Outer Continental Shelf Lands Act; open and nondiscriminatory access to oil and gas pipelines , 17047-17062 [E7-6197]
Agencies
[Federal Register: April 6, 2007 (Volume 72, Number 66)]
[Proposed Rules]
[Page 17047-17062]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06ap07-15]
[[Page 17047]]
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DEPARTMENT OF THE INTERIOR
Minerals Management Service
30 CFR Part 291
RIN 1010-AD17
Open and Nondiscriminatory Movement of Oil and Gas as Required by
the Outer Continental Shelf Lands Act
AGENCY: Minerals Management Service (MMS), Interior.
ACTION: Proposed rule.
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SUMMARY: The Minerals Management Service (MMS) is proposing new
regulations that would establish a process for a shipper transporting
oil or gas production from Federal leases on the Outer Continental
Shelf (OCS) to follow if it believes it has been denied open and
nondiscriminatory access to pipelines on the OCS. The rule would
provide MMS with tools to ensure that pipeline companies provide open
and nondiscriminatory access to their pipelines.
DATES: MMS will consider all comments received by June 5, 2007. MMS
will begin reviewing comments then and may not fully consider comments
received after June 5, 2007. Comments on the reporting burden in this
rulemaking should be submitted by May 7, 2007.
ADDRESSES: Mail or hand-carry comments to: Director, Minerals
Management Service, Attention: Policy and Management Improvement, 1849
C Street, NW., Mail Stop 4230, Washington, DC 20240-0001. You may
submit comments by personal or messenger delivery to: 1849 C Street,
NW., Room 4223, Washington, DC 20240-0001.
You may also submit comments by any of the following methods.
Please use ``Open and Nondiscriminatory Movement'' and the approved
Regulatory Identification Number (RIN) 1010-AD17 as an identifier in
your message. We will not return materials submitted as part of
comments.
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions on the Web site for submitting comments.
E-mail MMS at rules.comments@mms.gov. Use the RIN in the
subject line. Include your name and return address in your e-mail
message and mark your message for return receipt.
Fax: 202-208-4891. Identify with the RIN.
Please submit comments on any aspect of the reporting
burden in this proposed rule to the Office of Management and Budget
(OMB) either by e-mail (OIRA_DOCKET@omb.eop.gov) or by fax (202) 395-
6566 directly to the Office of Information and Regulatory Affairs, OMB,
Attention: Desk Officer for the Department of the Interior. Please
provide MMS with a copy of your comments so that we can summarize all
written comments and address them in the final rule.
FOR FURTHER INFORMATION CONTACT: Scott Ellis, Policy and Appeals
Division, at (303) 231-3652, Fax: (303) 233-2225, or e-mail at
Scott.Ellis@mms.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Section 5(e) of the Outer Continental Shelf Lands Act (OCSLA), 43
U.S.C. 1331-1356, states that rights-of-way through the submerged lands
of the OCS, whether or not such lands are included in a mineral lease
maintained or issued pursuant to that subchapter, may be granted by the
Secretary of the Interior for pipeline purposes for the transportation
of oil, natural gas, sulphur, or other minerals. The right-of-way may
be granted in accordance with such regulations and upon such conditions
as may be prescribed by the Secretary of the Interior, including the
express condition that oil or gas pipelines shall transport or
purchase, without discrimination, oil or natural gas produced from
submerged lands or OCS lands. 43 U.S.C. 1334(e).
Section 5(f) of the OCSLA mandates that every permit, license,
easement, or right-of-way granted to a pipeline for transportation of
oil or gas on or across the OCS must require that the pipeline
``provide open and nondiscriminatory access to both owner and nonowner
shippers.'' 43 U.S.C. 1334(f).
The Federal Energy Regulatory Commission (FERC), exercising
authority it claimed under the OCSLA, issued regulations requiring
companies providing natural gas transportation service to periodically
file information with FERC concerning their pricing and service
structures. See Order No. 639, FERC Stats. & Regs. (CCH) ] 31,097 at
31,514 (April 10, 2000); Order No. 639-A, FERC Stats. & Regs. (CCH) ]
31,103 (July 26, 2000). FERC believed that the resulting transparency
would enhance competitive and open access to gas transportation. Id.
Several of the subject companies sought judicial relief from the
orders, alleging that FERC did not have authority under OCSLA to issue
the regulations.
On October 10, 2003, the U. S. Court of Appeals for the District of
Columbia Circuit, in Williams Cos. v. FERC, 345 F.3d 910 (D.C. Cir.
2003), found that sections 5(e) and (f) of the OCSLA, 43 U.S.C. 1334(e)
and (f), grant the FERC only limited authority to enforce open access
rules on the OCS. The court found that enforcement of the requirement
to provide open and nondiscriminatory access ``would be at the hands of
the obligee of the conditions, the Secretary of the Interior (or
possibly other persons that the conditions might specify).'' Id. at
913-914.
Specifically, the Court of Appeals concluded that FERC's role under
43 U.S.C. 1334(e) is essentially limited to what are commonly known as
``ratable take'' orders and capacity expansion orders. According to the
court's decision, FERC's authority does not include the regulatory
oversight described in FERC Orders 639 and 639-A. As a result, the FERC
regulations issued under 18 CFR part 330 are ultra vires, and therefore
not enforceable. MMS believes the court's decision means that the OCSLA
provides the Secretary of the Interior the authority to issue and
enforce rules to assure open and nondiscriminatory access to pipelines.
43 U.S.C. 1334(e) and (f)(1)(A).
To determine whether a need exists for regulations to assure open
and nondiscriminatory access, MMS issued an Advance Notice of Proposed
Rulemaking (ANPRM). See 69 FR 19137 (April 12, 2004). Subsequently, MMS
held public meetings in Houston, Washington DC, and New Orleans to hear
oral comments. MMS received written comments from 17 respondents. After
considering all comments, MMS is proceeding with this proposed rule.
The ANPRM requested discussion and comments on several topics. The
commenters generally fell into two groups--shippers/producers and
pipelines/transportation service providers. In most instances, these
commenter groups submitted opposing views. However, on some issues
there was general consensus. Specific topics regarding the issues
raised in the ANPRM comments are addressed below in the applicable
sections of this proposed rulemaking.
II. Section-by-Section Analysis, 30 CFR Part 291
MMS proposes to include a new part 291 in its regulations. This
part would implement complaint procedures and informal alternative
processes to address allegations that a shipper has been denied open
and nondiscriminatory access to a pipeline
[[Page 17048]]
contrary to sections 5(e) and (f) of the OCSLA.
Pursuant to section 27 of the OCSLA, 43 U.S.C. 1353, and section
342 of the Energy Policy Act of 2005, the United States is entitled to
take its royalty in-kind, rather than in value. MMS's Royalty-in-Kind
(RIK) production marketing process includes negotiating rates for
transportation of the production to market. Some of that transportation
will likely occur on pipelines subject to this rulemaking. This may
raise the question of whether MMS, as a shipper of RIK production, can
fairly decide other shipper's appeals alleging violations of the open
and nondiscriminatory access provisions of OCSLA. Furthermore, it also
may raise the issue of whether MMS can fairly decide a complaint
brought by the RIK division.
The MMS believes that this situation is similar to cases in which
the MMS Director decides lessees' appeals of MMS Minerals Revenue
Management (MRM) orders. Those appeals are filed under 30 CFR part 290,
subpart B. Normally those orders require a company to pay monies. The
MMS Director has delegated her authority to decide those appeals to the
Associate Director, Policy and Management Improvement (PMI). MRM and
PMI are separate programs that both report to the MMS Director. Any
decisions regarding complaints on open access would also be decided by
PMI. Appellants in those MRM cases may appeal any adverse MMS decision
to the Interior Board of Land Appeals (IBLA) under 30 CFR part 290.
Appellants' complaints of lack of due process or conflict of interest
under this system have never been upheld. See e.g. Santa Fe Pacific
Railroad Co., 90 IBLA 200, 220 (1986); Davis Exploration, 112 IBLA 254,
260 (1989); Transco Exploration Co. & TXP Operating Co., 110 IBLA 282,
311-12 (1989); W&T Offshore, Inc., 148 IBLA 323, 355-59 (1999).
Appellants under these proposed rules at Sec. 291.112 would be
able to avail themselves of the same IBLA review as current MRM
appeals. Because the process proposed in this rulemaking is the same as
that upheld repeatedly by the Department, the MMS believes that the
proposed process will properly protect parties' rights.
Section 291.100 What Is the Purpose of This Part?
This section would explain the purposes of this part. This part
discusses the procedures for filing a complaint with the MMS Director
alleging that a grantee or transporter, as defined below, has denied a
shipper of production from the OCS open and nondiscriminatory access to
a pipeline. The complaint procedures would include an explanation of
the process that MMS would use to determine whether violations of the
requirements of the OCSLA have occurred, and to remedy these
violations. This part also would provide alternative informal means of
reconciling pipeline access disputes through either Hotline-assisted
procedures or Alternative Dispute Resolution (ADR).
Section 291.101 What Definitions Apply to This Part?
This section would define terms applicable to this part.
MMS would not define ``open access'' or ``nondiscriminatory
access'' in this proposed rulemaking. Based upon the comments received
in response to the ANPRM and at the public meetings, MMS believes
``open access'' and ``nondiscriminatory access'' are fact-specific
terms and their application is best left to be determined during
adjudication of individual situations. MMS intends to apply a
reasonableness standard when deciding complaints alleging violations of
the OCSLA's open and nondiscriminatory access requirements. While a
reasonableness standard is inherently broad, it provides the
flexibility necessary to address the various and unique situations that
may arise. MMS believes that trying to encompass the plethora of
circumstances that could present themselves would result in a
definition that is unmanageable and would ultimately result in
resorting to exceptions to accommodate unforeseen circumstances. Like
FERC's ``comparability standard'' used for its electric ``open access''
and ``undue discrimination'' adjudications, MMS's reasonableness
standard may include comparability as an element when appropriate.
However, MMS is not bound by, and does not intend to necessarily base
its determinations of reasonableness on previous FERC decisions.
``Accessory'' would have the same definition as in 30 CFR part 250,
subpart J--i.e., a platform, a major subsea manifold, or similar subsea
structure attached to a right-of-way (ROW) pipeline to support pump
stations, compressors, manifolds, etc. The site used for an accessory
is part of the pipeline ROW grant. In the final rule, MMS may prescribe
a definition different than that in 30 CFR part 250, subpart J.
``Appurtenance'' would have the same definition as in 30 CFR part
250, subpart J--i.e., equipment, device, apparatus, or other object
attached to a horizontal component or riser. Examples include anodes,
valves, flanges, fittings, umbilicals, subsea manifolds, templates,
pipeline end modules, pipeline end terminals, anode sleds, other sleds,
and jumpers (other than jumpers connecting subsea wells to manifolds).
MMS is currently in the process of rewriting its regulations at 30
CFR part 250, subpart J. Those regulations are on a different schedule
than this effort. We are proposing to use the same definitions as in 30
CFR part 250, subpart J, in an effort to assure consistency between the
two rules and eliminate any ambiguities. In the final rule, MMS may
prescribe a definition different than that in 30 CFR part 250, subpart
J.
``FERC pipeline'' would mean any pipeline under the jurisdiction of
the Federal Energy Regulatory Commission under the Natural Gas Act, 15
U.S.C. 717-717z, or the Department of Energy Organization Act, 49
U.S.C. 60502. Although MMS believes it has jurisdiction over such
pipelines for purposes of OCSLA's open and nondiscriminatory access
requirement (see definition of ``OCSLA pipelines'' discussed below), it
is necessary to distinguish FERC pipelines because, as discussed
further below, MMS is proposing in this rulemaking to presume that FERC
pipelines provide open and nondiscriminatory access.
``Grantee'' would mean any person or assignee to whom MMS has
issued a pipeline permit, license, easement, right-of-way, or other
grant of authority for transportation of oil or gas on or across the
OCS under 30 CFR part 250, subpart J or 43 U.S.C. 1337(p), and any
person who has an assignment of a permit, license, easement, right-of-
way or other grant of authority, or who has an assignment of any rights
subject to any of those grants of authority. MMS is proposing this
definition because section 5(f) of the OCSLA requires that ``every
permit, license, easement, right-of-way or other grant of authority for
the transportation by pipeline on or across the outer Continental Shelf
of oil or gas shall require that the pipeline * * * provide open and
nondiscriminatory access to both owner and nonowner shippers.''
Therefore, persons to whom MMS has granted such rights, and their
assignees, would be grantees under the proposed rule, against whom
shippers could file a complaint.
When Congress enacted the Energy Policy Act of 2005, it amended the
OCSLA by adding subsection (p) to 43 U.S.C. 1337. (Energy Policy Act of
2005, section 388(a).) MMS has existing authority over all OCS
pipelines for
[[Page 17049]]
which it has already issued a pipeline permit, license, easement,
right-of-way, or other grant of authority for transportation of oil or
gas across the OCS. However, subsection 388(a) of the Energy Policy Act
of 2005 provides the Department of the Interior with additional
authority to grant new pipeline easements or rights-of way on the OCS
for transportation of oil or natural gas not already authorized by
statute.
``IBLA'' would mean the Interior Board of Land Appeals.
``OCSLA pipeline'' would mean oil or gas pipelines for which MMS
has issued a permit, license, easement, right-of-way, or other grant of
authority under 30 CFR part 250, subpart J or 43 U.S.C. 1337(p).
Again, this is the definition found in section 5(f) of the OCSLA
quoted above. Any such pipelines would be under the jurisdiction of
MMS. See also Williams Cos. v. FERC, 345 F.3d 910, 913-14 (D.C. Cir.
2003), wherein the court found that enforcement of the statutory
requirement ``would be at the hands of the obligee of the conditions,
the Secretary of the Interior (or possibly other persons that the
conditions might specify).''
In response to the ANPRM, MMS received a broad range of comments
regarding the Department of the Interior's (DOI) authority under the
OCSLA. Both shippers and service providers expressed opinions
concerning the actual authority granted to the DOI by the OCSLA. Areas
of concern included jurisdiction over production-related facilities on
offshore platforms; the regulation of pipelines subject to the Natural
Gas Act and the Interstate Commerce Act; the exemption of deepwater
ports from the OCSLA's open access requirements; the application of the
OCSLA to both oil and gas pipelines; and the spectrum of pipelines that
the DOI might regulate and whether any of these pipelines might be
exempted from regulation.
MMS believes that its authority to require that pipelines provide
open and nondiscriminatory access to both owner and nonowner shippers
extends to every pipeline transporting oil or gas on or across the OCS
under a permit, license, easement, right-of-way, or other grant of
authority, including leases. This includes right-of-way grantees,
lessees, pipeline owners, pipeline operators, and all of their
assignees, even when those pipelines are also regulated by FERC.
One commenter stated that it believes that pipelines associated
with deepwater ports are exempt from the open and nondiscriminatory
access requirements of OCSLA. MMS believes that the commenter is
correct in part. Our rationale is included in section III of this
preamble and discusses why pipelines under the Deepwater Port Act are
exempt from the pipeline access provisions of OCSLA.
``Outer Continental Shelf'' would have the same definition as in
the OCSLA, 43 U.S.C. 1331--i.e., all submerged lands lying seaward and
outside of the area of lands beneath navigable waters as defined in
section 2 of the Submerged Lands Act, 43 U.S.C. 1301, and of which the
subsoil and seabed appertain to the United States and are subject to
its jurisdiction and control.
``Party'' would mean any person who files a complaint, any person
who files an answer, and MMS. We are proposing to include MMS as a
party because under this proposed rule, MMS has both enforcement and
adjudicatory functions. It is not merely an impartial arbiter. For
example, if MMS orders remedial action, MMS will be in the best
position to defend that action.
``Person'' would mean an individual, corporation, government
entity, partnership, association (including a trust or limited
liability company), consortium, or joint venture (when established as a
separate entity).
``Pipeline'' would mean the piping, risers, accessories and
appurtenances installed for the purpose of transporting oil or gas.
The requirements outlined in this proposed rule are intended to
apply only to platforms and facilities directly related to the
transportation of oil and gas production. MMS believes that under the
plain language of OCSLA, production-related facilities on platforms,
which include processing equipment for separating and treating
production prior to transportation, are not covered by the open and
nondiscriminatory access provisions. Therefore, MMS would only include
appurtenances and accessories, as defined above, in the definition of
pipeline.
``Serve'' would mean personally delivering a copy of the document
to a person, or sending the document by U.S. mail or private delivery
services that provide proof of delivery (such as return receipt
requested). MMS is proposing that the party submitting a complaint as
well as the answerer to a complaint provide a copy of its submittal to
the other parties, including MMS. In order to provide proof of service
and timely processing, MMS is proposing that correspondence be
delivered by U.S. mail or private delivery services that provide proof
of delivery (such as return receipt requested). MMS is requesting
comments on whether there are other methods of delivery assurance that
MMS should consider, including electronic transmission.
``Shipper'' would mean a person who contracts or wants to contract
with a grantee or transporter to transport oil or gas through the
grantee's or transporter's pipeline.
``Transportation'' would mean, for purposes of this part only, the
movement of oil or gas through an OCSLA pipeline.
The ANPRM requested discussion concerning whether, for the purposes
of this rule, there is a need to define ``transportation'' and
``gathering'' differently than those terms are defined in MMS royalty
valuation regulations or FERC regulations. MMS is specifically
proposing to use this definition of ``transportation'' in this part
only to avoid any conflict with existing definitions of
``transportation'' or ``gathering'' in MMS's royalty valuation
regulations in 30 CFR part 206 or FERC regulations. MMS is not
proposing a definition of ``gathering'' in this proposed rule because
we believe that MMS has jurisdiction over all pipelines for which it
has issued a permit, license, easement, right-of-way, or other grant of
authority, whether or not those pipelines would be considered
``gathering'' lines under the FERC's regulations.
``Transporter'' would mean, for purposes of this part only, any
person who owns or operates an OCSLA oil or gas pipeline, for the
reasons discussed in the definition of ``transportation.''
Section 291.102 May I Call the MMS Hotline to Informally Resolve an
Allegation That Open and Nondiscriminatory Access Was Denied?
With respect to informal resolution of disputes, comments received
in response to the ANPRM generally recommended that MMS implement a
light-handed approach. Therefore, MMS is proposing in this section to
establish a toll-free Hotline to receive allegations of denial of open
and nondiscriminatory access, and to allow shippers and transporters to
request ADR in Sec. 291.103.
In the ANPRM, MMS requested discussion concerning the usefulness of
a Hotline to informally attempt to resolve shippers' and service
providers' concerns regarding perceived instances of open and
nondiscriminatory access violations. In general, shippers and service
providers endorsed the concept of a Hotline as an informal mechanism
for dispute identification and possible resolution. In this proposed
rule, MMS
[[Page 17050]]
would establish a Hotline to receive informal allegations of denial of
open access or discrimination in access in violation of the OCSLA. The
Hotline's primary purpose would be to gather facts, evaluate
allegations of denial of open access or discrimination in access, and
recommend resolution options, including alternative dispute resolution
(ADR).
Proposed Sec. 291.102 would allow a shipper to attempt to
informally resolve an allegation that it was denied open and
nondiscriminatory access by calling the MMS Hotline. You (the shipper)
could make the call to the MMS Hotline anonymously, and to the extent
permitted by law, the MMS Hotline staff would treat all information it
obtains as non-public and confidential. The proposed rule explains that
the MMS Hotline staff would informally seek information from you and
any grantee or transporter, as appropriate, and would attempt to
resolve disputes without formal complaint proceedings. MMS agrees with
commenters that the requirements for reporting a dispute using the
Hotline should be kept to a minimum. Required information would include
the location, pipeline, and a brief explanation of the reason(s) for
believing that open access has been denied or that discrimination in
access has occurred.
The MMS Hotline staff could provide information to you and give
informal oral advice. However, the advice given would not be binding on
MMS or DOI. You could terminate your use of the MMS Hotline procedure
at any time. If discussions assisted by the MMS Hotline staff were
unsuccessful at resolving the matter, you could file a formal complaint
under this part after notifying the MMS Hotline that you wish to file a
formal complaint.
Section 291.103 May I Use Alternative Dispute Resolution to Informally
Resolve an Allegation That Open and Nondiscriminatory Access Was
Denied?
Another informal option would allow the persons involved in the
dispute to agree to non-binding ADR at their expense. ADR may be
requested either by calling the MMS Hotline or by contacting the MMS
Associate Director for Policy and Management Improvement.
Under the proposed rule, either before or after a complaint is
filed, persons involved in a dispute could elect to use one of the
following to resolve their dispute:
A contracted ADR provider;
The DOI's Office of Collaborative Action and Dispute
Resolution (CADR); or
MMS employees trained in ADR facilitation techniques and
certified by the CADR.
ADR facilitation is a service that uniquely benefits the participants
by providing an opportunity for the participants to resolve their
dispute without incurring substantial litigation costs. Thus, MMS is
proposing to require participants in an ADR process to pay their
respective shares of all costs and fees associated with any contracted
or Departmental ADR provider.
MMS proposes to recover its costs for providing an MMS facilitator.
The costs of providing ADR facilitation are readily calculated and
tracked. Thus, MMS is proposing to require participants in an ADR
process to pay the actual costs of the service on a case-by-case basis.
These costs would include both direct and indirect costs. Direct costs
include such things as labor, material, and equipment. For example,
direct costs would include the costs of the facilitator's time and any
other MMS personnel time spent on related secretarial or other tasks.
In addition to direct costs, MMS would recover indirect costs, such as
rent and overhead. MMS would calculate indirect costs by applying to
the direct cost figure an indirect cost ratio already determined in its
accounting system.
Authority for cost recovery is provided by the Independent Offices
Appropriation Act of 1952, 31 U.S.C. 9701. This Act is a general law
applicable Government-wide, that provides MMS authority to recover the
costs of providing services to the non-federal sector. It requires
implementation through rulemaking. There are several policy documents
that provide guidance on the process of charging for service costs.
These policy documents are in the Office of Management and Budget
(OMB) Circular A-25, ``User Charges,'' and the Department of the
Interior Departmental Manual (DM), 330 DM 1.3 & 6.4, ``Cost Recovery''
and ``User Charges.'' The general policy that governs charges for
services provided states that a charge ``will be assessed against each
identifiable recipient for special benefits derived from federal
activities beyond those received by the general public'' (OMB Circular
A-25). The Departmental Manual mirrors this policy (330 DM 1.3 A.).
Section 291.104 Who May File a Complaint?
This section would explain who may file a complaint alleging a
violation of the requirements of OCSLA section 5(e) and (f) that
grantees and transporters provide open and nondiscriminatory access.
MMS would propose to limit the filing of a complaint to any shipper
who believes it has been denied open and nondiscriminatory access to an
OCSLA pipeline.
MMS intends to defer to the FERC on pipelines under the
jurisdiction of the Natural Gas Act or Interstate Commerce Act. This
deferral is based on MMS's presumption that because pipelines under the
Natural Gas Act and Interstate Commerce Act are regulated by the FERC,
``open access'' and ``nondiscriminatory access'' are being assured.
Therefore, MMS would not consider complaints regarding a FERC pipeline
that, for example, originates from a lease on the OCS and then
transports production onshore to an adjacent state.
MMS welcomes comments on the treatment of pipelines over which FERC
exercises its Natural Gas Act or Interstate Commerce Act jurisdiction.
Section 291.105 What Must a Complaint Contain?
This section would explain what a complaint must contain. In the
ANPRM, MMS requested comments on the type of complaints it might
receive. Review of the comments indicated that the types of complaints
MMS might receive generally fell into two categories: (1) Rate
discrimination and (2) denial of access. It became clear to MMS from
the statements at the public meetings and written comments to the ANPRM
that each complaint would be very fact-specific. Thus, MMS is not
proposing to define categories of complaints it might receive in this
proposed rulemaking. MMS would generally define a ``complaint'' to mean
a comprehensive written brief stating the legal and factual basis for
the allegation that a shipper was denied open and nondiscriminatory
access with supporting material.
Paragraph (a) would specify that a complaint must clearly identify
the action or inaction which is alleged to violate 43 U.S.C. 1334(e) or
(f)(1)(A). For example, in the case of rate discrimination, a shipper
would have to allege that it was discriminated against by being charged
a higher rate than other similarly situated shippers. General
statements of dissatisfaction with high rates would not suffice.
Paragraph (b) would require a complaint to explain how the action
or inaction violates 43 U.S.C. 1334(e) or (f)(1)(A)--i.e., how the
action or inaction denied the shipper open access or resulted in
discrimination in access.
Paragraph (c) would require a complaint to set forth how the action
or
[[Page 17051]]
inaction affects the complainant's interests. In particular, it would
require a complainant to make a good faith effort to quantify the
financial impact or burden (if any) created as a result of the action
or inaction. It also would require a complaint to explain other impacts
of the action or inaction, such as practical, operational, or other
non-financial impacts. This would be met by a statement of the harm the
denial of open access or discrimination in access caused the shipper.
Paragraph (d) would require a complainant to make a good faith
effort to quantify the financial impact or burden (if any) created as a
result of the action or inaction.
Paragraph (e) would require that the complaint request specific
relief or remedy. For a discussion of some of the specific remedies MMS
believes are available, see the discussion of Sec. 291.112 below.
Paragraph (f) would require that a complaint include all documents
that support the facts in the complaint. MMS expects a complainant to
provide all documents in its possession or which it can otherwise
obtain. These documents should include, at a minimum, the relevant
contracts and any affidavits necessary to support any particular
factual allegations.
In the ANPRM, MMS requested comments on whether interested parties
would be more likely to participate in one type of complaint resolution
process over another and what circumstances might affect this decision.
Based on the responses, as discussed above, MMS is proposing informal
processes to address disputes by utilizing an MMS Hotline process or
ADR discussed in Sec. Sec. 291.102-291.103, and a formal process to
address complaints described in this section and Sec. Sec. 209.106-
209.114 below.
With respect to the formal process that MMS is proposing, shipper
comments generally supported a formal regulatory process to address
complaints, and pipeline comments generally did not. Specifically, some
pipeline commenters questioned MMS's authority under the OCSLA to issue
regulations concerning complaint resolution. Those commenters believe
the OCSLA only provides for judicial review of such complaints under 43
U.S.C. 1349-1350.
MMS disagrees. The OCSLA specifically grants the Secretary of the
Interior the authority to ``prescribe such rules and regulations as may
be necessary to carry out the provisions of [the OCSLA].'' 43 U.S.C.
1334(a). Nothing in section 1349 or section 1350 limits that rulemaking
authority. Nor is there anything in section 1334(e) or (f) that exempts
those provisions from the general grant of rulemaking authority.
Moreover, based on comments received at the public meetings and in
response to the ANPRM, MMS believes a formal process is necessary to
assure that its decision to enforce the requirements of the OCSLA will
be followed, and to give both parties a reason to participate in the
informal process. Without the potential of some consequences, there is
no reason for a pipeline owner to participate in a voluntary or an
administrative process. Therefore, in Sec. Sec. 291.105-291.114, MMS
is proposing a formal complaint process.
In its consideration of the comments MMS received in response to
the ANPRM, MMS recognized other possible formal complaint resolution
processes. One of these would be to establish a process similar to the
process employed by FERC as set forth in 18 CFR part 385. This process
has the advantage of being familiar to both shippers and service
providers. However, a FERC-mirrored process would impose new
requirements on the DOI, including administrative hearing and appeals
requirements. MMS is requesting comments on this or other possible
variants.
Section 291.106 How Do I File a Complaint?
This section would explain the process for filing a complaint.
Paragraph (a) would explain that shippers filing complaints regarding
OCSLA pipelines must file complaints with the MMS Director. As
discussed above, decisions would be issued by the MMS Policy and
Management Improvement office (PMI). Paragraph (b) would provide that
the party filing the complaint must pay a nonrefundable processing fee
of $7,500 to MMS. Under paragraph (c), you would have to serve your
complaint on all parties named in the complaint. See discussion of
``Serve'' in the definitions section above.
Since MMS has not been involved in the processing of complaints of
this type, it is interested in comments regarding whether there should
be time limits placed on the filing of complaints following an action
by a grantee or transporter denying open and nondiscriminatory access.
MMS recognizes that the information necessary to effectively answer a
complaint may become stale or even non-existent. On the other hand,
should the mere passage of time be a limiting factor on whether a
shipper can submit a complaint? MMS is requesting comments on this
issue and may prescribe a time limit in the final rule.
Section 291.107 How Do I Answer a Complaint?
The proposed rule would provide that, after a complaint is filed,
those on whom a complaint was served could then submit a formal written
answer responding to the allegations in the complaint. Paragraph (a) of
this section would explain that if you have been served a complaint
under Sec. 291.106(b), you may file an answer to the complaint within
60 days of your receipt of the complaint. If you file your answer after
60 days of your receipt of the complaint, MMS would have discretion not
to consider your answer.
The proposed rule would explain in paragraph (b) that for purposes
of this part, an answer would mean a comprehensive written brief
stating the legal and factual basis refuting the allegation in the
complaint that you denied open access or nondiscriminatory access,
together with supporting material.
Paragraph (b)(1) would explain that you must attach a copy of the
complaint to your answer or reference the assigned MMS docket number.
This is to assist MMS in case management.
Paragraph (b)(2) would require the answer to explain why the action
or inaction alleged in the complaint does not violate 43 U.S.C. 1334(e)
or (f)(1)(A).
Paragraph (b)(3) would require answers to include all documents
that support the facts in the answer in possession of, or otherwise
obtainable by, the answerer, including, but not limited to, contracts
and any affidavits necessary to support factual allegations. MMS is
requesting comments on whether there is any other specific information
that the answer should include.
Paragraph (b)(4) would require that a copy of the answer be
provided to all parties named in the complaint including the
complainant.
Section 291.108 How Do I Pay the Processing Fee?
This section would provide that you must pay your processing fees
to the MMS Policy and Management Improvement office. Under paragraph
(a) you would have to pay the processing fee or seek a fee waiver or
reduction under Sec. 291.109. The party filing the complaint must pay
a nonrefundable processing fee of $7,500 to MMS.
You would be required to pay the nonrefundable processing fee by
Electronic Funds Transfer, unless you requested, and MMS authorized,
payment by check or an alternative method before the date the
processing
[[Page 17052]]
fee would be due. The payment would have to include various specified
forms of identification in order to properly account for the fee. We
request comments on the amount of the processing fee, payment by
Electronic Funds Transfer, and what form of identification should be
included with fees.
The Department's authority to recover its costs for the processing
of complaints involving offshore pipeline access is the Independent
Offices Appropriation Act of 1952, 31 U.S.C. 9701 (originally codified
at 31 U.S.C. 483a) (IOAA). ``Office of Management and Budget (OMB)
Circular No. A-25, 58 FR 38144 (adopted 1959; revised July 15, 1993),
establishes federal policy regarding user charges under the IOAA.''
Interior Solicitor Opinion M-36987 (December 5, 1996). Further, the
Department of the Interior Departmental Manual (DM) mandates cost
recovery for special services: ``Departmental policy requires * * *
that a charge, which recovers the bureau or office costs, be imposed
for services which provide special benefits or privileges to an
identifiable non-Federal recipient above and beyond those which accrue
to the public at large.'' Id. (quoting 346 DM 1.2 A.); Cf. Federal
Power Comm'n v. New England Power Co., 415 U.S. 345, 350 (1974)
(describing the OMB Circular test at 6.a.(4) when no charge should be
made as the proper construction of the IOAA). Thus, as part of this
proposed rulemaking, we analyzed a previously proposed appeals rule's
processing fees (that rule is discussed immediately below) for
reasonableness according to the factors in IOAA section 501(b), 31
U.S.C. 9701(b) and the guidance contained in the DM and OMB's Circular
No. A-25.
In promulgating regulations for similar processes (to complaints)
for appeals of MMS-issued orders, the October 28, 1996, proposed
appeals regulation also proposed payment of a processing fee. 61 FR
33607 (1996). Several comments to that proposed appeals rule questioned
MMS's authority to impose such fees. A similar concern logically exists
for the processing of complaints here, even though the public has not
yet had the opportunity to convey their comments. However, in addition
to the authority under the IOAA, the United States Court of Appeals for
the District of Columbia Circuit has upheld charging processing fees
for administrative appeals. Ayuda, Inc. v. Attorney General, 848 F.2d
1297 (D.C. Cir. 1988). See also, United Transportation Union-Illinois
Legislative Board v. Surface Transportation Board, No. 97-1038, 1997
U.S. App. LEXIS 37560, (D.C. Cir., Nov. 10, 1997) (decision published
in table case format without opinion, reaffirming Ayuda) (reported in
full text format at 1997 U.S. App. LEXIS 37560). In Ayuda the Circuit
Court held that processing fees for administrative appeals ``are for a
`service or thing of value' [under the IOAA, 31 U.S.C. 9701(a),] which
provides the recipients with a special benefit.'' 848 F.2d at 1301.
Unlike the circumstances and precedents established in Ayuda, the
party seeking compliance (the complainant) under this rule normally is
not the regulated party. However, there is no question that the
complainant receives a ``special benefit'' from the services performed
by MMS in processing the formal complaint. Therefore, this rule
proposes that the party filing the complaint will pay the fee. We
believe that this arrangement would fairly protect regulated parties
from frivolous complaints while it would also ensure compliance with
statutory and regulatory requirements. We request comments on the
proposed fee.
The four factors in the IOAA are ``(1) fair; and (2) based on--(A)
the costs to the Government; (B) the value of the service or thing to
the recipient; (C) public policy or interest served; and (D) other
relevant facts.'' The factors mirror four of the six ``reasonableness
factors'' contained in section 304(b) of the Federal Land Policy and
Management Act of 1976 (FLPMA), 43 U.S.C. 1734(b). The ``reasonableness
factors set out in FLPMA are: (a) ``Actual costs (exclusive of
management overhead);'' (b) ``the monetary value of the rights or
privileges sought by the applicant;'' (c) ``the efficiency to the
government processing involved;'' (d) ``that portion of the cost
incurred for the benefit of the general public interest rather than for
the exclusive benefit of the applicant;'' (e) ``the public service
provided;'' and (f) ``other factors relevant to determining the
reasonableness of the costs.'' Although the factors contained in FLPMA
apply only to onshore lands, because of the similarity between the
factors used under both statutes and of the open-ended ``other relevant
facts'' factor contained in IOAA, the Department believes that using
the factors contained in section 304(b) to determine fees is eminently
``fair'' under the authority of the IOAA.
For the reasons set forth above, MMS proposes to implement the IOAA
by applying each of the FLPMA factors for complaints processed under
this proposed rule. We first estimated the actual cost for processing
the complaint, and then considered each of the other FLPMA factors to
see if any of them might cause the fee to be set at less than actual
cost. We then considered whether any of the remaining factors acted as
an enhancing factor that would mitigate against setting the fees at
less than actual cost. We then decided the amount of the fee, which
cannot be more than the actual processing cost. This method results in
fees that are based upon the actual processing costs. Accordingly, for
formal pipeline access complaints, the fee is proposed to be set at
$7,500 and to be paid by the party filing the complaint.
Factor (a)--Actual Costs
Actual costs means the financial measure of resources expended or
used by MMS to process a complaint, including, but not limited to the
costs to research and write the MMS Director's decision or take any
other relevant action. Actual costs include both direct and indirect
costs, exclusive of management overhead. Section 304(b) of FLPMA
requires that management overhead be excluded from chargeable costs.
Because we are implementing the IOAA by applying the FLPMA factors,
management overhead costs are excluded from this analysis.
MMS calculated the direct cost component of the actual costs to
process a complaint by totaling agency expenditures for labor,
material, and equipment usage. Based on the time it now takes to
complete an appeals decision, we estimated the time it would take to
perform the various phases of the proposed complaint process. We then
multiplied the hours by $80, the average of MMS's personnel, material
and equipment usage costs.
MMS calculated the indirect cost component of actual costs by
dividing the indirect costs such as rent and overhead associated with
this process by the total program cost to arrive at an indirect cost
percentage of 18.5%.
MMS then multiplied the direct costs by 18.5% and added that figure
to its direct costs to determine its total actual costs. This method of
calculating costs is a generally accepted by both the public and
private sectors.
Our method of establishing actual costs involved estimating the
average cost of processing an individual complaint. We concluded that
while it might be possible to track costs and consider the
reasonableness factors on a case-by-case basis, doing so would be time
consuming and expensive.
MMS's costs to process a complaint under this proposed rule would
include the cost to consider the complaint in various phases at MMS.
The first phase
[[Page 17053]]
would be the MMS Policy and Management Improvement office performing
the following functions:
(1) Receiving and date stamping each document;
(2) Reviewing each complaint for completeness;
(3) Docketing the complaint by entering the information into a
computer-based tracking system;
(4) Preparing and sending an acknowledgment letter or a denial
letter as appropriate;
(5) Preparing a complaint file; and
(6) Reviewing each answer for completeness.
We estimated based on current processes that the average time to
complete this phase would be 4 hours.
The next phase would be researching and drafting the Director's
decision. We estimated the average staff-hours the Policy and
Management Improvement office currently spends on each appeal of MMS
orders (discussed above) that results in a decision by the MMS Director
to be 100 hours. However, unlike the current process where the appeals
analyst only reviews a Statement of Reasons, in this process, the
analyst would have to review a complaint and an answer, request
additional information, as necessary, and review that information. The
Policy and Management Improvement office also anticipates that
initially it will be necessary for that Division to consult with MMS's
Offshore Minerals Management program and Minerals Revenue Management
program as part of the decision-making process. This is because the
appeals analyst may need to use those programs' expertise to reach a
decision. Accordingly, MMS estimates that the additional time it will
need to process at least the first 5 complaints and answers, compared
with an appeal of MMS-issued orders, will be 40 hours, for a total of
140 hours for this phase.
Thus, the total estimated average hours for MMS to spend on these
phases is 4 hours for the docketing of the complaint and 140 hours for
the preparing the MMS Director's decision, for a total of 144 hours per
complaint. This estimate is based on current MMS time requirements for
completing similar tasks. Using an estimate of $80 per hour based on an
average of MMS's personnel, material and equipment-usage costs, we
estimate the average direct cost burden for these requests would be
$11,520 ($80/hour x 144 hours). MMS's indirect costs for the requests
is $2,131 per appeal (18.5% indirect cost rate x $11,520) resulting in
total estimated actual costs of $13,561 per average complaint.
Factor (b)--Monetary Value of the Rights and Privileges Sought
The monetary value of rights and privileges sought means the
objective worth of a complaint, in financial terms, to the complainant.
The value to a complainant is gaining open or nondiscriminatory access
to a pipeline if MMS determines that the complainant has been denied
open or nondiscriminatory access. See e.g., Ayuda Inc. v. Attorney
General, 848 F.2d 1297 at 1301 (1988) (value of having an incorrect
action corrected). However, the monetary value of having MMS remedy a
violation of OCSLA's requirement to provide open and nondiscriminatory
access will vary depending on the specific facts of each complaint,
which MMS cannot accurately estimate in advance of deciding any
complaints. Moreover, most complaints will decide a legal question
regarding what MMS believes is open access or discrimination that
imparts value to both shippers and transporters, so the monetary value
is not merely equal to the complainant's alleged loss. Therefore, we
rejected the idea of trying to calculate monetary value on a case-by-
case basis for purposes of determining whether to increase or decrease
the recovery of actual costs based on this factor. Instead, we have
determined that consideration of this factor should include an
examination of equitable considerations related to monetary value,
rather than precise figures. However, given the nature of these
complaints, we believe the monetary value to complainants of gaining
access or having discriminatory actions cease would be great.
A major equitable consideration is whether the level of cost
reimbursement could burden the complainant to such an extent that the
complaint would actually end up being of no monetary value to the
complainant whatsoever. However, because we are providing a mechanism
for fee waiver or reduction, and believe the monetary value of the
relief sought would be considerably greater than the cost of filing a
complaint in a vast majority of cases, we decided that this factor
should not cause fees to be set below actual costs.
Factor (c)--Efficiency to the Government Processing Involved
Efficiency to the Government processing means the ability of the
United States to process a complaint with a minimum of waste, expense,
and effort. Implicit in this factor is the establishment of a cost
recovery process that does not cost more to operate than is necessary,
and does not unduly increase the costs to be recovered. As noted in the
above section on actual costs, we have estimated the cost to the
government for the complaint process proposed in this rulemaking.
However, we believe it would be inefficient to determine an adjustment
factor to increase or decrease the recovery of actual costs on a case-
by-case basis.
The procedures that we would use to process a complaint would be
based on standardized steps for similar MMS transactions in order to
eliminate duplication and extraneous procedures. However, some
procedures would require processes in addition to those used under the
current appeals process. These additional processes were accounted for
under factor (a) above.
Factor (d)--Cost Incurred for the Benefit of the General Public
Interest
The cost incurred for the benefit of the general public interest
(public benefit) means funds the United States expends, in connection
with the processing of a complaint, for studies or data collection
determined to have value or utility to the United States or the general
public separate and apart from the document processing. It is important
to note that this factor addresses funds expended in connection with a
complaint. There is another level of public benefit that includes
studies which we are required, by statute or regulation, to perform
regardless of whether a complaint is received. The costs of such
studies are excluded from any cost recovery calculations from the
outset. Therefore, no reduction from costs recovered is necessary in
relation to these studies.
We concluded that the processing of a complaint would not as a rule
produce studies or data collection that might benefit the public to any
appreciable degree. Therefore, any possible benefits of such studies to
the public are balanced by their possible benefits to the complainant.
Accordingly, we made no adjustment to the fee recovered based on this
factor.
Factor (e)--Public Service Provided
Public service provided means direct benefits with significant
public value that are expected as a result of a complaint. This factor
is thus concerned with the benefit resulting from the ultimate decision
in the complaint, while the previous factor related to the benefits of
the document processing itself. Deciding a complaint provides a public
service because the primary function of the complaint process is to
ensure open and nondiscriminatory access as mandated by Congress in
[[Page 17054]]
sections 1334 (e) and (f)(1)(A). The value of the benefit to the public
is great because ensuring open and nondiscriminatory access encourages
production in new fields and prevents shut-in of existing wells. These
in turn would further Congress' stated purpose of expeditious and
orderly development of the OCS, 43 U.S.C. 1332, and the requirement
that lessees diligently produce oil and gas from the lease. 43 U.S.C.
1337(b)(4).
Furthermore, comments received from the County of Santa Barbara
stated that requiring open and nondiscriminatory access may decrease
environmental degradation. ``Santa Barbara's policies * * * require
equitable and nondiscriminatory access to onshore segments of pipelines
that carry offshore oil and gas * * *. Application of these policies
since the mid-1980's has substantially reduced the environmental
impacts that would occur if every offshore operator installed their
individual set of pipelines * * *.'' We agree. Therefore, we believe
there would be a public benefit from avoiding potential environmental
degradation. For these reasons, we decided that it was reasonable to
set fees below actual costs on the basis of this factor.
Factor (f)--Other Factors
The final reasonableness factor is other factors relevant to
determining the reasonableness of the costs. Under this factor, we
considered fees that other government entities charge for processing
similar complaints (see October 28, 1996, proposed rulemaking, 61 FR at
55609). Also, the paucity of anticipated complaints skews the
programmatic costs for individual complaints. As discussed above, it
will take the Policy and Management Improvement office an additional 40
hours to process at least the first 5 complaints and answers than to
process an appeal of a Minerals Revenue Management program order.
However, after the Policy and Management Improvement office develops
the expertise and case law, the time necessary to process a complaint
should decrease. Accordingly, the first 5 complainants would bear the
entire costs of the extra time necessary for the Policy and Management
Improvement office to develop the expertise. We believe that it is more
reasonable to spread those costs out over time, and, thus, reasonable
to set fees below actual costs based on this factor.
After considering all of the reasonableness factors, we concluded
that the factors of public service (e) and other factors (f) make it
reasonable to set the fees for filing a complaint at $7,500 instead of
at the actual costs. None of the other factors mitigate against setting
the fees at less than actual costs. Moreover, because the proposed fee
of $7,500 would meet the reasonableness factors of FLPMA, they would
also be fair under the IOAA.
We invite comments concerning the proposed processing fee.
Specifically, the MMS is requesting comments on the effect the proposed
fees could have on the filing of complaints.
Section 291.109 Can I Ask for a Reduced Processing Fee?
This section would allow complainants to request a fee waiver or
reduction. We invite comments regarding the advisability of including
procedures in the proposed rule for granting fee waivers or reductions.
We have included fee waiver and reduction provisions because we believe
that the payment of the $7,500 fee may cause undue hardship on small
independent oil and gas producers/shippers and thus impede their access
to the complaint process.
While waiver procedures for complaints and appeals exist in some
other agencies, they may not be applicable in instances such as this
where there is an informal processing-fee free Hotline alternative and
we have already reduced the fee to half of our actual costs. For
example, waiver provisions in Department of Transportation Surface
Transportation Board regulations apply to a fee schedule that includes
fees ranging up to $23,300 for the filing of a formal complaint 49 CFR
1002.2(c)-(f). See United Transportation Union-Illinois Legislative
Board versus Surface Transportation Board, No. 97-1038, 1997 U.S. App.
LEXIS 37560, (D.C. Cir. Nov. 10, 1997) (upheld a Surface Transportation
Board fee for handling appeals, in part, because it ``provided a waiver
mechanism for fees that would cause undue hardship''). Therefore, we
invite comment on whether we should retain a fee waiver or reduction
provision.
Section 291.110 Who May MMS Require To Produce Additional Information?
The ANPRM requested comments on whether MMS could achieve its
mandate of assuring open and nondiscriminatory access in the absence of
routine information collection and the dissemination of some or all of
that information. The comments received varied widely. Some commenters
stated that the OCSLA does not provide MMS with the authority to
require reporting. Others believed that MMS should implement the same
type of information collection that the FERC had mandated in Orders 639
and 639-A.
MMS believes that without knowing the specifics of the number and
type of instances of violations of the open and nondiscriminatory
access requirements, the routine submittal of information is not
justified at this time. In addition, MMS is not proposing to include
reporting requirements because, if a shipper alleges discrimination in
a complaint against a pipeline, it will need to provide documentation
supporting that allegation. Likewise, it will be in a pipeline's best
interest to provide documentation refuting the shipper's allegations of
discrimination. Finally, because MMS is not defining ``open access'' or
``nondiscriminatory access'' in the rulemaking, and because MMS
believes complaints extend beyond rate issues, MMS anticipates that it
will not need the majority of information FERC was gathering under
Orders 639 and 639-A. Therefore, in the proposed rule, MMS does not
propose any reporting requirements by service providers operating
pipelines on the OCS similar to what the FERC imposed in Orders 639 and
639-A.
Rather, in paragraph (a) of this section, the proposed rule would
allow MMS to require any lessee, operator of a lease or unit, shipper,
grantee, or transporter (whether it is a shipper or not) to provide
additional information that MMS believes is necessary to make a
decision on whether open access or nondiscriminatory access was denied.
MMS welcomes comments on whether it should be able to require
information from persons who are not parties.
Paragraph (b) would provide for enforcement of such requests if a
party fails to provide additional information MMS requests under
paragraph (a). Enforcement could include the assessment of civil
penalties under 30 CFR part 250, subpart N, and dismissal of a
complaint or factual findings adverse to a party on factual issues to
which the information sought is relevant.
Paragraph (c) would provide for enforcement of such requests if a
lessee, operator of a lease or unit, shipper, grantee, or transporter,
that is not a party fails to provide additional information MMS
requests under paragraph (a). Enforcement may result in the assessment
of civil penalties under 30 CFR part 250, subpart N.
Section 291.111 How May I Request That MMS Treat Information I Provide
as Confidential?
This section would allow any person who provides documents to MMS
under
[[Page 17055]]
this part to claim that some or all of the information contained in the
particular document is confidential. Confidentiality under this section
would include documents that are exempt from disclosure under the
Freedom of Information Act (FOIA), 5 U.S.C. 552, or protected by the
Trade Secrets Act, 18 U.S.C. 1905, or otherwise exempt by law from
public disclosure.
In the ANPRM, MMS requested comments on how it should treat any
collected information. MMS believes that in order to encourage
participation in informal complaints, it is necessary to treat all
submitted information as confidential to the extent allowed by law.
Conversations with FERC reinforced this belief. With respect to
information submitted during the formal complaint resolution process,
MMS is proposing the submittal of complete and redacted versions of
information in order to maintain the confidentiality of information
when appropriate if a party requests that information be kept
confidential and explains why it should be treated as confidential.
MMS is proposing to retain the right to determine whether any claim
of confidentiality is required by law. MMS would notify the person
claiming confidentiality of its determination and to the extent
permitted by law, would provide an opportunity to respond prior to any
public disclosure.
Section 291.112 How Will MMS Decide Whether a Grantee or Transporter
Has Provided Open and Nondiscriminatory Access?
The MMS Director would review the pleadings and issue a decision
including appropriate remedial actions as discussed below.
MMS's Royalty-in-Kind (RIK) production marketing process includes
negotiating rates for transportation. Some of that transportation will
likely occur on pipelines subject to this rulemaking and presents the
possibility that the RIK division may file a complaint. As discussed
above, this raises the question of whether MMS, as a shipper of RIK
production, can fairly decide other shipper's appeals alleging
violations of the open and nondiscriminatory access provisions of
OCSLA. See the discussion in Section II that concludes that MMS can
fairly decide other shipper's appeals.
Section 291.113 What Actions May MMS Take To Remedy Denial of Open and
Nondiscriminatory Access?
If the MMS Director decides under Sec. 291.111 that the grantee or
transporter has not provided open and nondiscriminatory access, then
the decision would describe the actions MMS would take to remedy the
denial of access. Actions MMS could take include ordering grantees and
transporters to provide open and nondiscriminatory access to the
complainant and assessing civil penalties of up to $10,000 per day
under 30 CFR part 250, subpart N, for failure to provide open and
nondiscriminatory access. Penalties would begin to accrue 60 days after
the grantee or transporter received the order to provide access under
this paragraph. The proposal also would allow MMS to request that the
Department of Justice institute civil actions for a temporary
restraining order, injunction, or other appropriate remedy to enforce
the open and nondiscriminatory access requirements of 43 U.S.C. 1334(e)
and (f)(1)(A), or to forfeit the right-of-way grant under 43 U.S.C.
1334(e).
Section 291.114 How Do I Appeal to the IBLA?
MMS is proposing to allow any party adversely affected by a final
decision of the MMS Director under this part to appeal to IBLA under
the procedures provided in 43 CFR part 4, subpart E.
Section 291.115 How Do I Exhaust Administrative Remedies?
MMS is proposing to allow appeals to IBLA. If the MMS Director
issues a decision, and does not expressly make the decision effective
upon its issuance, then a party would need to appeal the decision to
IBLA in order to exhaust administrative remedies. On the other hand, if
the MMS Director expressly makes the decision effective upon issuance
or if the Assistant Secretary for Land and Minerals Management issues
or concurs in a decision under this part, then that is the Department's
final decision. No further appeals would be needed to exhaust your
administrative remedies, and none would be available.
III. Jurisdiction Under the Deepwater Port Act
The Deepwater Port Act of 1974 defines a deepwater port as
including ``all components and equipment, including pipelines, pumping
stations, service platforms, buoys, mooring lines, and similar
facilities to the extent they are located seaward of the high water
mark.'' 33 U.S.C. 1502(9) (emphasis added). Under 33 U.S.C. 1503(b),
the Secretary of Transportation ``issue[s] a license for the ownership,
construction, and operation of a deepwater port''--including pipelines.
Although the Secretary of the Interior, through MMS, issues a right-of-
way across the seabed for a pipeli
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