships with their marketing affiliates
to govern pipelines' relationships with numerous non-marketing
affiliates, such as producers, gatherers, and local distribution
companies (non-marketing energy affiliates), as well as extending the
standards of conduct to affiliates that do not ship on their affiliated
pipelines.\7\ In light of these findings, the court found moot the
other issues raised on appeal.\8\
---------------------------------------------------------------------------
\6\ National Fuel, slip op. at 4. Order No. 2004 was not
appealed as it applies to electric utility transmission providers.
\7\ Id., slip op. at 25.
\8\ Id., slip op. at 4.
---------------------------------------------------------------------------
III. The Interim Rule
4. In the interim rule, the Commission repromulgated the standards
of conduct not challenged in the National Fuel appeal and adopted or
revised other provisions of the standards of conduct that had been the
subject of the appeal, while the Commission considers how to respond to
the court's decision on a permanent basis.\9\ The Commission intended
the interim rule to eliminate any uncertainty about how the standards
of conduct apply to natural gas transmission providers while the
Commission developed a final rule.\10\ The Commission adhered to both
the letter and the spirit of the court's decision in National Fuel by
fashioning an interim rule under which the standards of conduct do not
apply to the relationship between natural gas transmission providers
and non-marketing energy affiliates, which is the aspect of the
standards of conduct that the court found infirm.\11\
---------------------------------------------------------------------------
\9\ Interim Rule at P 2.
\10\ Id.
\11\ Id. at P 5 and 7.
---------------------------------------------------------------------------
5. Although the DC Circuit did not consider petitioners' other
issues on appeal, under the interim rule the Commission treated each of
those issues as if the court had also overturned those sections.
Specifically, for natural gas transmission providers, the interim rule:
(1) Omitted restrictions on shared risk management employees \12\ and
(2) revised the requirement for logging waivers of tariff provisions so
that it was identical to the Order No. 497 requirements.\13\ The
Commission also incorporated modifications consistent with petitioners'
appeals of two issues discussed in the preamble of Order No. 2004, but
not codified in regulatory text.
[[Page 14237]]
Specifically, the interim rule stated that: (1) Natural gas
transmission providers could treat lawyers as permissibly shared
employees; and (2) newly certificated natural gas pipeline transmission
providers would not be required to observe the standards of conduct
until they commence transmission services.\14\
---------------------------------------------------------------------------
\12\ Section 358.4(a)(6) of the Commission's regulations states
that ``Transmission Providers are permitted to share risk management
employees that are not engaged in Transmission Functions or sales or
commodity Functions with their Marketing and Energy Affiliates.'' 18
CFR 358.4(a)(6). The interim rule modified this provision by adding
a second sentence that states, ``This provision does not apply to
natural gas transmission providers.''
\13\ Section 358.5(c)(4) of the Commission's regulations states
that ``The Transmission Provider must maintain a written log,
available for Commission audit, detailing the circumstances and
manner in which it exercised its discretion under any terms of the
tariff. The information contained in this log is to be posted on the
OASIS or Internet web site within 24 hours of when a Transmission
Provider exercises its discretion under any terms of the tariff.''
18 CFR 358.5(c)(4). The interim rule changed 18 CFR 358.5(c)(4) by
renumbering it as 18 CFR 358.5(c)(4)(i) and added a new provision in
18 CFR 358.5(c)(4)(ii) as follows: ``[N]atural gas Transmission
Providers must maintain a written log of waivers that the natural
gas Transmission Provider grants with respect to tariff provisions
that provide for such discretionary waivers and provide the log to
any person requesting it within 24 hours of the request.'' 18 CFR
358.5(c)(4)(ii).
\14\ Former 18 CFR 161.3(k); Interim Rule at P 22.
---------------------------------------------------------------------------
6. The Commission issued the interim rule consistent with the three
factors articulated in Mid-Tex Electric Cooperative, Inc. v. FERC (Mid-
Tex) \15\ for issuing an interim rule without prior notice and comment
under the Administrative Procedure Act.\16\ First, the Commission
stressed that the interim rule was not intended to serve as a permanent
rule and that it was commencing a rulemaking proceeding through the
issuance of a NOPR (issued nine days after the interim rule).\17\
Second, the interim rule followed the court's opinion in National Fuel
because, for natural gas pipelines, it eliminated the provisions of
Order No. 2004 that were subject to appeal and instead adopted
provisions originally promulgated in Order No. 497, which was upheld in
relevant part by the court in Tenneco Gas v. FERC.\18\ Third, the
Commission issued the interim rule to avoid regulatory confusion. When
the Commission adopted Order No. 2004, it rescinded the standards of
conduct promulgated by Order No. 497. Because National Fuel vacated
Order No. 2004 as applied to natural gas transmission providers,
without the interim rule there would have been no existing regulations
governing the relationship between natural gas transmission providers
and their marketing affiliates. Such a situation would not have been in
the public interest because the standards of conduct have for almost
two decades played an important role in the Commission's program to
ensure non-discriminatory access by pipeline customers to competitive
natural gas markets.\19\
---------------------------------------------------------------------------
\15\ Mid-Tex Electric Cooperative, Inc. v. FERC, 822 F.2d 1123
(DC Cir. 1987).
\16\ Interim Rule at P 3-6.
\17\ Id. at P 6.
\18\ Order No. 497, 53 FR 22139 (June 14, 1988), FERC Stats. &
Regs., Regulations Preambles 1986-1990 ] 30,820 (June 1, 1988);
Order No. 497-A, order on reh'g, 54 FR 52781 (Dec. 22, 1989), FERC
Stats. & Regs., Regulations Preambles 1986-1990 ] 30,868 (Dec. 15,
1989); Order No. 497-B, order extending sunset date, 55 FR 53291
(Dec. 28, 1990), FERC Stats. & Regs., Regulations Preambles 1986-
1990 ] 30,908 (Dec. 13, 1990); Order No. 497-C, order extending
sunset date, 57 FR 9 (Jan. 2, 1992), FERC Stats. & Regs.,
Regulations Preambles 1991-1996 ] 30,934 (Dec. 20, 1991), reh'g
denied, 57 FR 5815 (Feb. 18, 1992), 58 FERC ] 61,139 (Feb. 10,
1992); Tenneco Gas v. FERC (affirmed in part and remanded in part),
969 F.2d 1187 (D.C. Cir. 1992); Order No. 497-D, order on remand and
extending sunset date, 57 FR 58978 (Dec. 14, 1992), FERC Stats. &
Regs., Regulations Preambles 1991-1996 ] 30,958 (Dec. 4, 1992);
Order No. 497-E, order on reh'g and extending sunset date, 59 FR 243
(Jan. 4, 1994), FERC Stats. & Regs., Regulations Preambles 1991-1996
] 30,987 (Dec. 23, 1993); Order No. 497-F, order denying reh'g and
granting clarification, 59 FR 15336 (Apr. 1, 1994), 66 FERC ] 61,347
(Mar. 24, 1994); and Order No. 497-G, order extending sunset date,
59 FR 32884 (June 27, 1994), FERC Stats. & Regs., Regulations
Preambles 1991-1996 ] 30,996 (June 17, 1994).
\19\ Interim Rule at P 6.
---------------------------------------------------------------------------
IV. Petitions for Clarification and Rehearing
7. Petitioners filed requests for clarification or rehearing on
five issues. First, the four petitioners seek clarification or
rehearing as to whether the interim rule limits the application of the
standards of conduct to natural gas transmission providers that are
affiliated with a marketing or brokering entity that conducts
transportation transactions on such natural gas transmission provider's
pipeline. The four petitioners contend that under Order No. 497, a
natural gas transmission provider was not subject to the standards of
conduct if its marketing affiliate did not engage in transportation
transactions on its pipeline. INGAA states that if the Commission
intended the interim rule to return to the pre-Order No. 2004 standards
of conduct requirements for natural gas pipelines, this condition must
be included or the interim rule should not have been issued without
notice or comment. All four petitioners request that Sec. 358.1 of the
interim rule be amended to include the language from the prior
standards of conduct in former Sec. 161.1, which limited the
application of the standards of conduct to natural gas transmission
providers which conduct transportation transactions with its marketing
or brokering affiliates.\20\
---------------------------------------------------------------------------
\20\ Former 18 CFR 161.1 stated that ``This part applies to any
interstate natural gas pipeline that transports gas for others
pursuant to subpart A of part 157, and subparts B or G or part 284
and is affiliated in any way with a natural gas marketing or
brokering entity and conducts transportation transactions with its
marketing or brokering affiliate.''
---------------------------------------------------------------------------
8. Second, the petitioners assert that the Commission erred in
defining marketing affiliate in Sec. 358.3(k) of the Commission's
regulations. INGAA contends that the definition of ``Marketing
Affiliate'' in Sec. 358.3(k) should treat natural gas pipeline
transmission providers separately from electric transmission providers:
for natural gas transmission providers, the definition of marketing
affiliate should reference the definition of ``marketing or brokering''
in Sec. 358.3(l). For electric transmission providers, the definition
of marketing affiliate should reference the definition of ``marketing,
sales, or brokering'' in Sec. 358.3(e). This change, INGAA contends,
would make clear that Sec. 358.3(e)'s definition of ``marketing, sales
or brokering'' is not relevant to identifying the marketing affiliates
of natural gas transmission providers. INGAA asserts that sales of
electric energy were not part of the definition of ``marketing or
brokering'' under the former natural gas standards of conduct under
Order No. 497, and thus should not apply to natural gas transmission
providers under the interim rule. All four petitioners support an
identical language change to the definition of marketing affiliate in
Sec. 358.3(k) to clarify this point.
9. Third, the four petitioners contend that Sec. 358.1(e) of the
Commission's regulations promulgated in the interim rule has the
unintended consequence of including more entities as marketing
affiliates than under the prior gas standards of conduct.\21\
Specifically, INGAA and National Fuel contend that an entity that falls
under one of the exceptions to the definition of an energy affiliate
under Sec. 358.3(d)(6) of the Commission's regulations could now be
considered to be classified as a marketing affiliate of a gas pipeline.
---------------------------------------------------------------------------
\21\ Section 358.1(e) of the Commission's regulations states
that the standards of conduct do not govern the relationship between
a natural gas transmission provider and its energy affiliate. 18 CFR
358.1(e).
---------------------------------------------------------------------------
10. Fourth, the four petitioners contend that the Commission erred
by amending Sec. 358.4(a)(6) of the Commission's regulations to
remove, for natural gas transmission providers, the exception allowing
transmission providers to share risk management employees with
marketing and energy affiliates provided that the risk managers are not
engaged in transmission functions or sales or commodity functions.
INGAA contends it appealed this issue to the D.C. Circuit on the
grounds that the Commission had imposed too many restrictions on the
sharing of risk management personnel. As such, the four petitioners
contend that the Commission should add a provision that expressly
permits natural gas transmission providers to share risk management
employees with their marketing affiliates.
11. Finally, the four petitioners request that the Commission
clarify the effect of restoring the language of former Sec. 161.3(k)
of the Commission's regulations, requiring natural gas transmission
providers to maintain a waiver log, in new Sec. 358.5(c)(4)(ii) of the
Commission's regulations. Specifically, they assert that the current
provision (as well as the prior provision in Sec. 161.3(k))
[[Page 14238]]
apply only to granting waivers under the tariff and does not apply to
acts of discretion under the tariff. INGAA requests that the Commission
clarify that a pipeline will be in compliance with the interim rule if
the pipeline logs waivers, but not every act of discretion, in a
situation when (1) a pipeline tariff expressly permits the pipeline to
waive a specific tariff requirement; and (2) the pipeline waives a
tariff requirement.
V. Commission Determination
12. As noted earlier, the Commission's intent in promulgating the
interim rule with respect to natural gas transmission providers was to
restore the pre-Order No. 2004 standards of conduct in order to avoid a
regulatory gap once the D.C. Circuit issued its decision in National
Fuel vacating Order No. 2004 as applied to natural gas transmission
providers. The interim rule was intended to be a temporary measure
while the Commission promulgated permanent regulations in light of
National Fuel, a process the Commission started in the NOPR in Docket
No. RM07-1-000. The Commission did not intend for the interim rule to
create any new standards of conduct obligations or new exceptions for
natural gas transmission providers that were not in place prior to
Order No. 2004.
13. As such, the Commission will grant clarification to revise the
standards of conduct regulations under the interim rule to reflect the
prior standards of conduct for natural gas transmission providers under
Order No. 497. Specifically, the Commission agrees with the requests
to: (a) Revise Sec. 358.1 to include the language from former Sec.
161.1 limiting the standards of conduct to natural gas transmission
providers that conduct transmission transactions with their marketing
or brokering affiliates; and (b) revise the definition of ``marketing
affiliate'' in Sec. 358.3(k) to tie it to the definition of
``marketing and brokering'' for natural gas transmission provider in
Sec. 358.3(l) (which uses the definition under Order No. 497). With
respect to entities covered by the standards of conduct, these
clarifications reflect the Commission's intent that the scope of the
interim rule track the scope of the standards of conduct requirements
for natural gas transmission providers in Order No. 497.
14. Accordingly, the standards of conduct will not govern the
relationship of a natural gas transmission provider and its affiliate
that engages in marketing or brokering activities (as defined in Sec.
358.3(l)) if that affiliate does not conduct transportation
transactions on that natural gas transmission provider's pipeline. Also
the standards of conduct do not govern the relationship between a
natural gas transmission provider and its electric affiliate that
engages in electric marketing, sales or brokering activities (as
defined in Sec. 358.3(e)) as long as that electric affiliate does not
(i) Engage in natural gas marketing activities under Sec. 358.3(l) and
(ii) conduct transportation transactions on the affiliated natural gas
transmission provider's pipeline.
15. The Commission intends to address the remainder of the issues
raised by the four petitioners contemporaneously with the rulemaking
proceeding in Docket No. RM07-1-000. Unlike the requests for which the
Commission is granting clarification, the four petitioners' remaining
requests do not seek to have the Commission restore the language of the
standards of conduct for natural gas transmission providers as it
existed prior to Order No. 2004. Instead, the four petitioners'
remaining requests seek rehearing by asserting that certain provisions
in Order No. 2004 which the court had vacated should be applicable to
them or by seeking interpretations of language that the Commission
restored from Order No. 497. As such, the consideration of such issues
goes beyond the scope of what the Commission intended in the interim
rule, namely, to restore the rules in place prior to National Fuel
until the current rulemaking proceeding is completed. The Commission
believes that consideration of the remaining issues with the rulemaking
proceeding in Docket No. RM07-1-000 will lead to a more efficient
disposition of the four petitioners' remaining contentions, because
they relate to which provisions of Order No. 2004 should be retained
and how they should be interpreted. Again, the Commission affirms that
the clarifications made to the standards of conduct for natural gas
transmission providers in the interim rule were not intended to create
new standards of conduct requirements beyond the requirements prior to
Order No. 2004.
VI. Document Availability
16. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
Internet through FERC's Home Page (https://www.ferc.gov) and in FERC's
Public Reference Room during normal business hours (8:30 a.m. to 5 p.m.
Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.
17. From FERC's Home Page on the Internet, this information is
available on eLibrary. The full text of this document is available on
eLibrary in PDF and Microsoft Word format for viewing, printing, and/or
downloading. To access this document in eLibrary, type the docket
number excluding the last three digits of this document in the docket
number field.
18. User assistance is available for eLibrary and the FERC's Web
site during normal business hours from our Help line at (202) 502-8222
or the Public Reference Room at (202) 502-8371 Press 0, TTY (202) 502-
8659. E-Mail the Public Reference Room at
public.referenceroom@ferc.gov.
VII. Effective Date
19. These revisions in this order on clarification and rehearing
are effective on March 27, 2007.
List of Subjects in 18 CFR Part 358
Natural gas, Reporting and recordkeeping requirements.
By the Commission.
Philis J. Posey,
Acting Secretary.
0
In consideration of the foregoing, the Commission amends part 358,
Chapter I, Title 18, Code of Federal Regulations, to read as follows:
PART 358--STANDARDS OF CONDUCT
0
1. The authority citation for part 358 continues to read as follows:
Authority: 15 U.S.C. 717-717w, 3301-3432; 16 U.S.C. 791-825r,
2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352.
0
2. In Sec. 358.1, paragraph (a) is revised to read as follows:
Sec. 358.1 Applicability.
(a) This part applies to any interstate natural gas pipeline that
transports gas for others pursuant to subpart A of part 157 or subparts
B or G of part 284 of this chapter and is affiliated in any way with a
marketing or brokering entity and conducts transportation transactions
with its marketing or brokering affiliate.
* * * * *
0
3. In Sec. 358.3, paragraph (k) is revised to read as follows:
Sec. 358.3 Definitions.
* * * * *
(k) Marketing Affiliate means an Affiliate as that term is defined
in Sec. 358.3(b) or a unit that--
(1) With respect to a natural gas pipeline Transmission Provider,
engages in ``marketing and brokering'' activities
[[Page 14239]]
as those terms are defined at Sec. 358.3(l); and
(2) With respect to an electric Transmission Provider, engages in
marketing, sales or brokering activities as those terms are defined at
Sec. 358.3(e).
* * * * *
[FR Doc. E7-5497 Filed 3-26-07; 8:45 am]
BILLING CODE 6717-01-P