Revisions to Auxiliary Installations, Replacement Facilities, and Siting and Maintenance Regulations, 70056-70069 [2014-27907]

Download as PDF 70056 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations raincheck at all, and the defense is not available to it.50 Similarly, a store that offers a ‘‘raincheck’’ that expires before the store restocks the advertised item cannot use the defense. The raincheck must provide ‘‘compensation equal to that of the advertised savings.’’ 51 A raincheck that expires before consumers can use it has no value, much less value equal to the advertised savings. Therefore, it is not a ‘‘raincheck’’ at all. These clear requirements are consistent with the purpose of the ‘‘raincheck’’ defense.52 The defense protects consumers’ ability to purchase items at advertised sale prices without ‘‘needless transportation cost[s].’’ 53 Using a raincheck, a consumer can purchase an item at the sale price during the consumer’s next trip to the store, thereby avoiding extra travel time or expenses. Failing to offer rainchecks at the time it cannot make advertised products readily available to consumers, such as when a store refuses to provide rainchecks until a sale ends, would require consumers to make additional trips and pay extra travel costs, thereby undermining the purpose of the Rule.54 C. Consequential Costs From Unavailability Four comments noted that consumers may not realize all savings even when offered rainchecks or comparable merchandise under the defenses in paragraphs 424.2(b), (c), or (d) of the Rule.55 For example, promotions such as ‘‘Register Rewards’’ or coupon doubling may expire before consumers can use rainchecks, or manufacturers’ coupons may not apply to similar products offered under the defense in 16 CFR 424.2(c). Therefore, these comments proposed amending the Rule to require retail food stores to compensate consumers for consequential costs caused by unavailability.56 The record, however, does not contain evidence regarding the nature or extent of any such consequential losses. Nor does it contain evidence to support a factual determination regarding the potential costs or benefits of amending the Rule to require compensation for consequential costs from unavailability. Consequently, the Commission does not propose amending the Rule at this time to require compensation for consequential losses. VII. Conclusion wreier-aviles on DSK4TPTVN1PROD with RULES CFR 424.1. 51 Rule Amendment, 54 FR at 35463. 52 To the extent that there is any ambiguity about the meaning of ‘‘raincheck,’’ it is proper to interpret the term consistently with the purpose of the Rule. See Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 455 (1989). 53 Notice of Proposed Rulemaking, 50 FR at 43230. See also Id. at 43225 (‘‘the Rule could produce benefits by saving shoppers an extra trip back to the same store or to another store to purchase the advertised item (the ‘trip gain’).’’); Rule Amendment, 54 FR at 35459 (the Rule benefits consumers ‘‘through the avoidance of trip losses (‘the trip gain’), which are losses that result from the expense of wasted trips to retail outlets for advertised items that are unavailable.’’); Id. at 35463 (‘‘Savings that have been realized by consumers [from the Rule] are principally the result of reduction in the number of unsuccessful trips made to purchase items that are not in stock.’’). 54 Cosser, Dexter, Lewis, Wright, Ickes, Heiser, Cummings, John K, Rasley. 55 Cummings, Boyd, Thorson, Ickes. VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 [FR Doc. 2014–27798 Filed 11–24–14; 8:45 am] BILLING CODE 6750–01–P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 2, 157, and 380 [Docket No. RM12–11–002; Order No. 790–A] For the reasons described above, the Commission has determined to retain the current Retail Food Store Advertising and Marketing Practices Rule, issue a Rule amendment correcting a typographical error,57 and cease publishing dissents to the Rule’s previous amendment.58 Revisions to Auxiliary Installations, Replacement Facilities, and Siting and Maintenance Regulations List of Subjects in 16 CFR Part 424 SUMMARY: Advertising, Foods, Trade practices. For the reasons set forth in the preamble, the Federal Trade Commission amends 16 CFR part 424, as follows: PART 424—RETAIL FOOD STORE ADVERTISING AND MARKETING PRACTICES 1. The authority citation for part 424 is revised to read as follows: ■ Authority: 15 U.S.C. 41–58. § 424.1 [Amended] 2. Amend § 424.1 by removing the words ‘‘In connection with the sale of offering for sale’’ and adding, in their place, the words ‘‘In connection with the sale or offering for sale’’. ■ § 424.2 50 16 By direction of the Commission. Donald S. Clark, Secretary. [Amended] 3. Remove the two statements that follow the text of § 424.2(d). ■ 56 Thorson proposed amending the Rule to require retail food stores to ‘‘duplicate conditions at the time of the sale . . .’’ Thorson at 1. 57 Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a final rule without providing notice and an opportunity for public comment. The Commission has determined that there is good cause for making this technical correction final without prior opportunity for comment, because this is merely a technical change to correct a typographical error and is not a substantive change. 58 This will harmonize the Rule with the Commission’s normal practice, which is not to publish dissents in the Code of Federal Regulations. The dissents will remain available to the public at 54 FR 35468. PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 Federal Energy Regulatory Commission, Energy. ACTION: Final rule; order on rehearing and clarification. AGENCY: On rehearing, the Federal Energy Regulatory Commission (Commission) reaffirms its basic determinations in Order No. 790 and modifies and clarifies certain aspects of the Final Rule. Order No. 790 amended the Commission’s regulations to clarify that auxiliary installations added to existing or proposed interstate transmission facilities under the Commission’s regulations must be located within the authorized right-ofway or site for existing facilities or the right-of-way or site to be used for facilities proposed in a pending application for case-specific certificate authority or in a prior notice filing under the Commission’s blanket certificate regulations, and use only the same temporary work space that was or will be used to construct the existing or proposed facilities. Order No. 790 also codified the common industry practice of notifying landowners prior to coming onto their property to undertake projects, or certain replacements, or certain maintenance activities. DATES: This rule is effective January 26, 2015. FOR FURTHER INFORMATION CONTACT: Katherine Liberty, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502– 6491, katherine.liberty@ferc.gov. Gordon Wagner, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502– 8947, gordon.wagner@ferc.gov. Howard Wheeler, Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street NE., E:\FR\FM\25NOR1.SGM 25NOR1 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations Washington, DC 20426, (202) 502– 8688, howard.wheeler@ferc.gov. Shannon Jones, Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502– 6410, shannon.jones@ferc.gov. 70057 SUPPLEMENTARY INFORMATION: Table of Contents Paragraph numbers wreier-aviles on DSK4TPTVN1PROD with RULES I. Background .......................................................................................................................................................................................... II. Discussion .......................................................................................................................................................................................... A. Section 2.55(a) Auxiliary Facilities ........................................................................................................................................... 1. Commission’s Jurisdiction ................................................................................................................................................... 2. Section 2.55 Siting and Construction Limitations ............................................................................................................. 3. INGAA’s Response to the NOPR ......................................................................................................................................... 4. Compliance With Executive Orders .................................................................................................................................... B. Landowner Notification ............................................................................................................................................................. 1. Waiver of Five-Day Prior Notice ......................................................................................................................................... 2. Emergency Exemption to Notice Requirement .................................................................................................................. 3. Affected Landowners ........................................................................................................................................................... 4. One-Call Obligations ............................................................................................................................................................ 5. Burden Resulting From the Landowner Notification Requirement .................................................................................. C. Consistency With the Commission’s Regulations ..................................................................................................................... III. Information Collection Statement .................................................................................................................................................... IV. Environmental Analysis ................................................................................................................................................................... V. Document Availability ...................................................................................................................................................................... VI. Effective Date and Congressional Notification ............................................................................................................................... Final Rule—Order on Rehearing and Clarification 1. On November 22, 2013, the Federal Energy Regulatory Commission (Commission) issued a Final Rule in Order No. 790 that amended its regulations, effective February 3, 2014, to: (1) Clarify that auxiliary installations added to existing or proposed interstate transmission facilities under section 2.55 of the Commission’s regulations 1 must (a) be located within the authorized right-of-way or site for existing facilities or the right-of-way or site to be used for facilities proposed in a pending application for case-specific certificate authority or in a prior notice filing under the Commission’s Part 157 blanket certificate regulations, and (b) use only the same temporary work space that was or will be used to construct existing or proposed facilities; and (2) codify the common industry practice of notifying landowners prior to coming onto their property to undertake section 2.55 projects, certain Part 157, Subpart F replacements, or certain section 380.15 maintenance activities.2 2. The Commission received two requests for rehearing and clarification of the Final Rule, one filed by the Interstate Natural Gas Association of America (INGAA) and the other filed jointly by National Fuel Gas Supply Corporation and Empire Pipeline, Inc. (referred to collectively as ‘‘National CFR 2.55 (2014). to Auxiliary Installations, Replacement Facilities, and Siting and Maintenance Regulations, Order No. 790, 78 FR 72794–801 (Dec. 4, 2013), FERC Stats. & Regs. ¶ 31,351 (2013) (cross-referenced at 145 FERC ¶ 61,154 (2013)). Fuel’’). As discussed below, this order denies the requests for rehearing and grants and denies the requests for clarification. I. Background 3. Section 7(c)(1)(A) of the Natural Gas Act (NGA) requires a natural gas company to have certificate authorization for the ‘‘construction or extension of any facilities.’’ 3 To ‘‘avoid the filing and consideration of unnecessary applications for certificates,’’ 4 i.e., to save the time and expense that would otherwise be expended by companies and the Commission in undertaking a full, formal NGA section 7 certificate proceeding for every modification to a jurisdictional pipeline system, section 2.55 establishes that for the purposes of section 7(c), ‘‘the word facilities as used therein shall be interpreted to exclude’’ auxiliary and replacement facilities.5 Thus, while an auxiliary or replacement facility that qualifies for purposes of section 2.55 remains subject to the Commission’s NGA jurisdiction, it does not require an individual, facilityspecific section 7(c) certificate authorization. 4. Facilities that qualify under section 2.55(a) must be ‘‘merely auxiliary or appurtenant to an authorized or proposed pipeline transmission system’’ and installed ‘‘only for the purpose of obtaining more efficient or more 1 18 2 Revisions VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 3 15 U.S.C. 717f(c)(1)(A) (2012). of Applications for Certificates of Public Convenience and Necessity, Notice of Proposed Rulemaking, NOPR, 13 FR 6253, at 6254 (October 23, 1948). 5 18 CFR 2.55 (2014). 4 Filing PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 3 11 11 12 26 40 43 44 45 47 50 53 54 61 63 65 66 69 economical operation of the authorized or proposed transmission facilities,’’ such as ‘‘[v]alves; drips; pig launchers/ receivers; yard and station piping; cathodic protection equipment; gas cleaning, cooling and dehydration equipment; residual refining equipment; water pumping, treatment and cooling equipment; electrical and communication equipment; and buildings.’’ 6 A company must provide the Commission with at least 30 days prior notice if it plans to rely on section 2.55 to construct auxiliary facilities in conjunction with: (1) A project for which case-specific certificate authority has already been received but which is not yet in service; (2) a proposed project for which a case-specific certificate application is pending; or (3) facilities that will be constructed subject to the prior notice provisions of the Part 157, Subpart F blanket certificate regulations. 5. Section 2.55(b) permits companies to replace facilities that are or will soon be physically deteriorated or obsolete, so long as doing so will not result in a reduction or abandonment of service and the replacement facilities will have a substantially equivalent designed 6 Id. 2.55(a)(1). But for the inclusion of pig launchers/receivers in 1999, this list has remained unaltered since section 2.55 was put in place in 1949. Note that if a pipeline company wants to install any facilities specifically named in section 2.55(a)(1), but will not be installing them only for the purpose of obtaining more efficient or more economical operation of existing or proposed interstate transmission facilities, then the company cannot rely on section 2.55(a). See Algonquin Gas Transmission Company, 57 FERC ¶ 61,052 (1991); West Texas Gas, Inc., 62 FERC ¶ 61,039 (1993); and Natural Gas Pipeline Company of America, 114 FERC ¶ 61,061, at n.4 (2006). E:\FR\FM\25NOR1.SGM 25NOR1 70058 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations delivery capacity.7 All replacement facilities constructed under section 2.55(b) must be located within the existing facilities’ previously authorized right-of-way or on the same site as the facilities being replaced and must be constructed using the same temporary work spaces used to construct the existing facilities.8 Section 2.55(b) replacement projects can go forward without case-specific or blanket certificate authorization. However, companies must provide the Commission with 30 days prior notice before undertaking more expensive replacement projects.9 6. On April 2, 2012, INGAA filed a petition requesting that the Commission clarify that installations of auxiliary facilities under section 2.55(a) are not restricted to the rights-of-way and temporary work spaces used to construct the existing facilities that will be augmented by the auxiliary facilities.10 INGAA stated that it was seeking such clarification because Commission staff has stated in discussions with pipeline representatives and in industry meetings that companies undertaking section 2.55(a) auxiliary installations to augment existing facilities that are already in service must stay within the right-of-way or site for the existing facilities and restrict construction activities to previously used work spaces. INGAA disagreed with these constraints, arguing that section 2.55(a) activities had not been limited in this way in the past, and that Commission staff’s position amounted to rulemaking without the opportunity for notice and comment, contrary to the requirements of the Administrative Procedure Act (APA).11 Pursuant to section 385.207(a)(4) of the Commission’s Rules of Practice and Procedure, INGAA requested that the Commission confirm INGAA’s view that the siting and work space constraints stated by staff do not apply to section 2.55(a) auxiliary installations. 7. On December 20, 2012, the Commission issued a NOPR proposing 7 18 CFR 2.55(b) (2014). 2.55(b)(ii). 9 The requirement that a company give at least 30 days prior notice to the Commission before commencing a replacement project applies if the project will exceed the current cost limit for projects automatically authorized under the Part 157 blanket certificate regulations. However, unlike the blanket certificate regulations, section 2.55 places no cost limits on auxiliary installations or replacement projects that qualify under that section. 10 On May 2, 2012, MidAmerican Energy Pipeline Group (which includes Kern River Gas Transmission Company and Northern Natural Gas Company) filed a motion to intervene and comments in support of INGAA’s petition. 11 5 U.S.C. 553 (2012). wreier-aviles on DSK4TPTVN1PROD with RULES 8 Id. VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 to revise section 2.55(a) to clarify that, as with section 2.55(b), all projects must take place within a company’s authorized right-of-way or facility site and use only previously approved work spaces. In addition, the NOPR proposed to add a 10-day landowner notification requirement for section 2.55 auxiliary and replacement facilities and for section 380.15 maintenance activities.12 8. On November 22, 2013, the Commission issued the Final Rule to revise its regulations to clarify that all section 2.55(a) auxiliary installations added to existing or proposed interstate transmission facilities must be located within the authorized right-of-way or site for the existing or proposed facilities and use only the same temporary work space used to construct the existing or proposed facilities. In addition, the Final Rule adopted regulations to provide a landowner with notice at least five days prior to commencing an auxiliary or replacement project under section 2.55 or a maintenance activity under section 380.15 that causes a ground disturbance on the landowner’s property. 9. On December 23, 2013, INGAA and National Fuel each filed a request for rehearing of the Final Rule’s determination that all auxiliary installations added to existing or proposed interstate transmission facilities must be located within the authorized right-of-way or site for the existing or proposed facilities and use only the same temporary work space used to construct the existing or proposed facilities. 10. In regard to the Final Rule’s landowner notification requirements, INGAA and National Fuel request that the Commission clarify that: (1) The landowner notification requirements may be waived with the landowner’s consent; (2) the provision that enables companies to waive the landowner notification requirements for ‘‘activities required to respond to an emergency’’ includes activities done for safety, U.S. Department of Transportation (DOT) compliance, or environmental or unplanned maintenance reasons; (3) the landowner notification requirement does not apply when a pipeline company is required on short notice to 12 Revisions to Auxiliary Installations, Replacement Facilities, and Siting and Maintenance Regulations, NOPR, 78 FR 679, at 683 (Jan. 4, 2013), FERC Stats. & Regs. ¶ 32,696 (2012) (cross-referenced at 141 FERC ¶ 61,228 (2012)). While section 380.15 covers siting, construction, and maintenance, our existing regulations already have notification requirements in place applicable to siting and construction; consequently, the additional prior notice requirement described in the new section 380.15(c) will apply exclusively to maintenance activities. PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 mark its facilities on a landowner’s property because the landowner or a third party will be digging near the pipeline company’s facilities; and (4) the landowner notification does not apply to landowners whose property is crossed en route to a proposed grounddisturbing maintenance activity, or to areas located entirely within the fence line of an existing, above-ground facility site. II. Discussion A. Section 2.55(a) Auxiliary Facilities 11. The Final Rule revised the Commission’s regulations to clarify that all section 2.55(a) auxiliary installations added to existing or proposed interstate transmission facilities must be located within the authorized right-of-way or site for the existing or proposed facilities and use only the same temporary work space used to construct the existing or proposed facilities. 1. Commission’s Jurisdiction 12. INGAA persists in its contention that section 2.55(a) facilities are beyond the Commission’s jurisdiction. This is a fundamental misreading of this regulatory provision’s intent and application. 13. In 1949, Order No. 148, by ‘‘amendment of general rules and regulations governing the filing of applications for certificates of public convenience and necessity under section 7(c),’’ 13 added section 2.55 to our regulations to permit the construction and operation of auxiliary, replacement, and delivery point facilities without the need to obtain individual certificates for such facilities.14 INGAA maintains that ‘‘[i]n Order No. 148, the Commission distinguished between jurisdictional facilities necessary for the transportation of natural gas in interstate commerce and nonjurisdictional installations.’’ 15 The Commission did not. What the Commission did, as explained in the NOPR prior to Order No. 148, was ‘‘to permit natural-gas companies subject to the jurisdiction of the Commission’’ to add a restricted set of facilities to, and replace parts of, an existing system ‘‘without further authorization from the Commission . . . to avoid the filing and 13 Filing of Applications for Certificates of Public Convenience and Necessity, 14 FR 681 (February 16, 1949). 14 Section 2.55(c), which describes new delivery points, was subsequently removed by Order No. 148–A, 49 FPC 1046 (1973). Delivery points are now included among the facilities that may be constructed and operated pursuant to blanket certificate authority. See 18 CFR 157.211 (2014). 15 INGAA’s Request for Rehearing at 22. E:\FR\FM\25NOR1.SGM 25NOR1 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations consideration of unnecessary applications for certificates.’’ 16 (Emphasis added.) Order No. 148 accomplished this by deeming that ‘‘[f]or the purposes of section 7(c),’’ i.e., with respect to the section of the NGA which requires that natural gas companies obtain prior certificate authorization to construct or acquire jurisdictional facilities, ‘‘the word ‘facilities’ as used therein shall be interpreted to exclude’’ auxiliary, replacement, and delivery point facilities.17 In other words, to reduce the burden on the industry and to aid our own administrative efficiency, the Commission allowed natural gas companies already holding section 7 certificate authorization for existing natural gas facilities to make limited modifications to those facilities without the need to first obtain separate, additional, case-specific certificate authorization for each modification. In the Final Rule, we compared section 2.55 to our later actions to enable companies to act without first submitting an individual certificate application, stating: wreier-aviles on DSK4TPTVN1PROD with RULES Section 2.55 is both a precursor and complement to our Part 157 blanket certificate program. By providing non-casespecific certificate authorization for limited classes of facilities, the section 2.55 and blanket certificate regulations permit companies to satisfy the requirements of section 7(c) without having to apply for individual case-specific certificates for each and every modification to their systems.18 14. Thus, Order No. 148 did not and could not remove jurisdictional facilities from our jurisdiction, but carved out a class of facilities in section 2.55 that could be added onto, or could replace, parts of a larger certificated system without the need for further review because the auxiliary or replacement facilities will be within the same rights-of-way and use the same work spaces that were reviewed by the Commission prior to construction of the existing facilities at that location. In describing the facilities authorized under section 2.55, Order No. 148 did not make any jurisdictional distinction among section 2.55(a) auxiliary installations, section 2.55(b) replacements, and section 2.55(c) delivery points, indicating all section 2.55 facilities share the same jurisdictional status. INGAA acknowledges that 2.55 replacement facilities are subject to our jurisdiction, stating: FR 6253–54 (October 23, 1948). FR 681. 18 Order No. 790, FERC Stats. & Regs. ¶ 31,351 at P 16. The facilities in question, both those being replaced and those doing the replacing once they are in service, are jurisdictional under NGA Section 7. The new replacement facilities once in service assume the certificated position previously occupied by the facilities being replaced. . . . The new facilities, just like the facilities that they replaced, are required to provide the pipeline’s previously certificated jurisdictional service. In addition, as replacements of existing facilities, Section 2.55(b) projects by definition and by their very nature involve an existing right of way.19 15. Section 2.55(a) auxiliary installations, which are limited to facilities that improve the operation of a jurisdictional system, have the same jurisdictional status as the undisputedly jurisdictional replacements. As stated in the Final Rule: All section 2.55 facilities are integrated into a larger interstate transmission system and serve no function other than to enable that system to perform its jurisdictional functions more efficiently or economically; just as the larger system is jurisdictional, the component parts of that system, including auxiliary facilities installed pursuant to section 2.55, are jurisdictional as well.20 Accordingly, the facilities identified in section 2.55 are permitted to be put in place pursuant to the certificate authorization of the pipeline system that they modify, and are consequently as jurisdictional as, and subject to the same constraints imposed upon, the system that they modify, including siting and workspace constraints. 16. INGAA argues that because Order No. 603 amended section 2.55(b) to explicitly state that replacements must use the same right-of-way and workspaces as the facilities being replaced, but did not amend section 2.55(a) to state the same with respect to auxiliary facilities, the Commission’s intent was to impose these restrictions on replacements alone. INGAA is incorrect in suggesting that it was not until Order No. 603 that the Commission viewed section 2.55 as limiting all construction activities under that section to existing, previously studied and approved rights-of-way. The Commission stated in Order No. 603 that ‘‘[c]urrent Policy requires that replacement facilities must be placed in the existing ROW’’; ‘‘we are not allowing additional ROW width under Section 2.55’’; and ‘‘we will continue to follow Commission policy and limit the pipeline’s use of property to construct 16 13 17 14 VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 19 INGAA’s Request for Rehearing at 39. No. 790, FERC Stats. & Regs. ¶ 31,351 at P 13 (footnote omitted). 20 Order PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 70059 facilities under Section 2.55 to the existing ROW.’’ 21 17. The discussion in Order No. 603 made clear that the Commission has always viewed all activities under section 2.55 as being limited to existing rights-of-way and facility sites. The Commission focused on section 2.55(b) in Order No. 603 because it was aware that some companies incorrectly viewed that section as providing authorization for them to undertake replacement projects using new, not previously studied rights-of-way, and thereby in theory, swap out large portions of their systems under section 2.55(b) with no limit as to project size and potential impacts.22 At the time, the Commission had no intimations of companies similarly relying on section 2.55(a) to place auxiliary installations in greenfield areas. Furthermore, the Commission still assumed that there was no need for companies to go outside existing rights-of-way to install section 2.55(a) facilities that are ‘‘merely auxiliary or appurtenant’’ to and ‘‘only for the purpose’’ of enhancing the operation of a pipeline’s other authorized facilities. It has been only relatively recently that Commission staff’s discussions with industry representatives and INGAA’s petition have made it clear that an explicit statement of siting limitations is also needed in section 2.55(a) to clarify that auxiliary installations also must stay within previously authorized boundaries. 18. Specifically, over the last several years, concerns about potential noncompliance with siting restrictions for auxiliary installations under section 2.55 have been conveyed by industry representatives and landowners to Commission staff. Although the concerns presented have not resulted in an enforcement action, staff has explained the spatial limitations on construction activities under section 21 Revision of Existing Regulations Under Part 157 and Related Sections of the commission’s Regulations Under the Natural Gas Act, Order No. 603, 64 FR 26572 at 26575; FERC Stats. & Regs. ¶ 31,073 at 30,784–85 (1999). 22 As discussed in the Final Rule, Order No. 603 was prompted by a company’s inappropriate reliance on section 2.55(b) to abandon 91 miles of pipeline and install new, larger-diameter pipeline, portions of which were placed outside the right-ofway of the abandoned pipeline. See Order No. 603, FERC Stats. & Regs. ¶ 31,073, at 30,783–84 (1999), and Order No. 790, FERC Stats. & Regs. ¶ 31,351, at P 17 (2013) (citing Arkla Energy Resources Company, 67 FERC ¶ 61,173 (1994) (Arkla), order on reh’g, NorAm Gas Transmission Company, 70 FERC ¶ 61,030 (1995) (NorAm)). Arkla was in the process of changing its name to NorAm at the time the Commission issued its order finding that Arkla’s replacement project did not qualify to go forward under section 2.55(b). Thus, Arkla sought rehearing under its new name, NorAm. E:\FR\FM\25NOR1.SGM 25NOR1 wreier-aviles on DSK4TPTVN1PROD with RULES 70060 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations 2.55(a) in response to inquiries by industry representatives and landowners and in presentations and conversations at public forums. In part, it was these statements by staff that motivated INGAA to submit its petition. 19. In addressing space limitations on auxiliary installations under section 2.55(a) in this rulemaking proceeding, we have responded as we did in Order No. 603 when we became aware that companies were improperly relying on section 2.55(b) to construct replacement facilities in new rights-of-way. In this proceeding, we confirmed the position we expressed in Order No. 603 that construction activities under section 2.55 are restricted to projects confined to the footprint of existing facilities or the right-of-way of other facilities proposed in a case-specific certificate application or under the prior notice provisions of the blanket certificate regulations, and revised our regulations to codify this clarification. Again, the fact that we did not take the opportunity in Order No. 603 to insert explanatory language in section 2.55(a) shows only that the focus of the Commission’s concern in 1999 was to address the identified issue of replacement facilities being installed outside existing rightsof-way, and was not, as INGAA contends, indicative of a deliberate intent by the Commission to apply spatial limitations to replacement projects but not to auxiliary projects. 20. INGAA relies on National Fuel Gas Supply Corporation v. FERC, 468 F.3d 831 (D.C. Cir. 2006) (National Fuel) to support its argument. In National Fuel, the D.C. Circuit remanded back to the Commission a final rule that extended the Commission’s Standards of Conduct regulations, which already applied to pipeline companies’ relationships with their marketing affiliates, to also apply to a pipeline company’s relationships with their nonmarketing affiliates (e.g., affiliated producers, gatherers, and processors). The court found no record evidence of a real problem, and explained that if the Commission chose on remand to rely solely on a theoretical threat, it would need to explain how the potential danger of improper communications between pipelines and entities other than their marketing affiliates justified the regulatory restrictions on their interactions and why the normal complaint process under NGA section 5 would not suffice.23 21. Our action here is not analogous to National Fuel, where the Commission sought to extend regulatory restrictions to new entities without documentation 23 National Fuel, 468 F.3d at 845. VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 of abuse. Here, we are not expanding our regulatory reach based on potential industry activities; instead, we are simply clarifying the existing bounds of the regulatory authority provided by section 2.55(a). Further, whereas the section 5 complaint process can adequately address the economic consequences of unfair competitive practices after the fact, irreparable and unnecessary environmental damage can result from companies’ relying on section 2.55 of the regulations to construct new facilities in areas that the Commission has not had an opportunity to environmentally review. 22. INGAA maintains that Order No. 603 describes auxiliary facilities as exempt from the Commission’s jurisdiction. In support of its position, INGAA points to CNG Transmission Corp.,24 in which the Commission stated that Order No. 603 ‘‘amends Section 2.55(a) to specifically identify pig launchers as non-jurisdictional auxiliary equipment.’’ 23. Order No. 603 admittedly refers to auxiliary facilities in a manner that might be misconstrued as deeming auxiliary facilities to be nonjurisdictional. However, Order No. 603’s discussion of auxiliary facilities opens with the statement that ‘‘Section 2.55 defines facilities that are excluded from the requirements of section 7(c) of the NGA and may, therefore, be constructed without additional certificate authority.’’ 25 No additional certificate authority is needed because section 2.55 can be relied upon to construct qualifying auxiliary and replacement facilities under the umbrella of the company’s certificate authority for the facilities being augmented or replaced. Thus, the ‘exemption’ provided by section 2.55 is not an exemption from NGA jurisdiction, but an exemption from the need to apply for additional casespecific certificate authorization or rely on blanket authorization under NGA section 7 for qualifying activities. The Commission’s failure to carefully choose its words in contexts where the jurisdictional status of pig launchers and other auxiliary facilities was not being challenged does not change the fact that all of the facilities addressed by section 2.55 are jurisdictional facilities. 24. INGAA accepts that replacement facilities ‘‘assume the certificated position previously occupied by the facilities being replaced,’’ but does not believe auxiliary facilities are subject to 24 87 FERC ¶ 61,324, at 62,259, n.7, reh’g denied, 89 FERC ¶ 61,047 (1999). 25 Order No. 603, FERC Stats. & Regs. ¶ 31,073 at 30,781 (emphasis added). PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 any certificate authority, and consequently characterizes section 2.55(a) and section 2.55(b) as representing ‘‘intrinsically different concepts.’’ 26 We find no intrinsic difference. The facilities described under section 2.55 serve to enhance the operation or update the facilities of an existing system. Section 2.55(a) auxiliary facilities must serve the purpose of making a system function more efficiently or economically, and section 2.55(b) replacements serve to improve reliability and safety. Thus, conceptually, section 2.55 auxiliary facilities and replacement facilities both serve the same purpose: They constitute relatively modest modifications to a system that do not alter the physical parameters of or services provided by the system. 25. INGAA maintains that in stating that section 2.55(a) auxiliary facilities are jurisdictional, the ‘‘Commission erred by not considering reasonable alternatives to its chosen policy and by not giving a reasoned explanation for its rejection of such alternatives.’’ 27 INGAA is correct that when embarking on a new regulatory initiative, we consider various alternatives before we act, and then provide a reasoned explanation for our choice of action. Here, however, in responding to INGAA’s petition requesting confirmation of its claim that auxiliary facilities are nonjurisdictional, we were not faced with a choice among policy alternatives; instead, we acted to correct a misunderstanding of the status of section 2.55 facilities by confirming that all such facilities are subject to the Commission’s jurisdiction under section 7 of the NGA. Thus, our response did not contemplate potential policy choices, but clarified the existing policy embodied in section 2.55 that provides for the installation of auxiliary and replacement facilities described in that section under the certificate authority that authorized the facilities being enhanced or replaced. This rulemaking proceeding may have served to remind some companies of the existing spatial limitations on the placement of auxiliary and replacement facilities under section 2.55, but has not added any new additional regulatory restrictions on where facilities may be constructed under section 2.55.28 26 INGAA’s Request for Rehearing at 39. at 13–14. 28 We have made policy changes to landowner notification requirements in this proceeding; however, these notification changes were made after considering alternatives and providing an explanation for the changes. 27 Id. E:\FR\FM\25NOR1.SGM 25NOR1 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations wreier-aviles on DSK4TPTVN1PROD with RULES 2. Section 2.55 Siting and Construction Limitations 26. On rehearing, INGAA reiterates its argument that Commission staff has been aware companies have been relying on section 2.55 to install auxiliary facilities outside existing rights-of-way in some instances, and that this claimed awareness on staff’s part supports INGAA’s position that our Final Rule’s regulatory revisions to clarify the right-of-way and workplace constraints on auxiliary installations constitutes a ‘‘change [to] what had been the plain and universal understanding of that provision for approximately 60 years.’’ 29 In support, INGAA cites two instances in which Commission staff issued a letter order that appears to acquiesce to a company’s plans to rely on section 2.55 to install auxiliary facilities outside an established right-ofway.30 INGAA also claims that based on the cited letter orders issued under delegated authority, members of the Commission’s staff were aware, when the Commission issued Order Nos. 603 and 603–A in 1999, that pipelines were making auxiliary installations outside existing rights-of-way and workspaces.31 27. In the situation underlying the first staff letter, a company sought casespecific certificate authorization to add a slug catcher (a facility to remove liquids from a gas stream) to an existing pipeline system.32 Staff determined no additional certificate authority was needed because the proposed slug catcher ‘‘is an auxiliary installation that would increase the efficiency and enhance the flexibility of operation with no apparent change in the capacity of the existing Terrebonne System.’’ 33 We reiterate our observation from the Final Rule that although the application for certificate authorization indicated that a portion of the proposed slug catcher would be located outside the existing right-of-way, there is ‘‘no indication that the location of the new facilities was taken into account in the one-page, twoparagraph staff letter,’’ and staff’s failure to recognize that some of the proposed facilities would be outside of the existing right-of-way appears to have been ‘‘an oversight that led to a wrong result, since locating any of the planned new auxiliary facilities outside the existing right-of-way should have 29 INGAA’s Request for Rehearing at 4. Request for Rehearing at 32. 31 Id. at 11 and 43. 32 Trunkline Gas Company, Docket No. CP84– 394–000, letter order signed by the Director of the Commission’s Office of Pipeline Regulation, dated May 25, 1984; FERC eLibrary Accession No. 19840601–0118. 33 Id. 30 INGAA’s VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 disqualified the project for purposes of section 2.55(a).’’ 34 28. The second instance concerns staff’s response to a proposal to install cathodic protection equipment. In a December 1997 letter, staff responded to a company’s description of a new project to add cathodic protection to an existing pipeline by reminding the company that because part of the project would be in a new right-of-way, the company could not rely on section 2.55(a), but would have to file a casespecific section 7 certificate application.35 In an April 1998 letter, staff responded to the same company’s description of what appears to be the same project, and finds it may proceed under section 2.55(a).36 As discussed in the Final Rule, these letters are not necessarily in conflict, because the company may have altered its proposed project in response to the first letter so as to comply with the right-of-way restriction. If not, then as we stated in the NOPR and Final Rule, the April 1998 letter did not reflect Commission policy correctly.37 29. INGAA finds our review of these letter orders to be ‘‘cursory and unconvincing,’’ and insists ‘‘that the existence of these delegated orders entirely undermines the Commission’s foundation for its Final Rule,’’ 38 which INGAA characterizes as a disingenuous claim that the Commission has not been aware that companies have been relying on section 2.55 to install auxiliary facilities outside existing rights-of-way. This characterization is incorrect and is also inconsistent with INGAA’s stated motive for submitting its petition, which was that members of the Commission’s staff were taking the position in discussions with industry representatives that section 2.55(a) only applies to auxiliary facilities installed in existing rights-of-way using previously approved work spaces.39 Further, while INGAA’s petition emphasized that some 34 Order No. 790, FERC Stats. & Regs. ¶ 31,351 at P 36. 35 Letter signed by the Director of the Commission’s Office of Pipeline Regulations, dated December 16, 1997; FERC eLibrary Accession No. 19971223–0120. 36 Letter signed by the Director of the Commission’s Office of Pipeline Regulation, dated April 3, 1998; FERC eLibrary Accession No. 19980408–0242. 37 NOPR, FERC Stats. & Regs. ¶ 32,696 at P 11, n.18 and Order No. 790, FERC Stats. & Regs. ¶ 31,351 at P 35. 38 INGAA’s Request for Rehearing at 32. INGAA also claims that based on the cited letter orders issued under delegated authority, members of the Commission’s staff were aware, when the Commission issued Order Nos. 603 and 603–A in 1999, that companies were making auxiliary installations outside existing rights-of-way and workspaces. Id. at 11 and 43. 39 INGAA’s April 2, 2012 Petition at 1. PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 70061 companies have relied in good faith on the misunderstanding that section 2.55(a) allows auxiliary facilities to be installed in new areas, INGAA’s petition did not identify and we are not aware of any specific instances where companies have disregarded the guidance offered by Commission staff. 30. In any event, our review of the two cited letter orders was sufficient to establish that if staff concluded in those situations that the companies could rely on section 2.55(a) to build auxiliary facilities outside the existing rights-ofway, then those particular staff interpretations were in error. While staff makes every effort to accurately reflect the Commission’s practice, procedures, policy, and regulatory requirements, staff’s statements of opinion and regulatory interpretations, as INGAA and the industry it represents are well aware, are not binding on the Commission. Further, neither of the two unpublished letter orders cited by INGAA explicitly articulates a policy of allowing section 2.55(a) facilities outside an established project boundary or has any other precedential value, and INGAA provides no other evidence to support what it claims is the ‘‘plain and universal understanding of [section 2.55(a)].’’ 40 We are unaware of any other staff opinions or issuances under delegated authority, much less any determinations by the Commission itself, that provide support for INGAA’s assertions that our Final Rule announced a sharp departure from prior Commission policy and imposed, rather than clarified, the spatial constraints on section 2.55(a) facilities. 31. In clarifying the spatial constraint for section 2.55 facilities, we commented in the Final Rule that absent such a constraint, companies could traverse and disturb unexamined areas. Specifically, we explained that our goal is to ensure that the authorization provided by section 2.55 does not inadvertently work to deprive the Commission of the opportunity to conduct an environmental review and impose appropriate mitigation measures in any situation where a company’s construction activities may have adverse environmental impacts. Thus, the regulations provide that even when all planned auxiliary facilities can be located entirely within an existing rightof-way, if a company plans to construct the auxiliary facilities in conjunction with other construction activities proposed in a case-specific certificate application or under the blanket certificate regulations’ prior notice provisions, the company may not 40 INGAA’s E:\FR\FM\25NOR1.SGM Request for Rehearing at 4. 25NOR1 wreier-aviles on DSK4TPTVN1PROD with RULES 70062 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations undertake the section 2.55 construction until the auxiliary facilities have been identified and considered by the Commission in its environmental review in the proceeding on the other proposed facilities and the other facilities have been authorized.41 32. INGAA replies that independent of the Commission’s requirements, companies must comply with environmental laws imposed by other federal and state authorities, and argues that in the past these other environmental laws have provided satisfactory environmental oversight of companies’ auxiliary installation projects outside existing rights-of-way.42 INGAA asserts, therefore, that there is no reason for the Commission to conduct NEPA reviews before companies undertake auxiliary installations involving construction activities that will disturb areas not previously studied by the Commission. 33. We have NEPA responsibilities with respect to construction activities that companies undertake based on Commission-granted authorization, and we cannot waive these responsibilities solely because other agencies may have complementary or overlapping NEPA responsibilities of their own. INGAA objects to what it describes as the Commission’s effort to limit the location of ‘‘auxiliary installations through arguments based on a different pipeline activity, the replacement of facilities,’’ and asserts that replacement and auxiliary ‘‘activities are materially different and historically have been treated differently by the Commission.’’ 43 However, while section 2.55(b) replacement projects are generally of a larger scale than section 2.55(a) auxiliary installations and thus are more likely to involve significant ground disturbance, many activities that can qualify for construction under section 2.55(a), for example, installation of pig launchers/receivers and cathodic protection equipment, can also involve significant ground disturbance, as well as visual, noise, and other impacts. Thus, if a company will need to use new right-of-way or other areas that have not been authorized by the Commission to construct auxiliary facilities, the company cannot proceed with the construction under section 2.55. Rather, the company must proceed under the Part 157 blanket certificate regulations or, if the project will not qualify under the blanket certificate regulations, then file an application for case-specific 41 18 CFR 2.55(a)(2)(ii) and (iii) (2014). See Order No. 790, FERC Stats. & Regs. ¶ 31,351 at P 50. 42 INGAA’s Request for Rehearing at 34. 43 Id. at 8. VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 certificate authorization. By way of comparison, whereas section 2.55 does not include environmental conditions because it does not provide any authorization for construction activities outside areas that have been or will be subject to the Commission’s environmental review, the blanket certificate regulations, which do contemplate such activities, include environmental conditions in section 157.206(b) requiring pipeline companies to comply, prior to commencing construction, with numerous environmental laws enforced by other agencies to ensure that sensitive environmental areas will not be adversely impacted by activities, including activities under the automatic provisions, that will involve ground disturbance or changes to operational air and noise emissions.44 Section 2.55(a) does not include such specific requirements because we did not contemplate that auxiliary facilities would be located outside of areas that either have been or will be subject to the Commission’s environmental study and any appropriate environmental mitigation measures. 34. Section 2.55 and blanket certificate authority embody two different types of certificate authorization. The certificate authority for auxiliary installations under section 2.55(a), which does not include any specific environmental conditions, derives from either (1) the certificate for the existing facilities to be augmented, and thus the auxiliary facilities can only use areas previously authorized by the Commission for the construction of the existing facilities, or (2) the certificate authority being sought by the company for other new facilities, in which case both the new facilities and the planned auxiliary facilities will be subject to an environmental review by the Commission. While blanket certificate authority can be relied upon to obtain new right-of-way and to use previously undisturbed areas, any blanket certificate construction that would involve ground disturbance or changes 44 Sections 157.206(b)(2)(i)–(xii) require that companies planning to undertake construction activities under Part 157 blanket certificate authority obtain, prior to commencing construction, any necessary permits or approvals from and comply with conditions imposed by the agencies charged with specific NEPA responsibilities under the Clean Water Act, Clean Air Act, National Historic Preservation Act, Archeological and Historic Preservation Act, Coastal Zone Management Act, Endangered Species Act, Wild and Scenic Rivers Act, National Wilderness Act, National Parks and Recreation Act, the MagnusonStevens Fishery Conservation and Management Act, and executive orders requiring evaluation of the potential effects of actions on floodplains and wetlands. PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 to operational air and noise emissions will be subject, as discussed above, to section 157.206(b)’s environmental conditions. In addition, we note that a company’s prior notice blanket certificate activities, even those that will be confined entirely to an existing rightof-way previously studied and authorized by the Commission, can be protested by staff based on environmental concerns, thus subjecting the proposal to additional review.45 35. In practice, we have highlighted the difference in section 2.55 and blanket certificate activities by rejecting companies’ reliance on section 2.55(a) to install facilities that do not meet the siting or function requirements, thereby requiring the companies to rely on blanket authorization or case-specific certification for such facilities.46 36. In seeking to bolster their position, commenters on the NOPR posited extreme situations, arguing for example, that since the Commission included ‘‘buildings’’ as an example of a 2.55(a) facility, and a new corporate headquarters cannot be constructed entirely within an existing pipeline right-of-way, the Commission could not have intended 2.55(a) facilities to be confined to existing rights-of-way. The Commission responded to this in the Final Rule by noting that a corporate headquarters is not a natural gas facility; thus, such construction does not require any certificate authorization under the NGA.47 On rehearing, INGAA turns its focus to communication towers, arguing that since they, like office buildings, may be located remotely from the pipeline; we should find that they, too, 45 See, e.g., Northwest Pipeline Corporation, 68 FERC ¶ 61,336, at 62,345–46 (1994) (Commission staff protested a construction proposal filed under the prior notice provisions, withdrawing the protest after its environmental concerns were addressed); Williams Natural Gas Company, 66 FERC ¶ 62,114 (1994) (following staff’s protest to Williams’ prior notice filing proposing to abandon 19 miles pipeline by removal, the Commission’s Director of the Office of Pipeline and Producer Regulation authorized the activity subject to Williams’ implementation of certain mitigation measures and environmental conditions); and Natural Gas Pipeline Company of America, 64 FERC ¶ 62,041 (1993) (Commission staff protested Natural’s prior notice filing proposing to abandon delivery taps, delaying authorization of the abandonment until Natural received a permit from the U.S. Environmental Protection Agency which included conditions addressing the disposal of material potentially contaminated with polychlorinated biphenyls). 46 See, e.g., Algonquin Gas Transmission Company, 57 FERC ¶ 61,052 (1991); West Texas Gas, Inc., 62 FERC ¶ 61,039 (1993); and Natural Gas Pipeline Company of America, 114 FERC ¶ 61,061 (2006). 47 Order No. 790, FERC Stats. & Regs. ¶ 31,351 at P 22 and n.39. E:\FR\FM\25NOR1.SGM 25NOR1 wreier-aviles on DSK4TPTVN1PROD with RULES Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations are exempt from Commission jurisdiction. We do not agree. 37. A communication tower constructed by an interstate pipeline company for the purpose of supporting equipment used to monitor (and possibly control) the pipeline system’s operation is a natural gas facility subject to our jurisdiction under the NGA. If the tower (or a building, or any facility or equipment which serves exclusively to make a pipeline’s operations more efficient or economical) can be installed within an existing (or proposed) authorized area, the company can proceed under section 2.55(a). However, if it will be located outside an authorized area, then that facility must be constructed under either blanket or case-specific certificate authority. Although some of the types of facilities named in section 2.55(a) have evolved significantly since 1949, the function of the named facilities remains the same: They are incidental additions to an interstate transmission system, dependent upon and integrated into that larger system. Further, section 2.55(a) describes qualifying facilities as ‘‘[i]nstallations . . . which are merely auxiliary or appurtenant to an authorized or proposed transmission pipeline system,’’ indicating that section 2.55(a) is only intended to apply to facilities that will be attached to or adjacent to the components of the system they support. When a company is able to construct facilities meeting this description in an area that has been or will be reviewed for environmental purposes by the Commission, then the company may proceed with such construction under section 2.55(a). However, it may be the case in many instances that a company will want or need to locate some of the auxiliary facilities specifically listed in section 2.55(a)—in particular, communication, pig launching/receiving, and cathodic protection equipment—in locations requiring the use of additional rights-ofway, larger easements, or temporary work spaces that have not been included previously in an environmental review performed by the Commission. In those situations, the companies will need to proceed under an alternative form of authorization (i.e., under a blanket or case-specific certificate).48 48 Our discussion here should provide adequate clarification for INGAA, which professes to be puzzled by our statement in the Final Rule that although ‘‘types of facilities are specifically listed in section 2.55(a) [this] does not mean that companies can necessarily rely in all instances on section 2.55(a) to install them.’’ Order No. 790, FERC Stats. & Regs. ¶ 31,351 at P 25. VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 38. National Fuel asks whether ‘‘improvements such as buildings, roads, and parking lots for central offices, field and other offices, warehouses, [and] equipment yards’’ can qualify under section 2.55(a).49 We clarify they can, provided they meet section 2.55’s location and function requirements. We note the Final Rule revised the section 157.202 definition of ‘‘eligible facility’’ to specify that auxiliary installations that will not qualify under section 2.55(a) because they will not satisfy that section’s location or work space constraints may qualify for authorization under a company’s blanket certificate. Companies will need to seek casespecific authorization for auxiliary facilities that are also not eligible for blanket authorization (e.g., facilities that would exceed the cost limits specified in section 157.208(d)). 39. Finally, we note that because section 2.55 facilities are constructed and operated under the certificate authorization for the facilities that they augment or replace, prior authorization under NGA section 7(b) is necessary before a pipeline company can abandon auxiliary and replacement facilities constructed under section 2.55. INGAA complains that we neglected to address the ‘‘burden of seeking such abandonment authority.’’ 50 The requirement for prior authorization under section 7(b) to abandon certificated facilities is statutory and cannot be waived by the Commission. Further, while section 157.202(b)(3) of the blanket certificate regulations states that for purposes of those regulations ‘‘‘Facility’ does not include the items described in section 2.55,’’ we explained in the Final Rule that section 157.202(b)(3) only prevents companies from relying on their Part 157 blanket certificates to undertake activities, i.e., the construction and operation of qualifying auxiliary and replacement facilities, that qualify under section 2.55.51 We clarify here that section 157.202(b)(3) of the blanket certificate regulations does not preclude a pipeline company from relying on its Part 157 blanket certificate and the abandonment authority provided by section 157.216 to abandon facilities constructed under section 2.55, provided the abandonment activity will meet the applicable environmental conditions and cost limits (i.e., the facilities to be abandoned could be constructed under the blanket certificate regulations’ current cost 49 National Fuel’s Request for Rehearing at 6. INGAA’s Request for Rehearing at 51. 51 See Order No. 790, FERC Stats. & Regs. ¶ 31,351 at P 46. 50 See PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 70063 limits, regardless of what the original construction costs may have been). We expect that activities to abandon most auxiliary facilities and many replacement facilities constructed under section 2.55 can satisfy these conditions, and thus enable companies to go forward with abandonments under section 157.216 of the blanket certificate regulations. 3. INGAA’s Response to the NOPR 40. INGAA objects to our treating its January 22, 2013 submission in response to the NOPR as a comment on the NOPR rather than as a request for rehearing of the underlying rejection of INGAA’s position regarding the scope of authority provided by section 2.55(a). 41. As described in the Final Rule and above, the NOPR was issued in response to INGAA’s petition requesting that we ‘‘affirm’’ that installations of auxiliary facilities under section 2.55(a) are not restricted to the rights-of-way and temporary work spaces used to construct the existing facilities that will be augmented by the auxiliary facilities. We declined to do so, explaining in the NOPR that the Commission has never viewed section 2.55(a) as providing any authorization for pipeline companies to construct auxiliary facilities outside areas subject to environmental review and authorization by the Commission. On January 22, 2013, INGAA file a pleading styled ‘‘Request for Rehearing.’’ However, while the Commission’s Office of the Secretary issued a tolling order (Order Granting Rehearing for Further Consideration) on February 20, 2013, such an order is not dispositive of the procedural posture of the underlying pleading (i.e., issuance of a tolling order in response to a submission styled as a request for rehearing does not constitute a finding by the Commission that rehearing indeed lies on the issues raised in the filing). 42. In this instance, as noted in the Final Rule, the Commission ultimately determined to treat the January 22, 2013 pleading as comments on the NOPR, explaining that the NOPR’s clarification of the existing scope of the authority bestowed by section 2.55(a) did not ‘‘effect any change [in our regulations]; rather, it articulated existing, longstanding constraints and obligations with respect to auxiliary installations. Because the NOPR does not constitute an instant Final Rule [as alleged by INGAA], we find no cause to consider requests for rehearing in response to the E:\FR\FM\25NOR1.SGM 25NOR1 70064 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations NOPR.’’ 52 The Commission’s procedural choice to issue a NOPR in response to INGAA’s petition and to treat its January 22, 2013 submission as comments rather than as a rehearing request did not deprive INGAA of any due process. Issuance of the NOPR provided INGAA the opportunity to present arguments that the Commission should amend section 2.55(a) to expand the scope of construction that can be done under that section. We also considered and responded to the concerns and arguments presented in INGAA’s January 22, 2013 filing in the Final Rule. Further, our issuance of the NOPR provided the notice and comment forum which INGAA urged was required before more rigorous enforcement of the section 2.55(a) locational restrictions. As explained in the Final Rule, we do not intend to look back in order to determine whether installation of auxiliary facilities prior to the effective date of the Final Rule conform to section 2.55(a) siting limitations or pursue any enforcement action with respect to any installations prior to the effective date of the Final Rule that do not conform to section 2.55(a) siting limitations, unless it comes to our attention that remedial environmental measures need to be taken.53 wreier-aviles on DSK4TPTVN1PROD with RULES 4. Compliance With Executive Orders 43. INGAA repeats its claim that our action is inconsistent with Executive Orders directing agencies to avoid unduly burdensome regulations.54 The impetus behind and function of section 2.55 is to reduce regulatory burdens by providing a means for companies to install facilities without the need to obtain blanket or case-specific certificate authorization and our clarification of its operation imposes no new burden. We acknowledged that some additional burden will be associated with new landowner notification requirements adopted by the Final Rule, but we found that the anticipated benefits justify this new regulation. Further, as discussed below, in response to comments on the landowner notification requirement adopted by the Final Rule, we significantly reduce the number of instances in which companies will be required to contact landowners before entering upon their properties. These revisions will substantially reduce the burden associated with providing prior 52 Order No. 790, FERC Stats. & Regs. ¶ 31,351 at n.19. 53 Order No. 790, FERC Stats. & Regs. ¶ 31,351 at P 50. 54 INGAA’s Request for Rehearing at 41. VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 notification. Finally, as previously observed, the Commission has directed staff to perform an internal assessment of the effectiveness of our regulations, as we are continually seeking to streamline our regulations in order to foster competitive markets, facilitate enhanced competition, and avoid imposing undue burdens on regulated entities or unnecessary costs on those entities or their customers.55 B. Landowner Notification 44. The Final Rule adopted regulations requiring companies to notify landowners prior to initiating auxiliary and replacement projects or maintenance activities to give landowners adequate notice (to the extent practicable) of a company entering onto their property in order to avoid potential conflict between landowners and gas companies. Specifically, the Final Rule added a new section 2.55(c) and revised existing section 380.15(c) to require a natural gas company to make a good faith effort to notify landowners at least five days in advance of commencing an auxiliary or replacement project or of any maintenance that will cause ground disturbance. The notice must include: (1) A brief description of the activity to be conducted or facilities to be added or replaced and the expected effects on landowners; (2) the name and phone number of a company representative who is knowledgeable about the project; and (3) a description of the Commission’s Dispute Resolution Division Helpline and its phone number, as explained in section 1b.21(g) of the Commission’s regulations. 1. Waiver of Five-Day Prior Notice 45. INGAA requests we clarify that so long as a company provides landowners with at least five days advance notice, landowners can waive all or part of the post-notice waiting period. INGAA states that allowance for the waiver would be similar to the landowner notice waiver provision under the blanket certificate regulations, which allows a company that has given a landowner notice of a project to proceed before the end of the required postnotice waiting period, provided the landowner gives written approval to do so.56 55 Order No. 790, FERC Stats. & Regs. ¶ 31,351 at P 44. 56 INGAA’s Request for Rehearing at 15 (citing 18 CFR 157.203(d)(1) (2014)). Section 157.203 of the Commission’s regulations requires companies to give landowners notice at least 45 days prior to commencing construction under its automatic blanket certificate authority. A landowner may waive the 45-day prior notice requirement in writing so long as notice has been provided. PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 46. We agree that landowners, once notified, should be allowed to waive any portion of the post-notice waiting period by giving written approval. Accordingly, we will modify sections 2.55(c) and 380.15(c) to permit landowners to waive the post-notice waiting period. 2. Emergency Exemption to Notice Requirement 47. The Final Rule provided that ‘‘[f]or activities required to respond to an emergency, the five-day prior notice period does not apply’’ under sections 2.55 and 380.15,57 reasoning that companies should not hesitate to undertake immediate action in an emergency situation. However, that any events that do not necessitate immediate access to system facilities would still be subject to a minimum five-day prior notice.58 48. INGAA and National Fuel request that we clarify the scope of the emergency exemption provided by sections 2.55(c) and 380.15(c) by revising those sections to be consistent with the language in section 157.203(d)(3) of the blanket certificate regulations.59 Specifically, section 157.203(d)(3) states that the requirement for prior notification to landowners does not apply when a company needs to initiate construction activities under section 2.55 or maintenance activities under section 380.15 done for safety, DOT compliance, or environmental or unplanned maintenance reasons that are not foreseen and that require immediate attention by the company.60 We will revise sections 2.55(c) and 380.15(c) as requested. However, the exemption from the requirement for prior notice to landowners is only intended to apply in unforeseen situations where a company needs to take immediate action to correct a sudden incompatibility with DOT safety requirements or to avoid imminent danger or harm to life, property, or the environment. Therefore, while many routine and scheduled activities are safety-related or necessary to maintain or come into compliance with DOT regulations, such routine, foreseeable, or scheduled activities are not emergencies, and are not exempt from the requirement for prior notice to landowners. 49. National Fuel asserts that if an emergency activity is exempt from the prior landowner notification requirements under section 2.55(c) or 57 Order No. 790, FERC Stats. & Regs. ¶ 31,351 at P 63. 58 Id. 59 INGAA’s Request for Rehearing at 16 and National Fuel’s Request for Rehearing at 3. 60 18 CFR 157.203(d)(3) (2014). E:\FR\FM\25NOR1.SGM 25NOR1 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations wreier-aviles on DSK4TPTVN1PROD with RULES section 380.15(c), there should be no need for a pipeline to rely on and comply with the provisions of Part 284, Subpart I, of the Commission’s regulations.61 We agree and clarify that when companies seek to act under section 2.55 or section 380.15(c), and need to act promptly to respond to an emergency, and are thus unable to provide landowners with at least five days advance notice, then the emergency nature of the action functions as a waiver of the prior notice requirement. Thus, provided that with the exception of prior notice, an emergency response action meets all other section 2.55 or section 380.15(c) requirements, a company may proceed under section 2.55 or section 380.15(c). However, any emergency response action that would not qualify under section 2.55 or section 380.15(c) (e.g., construction which would take place outside previously approved areas), would require a company to proceed under other emergency authority, such as Part 284, Subpart I. 3. Affected Landowners 50. The Final Rule stated that prior notification be provided to ‘‘affected landowners,’’ described in sections 2.55(c) and 380.15(c), as property owners that will be ‘‘directly affected (i.e., crossed or used), by the proposed activity, including all rights-of-way, facility sites (including compressor stations, well sites, and all aboveground facilities), access roads, pipe and contractor yards, and temporary work space.’’ 62 INGAA and National Fuel request that the Commission clarify that ‘‘affected landowners’’ only include landowners that will be subject to ground disturbance on their properties, and not landowners whose property is merely crossed and not otherwise disturbed.63 51. As proposed in the NOPR, section 2.55(c) and 380.15(c) would have required a company to give prior notification to all landowners whose property would be used or crossed. As proposed in the NOPR, sections 2.55(c) and 380.15(c) also would have required a company to give prior notification to owners of abutting properties and the owners of residences within 50 feet.64 However, in response to comments on the NOPR, the Final Rule revised sections 2.55(c) and 380.15(c) to state that companies are only required to give prior notification to the owners of those 61 National 62 Order Fuel’s Request for Rehearing at 4. No. 790, FERC Stats. & Regs. ¶ 31,351 at P 56. 63 INGAA’s Request for Rehearing at 16–17 and National Fuel’s Request for Rehearing at 4–5. 64 NOPR, FERC Stats. & Regs. ¶ 32,696 at P 30. VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 properties that are crossed or used when companies perform ground-disturbing activities.65 In response to INGAA’s and National Fuel’s comments, we find it is appropriate to further revise sections 2.55(c) and 380.15(c) to specify that companies must provide prior notice only to the owner of property used for a ground-disturbing activity, and not to landowners whose property is crossed en route to the site of that activity.66 52. INGAA and National Fuel also request that the Commission clarify that the five-day prior notice requirement does not apply when the grounddisturbing activity will occur entirely within the fence line of an existing above-ground facility site.67 In situations where a company’s facilities are located inside a fenced area on property that the company does not own but to which it has easement rights, we agree that a requirement of prior notice to the landowner is not necessary if all ground disturbance will be confined to within the fenced area, and we will revise sections 2.55(c)(1) and 380.15(c)(1) accordingly. When any ground disturbance caused by a company’s activities to install or replace equipment under section 2.55 or by equipment associated with maintenance activities under section 380.15 is confined inside the company’s fencedin easement areas, e.g., a compressor station or site used for pigging equipment, the activities do not present the same potentially hazardous situations or inconvenience to a landowner as ground-disturbing activities in an unfenced area, e.g., the replacement of pipe under the landowner’s driveway. However, even when companies’ ground-disturbing activities will be within their fenced-in easement areas, as a matter of courtesy, we encourage companies to give prior notice to landowners to the extent practicable. 70065 programs require companies to mark their facilities within 48 to 72 hours of receiving notification that a landowner or third party will be digging near natural gas facilities to prevent damage. Therefore, INGAA argues that a company cannot wait five days to comply with its ‘‘One Call’’ obligations.69 We agree that the ‘‘One Call’’ obligations do not fall under the Final Rule’s landowner notification requirements. This is because merely marking the location of buried natural gas facilities (typically with flags or spray paint) does not involve a ground disturbance. However, in the event a company’s response to a ‘‘One Call’’ request results in ground-disturbing activity to locate, relocate, or isolate any of its facilities,70 then the exemption provided in the prior notice provisions for emergency activities would apply. 4. One-Call Obligations 53. INGAA requests we clarify that the requirement for prior notice to landowners adopted by the Final Rule for activities under sections 2.55 and 380.15 does not apply to ‘‘One Call’’ obligations.68 INGAA states that such 5. Burden Resulting From the Landowner Notification Requirement 54. INGAA claims that we have not met our obligation to estimate the burden of the Final Rule’s notification requirement in a way that is not arbitrary or capricious, and then weigh the benefit of the rule against that burden.71 In this regard, National Fuel states that our use of an estimate based solely on the number of section 2.55(a) auxiliary installation activities performed each year (which, it points out, are construction activities) to derive a reasonable estimate of the number of ground-disturbing activities under section 2.55 and section 380.15 that would require landowner notification, is arbitrary and too low.72 55. To estimate the burden of the Final Rule’s section 2.55 and section 380.15 landowner notification requirements, Commission staff surveyed nine jurisdictional companies, and based on that sample, estimated that all 165 jurisdictional companies perform approximately 7,605 auxiliary installation projects each year under section 2.55(a), including activities that do not involve ground disturbance.73 While we recognize that the number of maintenance activities undertaken by a company may far exceed the number of its auxiliary installations, we believe 65 Order No. 790, FERC Stats. & Regs. ¶ 31,351 at P 56. 66 We note that this clarification does not exempt companies from complying with the terms of any existing easement agreements or any applicable state or local laws governing the use of or access to property not within a company’s rights-of-way or facility sites. 67 Id. 68 The ‘‘One Call’’ program is a service used by public utilities and some private sector companies (e.g., oil pipeline and cable television) to provide pre-construction information to contractors or other maintenance workers on the location of underground pipes, cables, and culverts. Similar utility-marking programs go by different names in different regions. 69 INGAA’s Request for Rehearing at 17. 70 National Fuel notes that ‘‘to determine and mark the precise location of its facilities . . . may require some excavation.’’ National Fuel’s Request for Rehearing at 3–4. 71 INGAA’s Request for Rehearing at 17–18. 72 National Fuel’s Request for Rehearing at 6. 73 Order No. 790, FERC Stats. & Regs. ¶ 31,351 at P 77 and n.115. PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\25NOR1.SGM 25NOR1 wreier-aviles on DSK4TPTVN1PROD with RULES 70066 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations ground-disturbing activities for maintenance purposes under section 380.15, like ground-disturbing activities to install auxiliary facilities under section 2.55(a) and replace facilities under section 2.55(b), are significantly fewer in number than the activities under those sections that do not involve ground disturbance. We also believe that ground-disturbing activities, including ground-disturbing maintenance, generally take advance planning.74 Further, companies have long been subject to the requirement to give landowners notice of certain planned activities, and therefore presumably already have the information, personnel, and other resources necessary to enable them to satisfy those other, long-standing landowner notification requirements. 56. In view of these considerations, we believe our estimate in the Final Rule of the total number of all companies’ annual auxiliary installations under section 2.55(a) that involve ground disturbance was reasonable, and that it also was reasonable to multiply that number by two to estimate the total annual number of activities—including all auxiliary installations under sections 2.55(a), replacement projects under section 2.55(b), and maintenance activities under section 380.15—that will involve ground disturbance and will therefore require prior notice to landowners. Further, we believe the reasonableness of our burden estimate in the Final Rule is also supported by the clarification in this order that ground-disturbing activities are exempt from the prior notice requirement in emergency situations and in situations where all ground disturbances will be confined entirely to areas within the fence line of an existing above-ground facility site. 57. National Fuel states that every year it performs ‘‘thousands’’ of grounddisturbing maintenance activities that will now require landowner notification.75 National Fuel fears that activities such as maintaining existing access roads and existing erosion control structures will require it to satisfy unduly burdensome landowner notification requirements.76 We recognize that some activities to maintain existing access roads (e.g., scraping to remove old asphalt and resurfacing) or existing erosion control structures (e.g., pushing back soil or rocks that were intended to prevent erosion) may not involve a significant amount of ground disturbance. 74 NOPR, FERC Stats. & Regs. ¶ 32,696 at P 39. Fuel’s Request for Rehearing at 6. 75 National 76 Id. VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 However, such activities require the use of bulldozers, backhoes, dump trucks and other equipment that can present safety hazards and cause inconvenience to landowners. Therefore, we will not exempt ground-disturbing activities under section 380.15 to maintain existing facilities from the landowner notification requirement. 58. While INGAA and National Fuel insist that we have underestimated the burden that the landowner notification will cause the industry, this assertion assumes that most jurisdictional companies were not already notifying landowners when work is to be performed on their property, whether such notification is required or not. 59. Section 157.6(d)(1) of the regulations requires applicants for casespecific certificate authority for construction projects to notify all landowners that will be affected by the project. Section 157.203(d) of the blanket certificate regulations requires that companies give landowners notice of all projects subject to those regulations’ prior notice provisions. Thus, companies likely have a database of landowners dating from the time many of their facilities were originally put in service. As discussed in the Final Rule, we believe most companies maintain and update these databases because, regardless of their size, they need to know (to enhance, replace, and maintain their facilities and to respond to emergencies) precisely where their rights-of-way lie, how to get to their facilities, and how to contact the owners of the properties on which their facilities are located.77 As also discussed in the Final Rule, companies need to periodically update landowner information to be able to comply with DOT’s Pipeline and Hazardous Materials Safety Administration’s (PHMSA) biennial reporting requirement.78 Therefore, to identify the landowners to notify, companies will not be starting from scratch, but instead should be able to rely on the landowner records previously compiled to satisfy the Commission’s and PHMSA’s notification requirements. Since PHMSA’s notification requirement is ongoing, a company’s efforts to update portions of its landowner database as needed to meet the section 2.55 and section 380.15 notice provisions can be expected to result in a corresponding reduction in the company’s efforts necessary to comply with PHMSA’s notification requirement. 77 See Order No. 790, FERC Stats. & Regs. ¶ 31,351 at P 79. 78 Id. PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 60. Further, comments on the NOPR call attention to some companies’ ongoing community relations programs, which like the required PHMSA report, serve to inform landowners of their plans for construction and maintenance activities in coming months.79 While these notifications generally do not include specific details regarding the work that may take place on a landowner’s property and only provide an approximate time period for when the work will be done, companies nevertheless have to identify landowners to send out these notifications. Companies should be able to use landowner lists developed in connection with community relations programs and in conjunction with compliance with PHMSA requirements as a basis for meeting the prior notice requirements of sections 2.55(c) and 380.15(c). In our burden estimate, we did not attempt to account for lists that companies may have on hand to send information to landowners as part of community relations or PHMSA compliance. C. Consistency With the Commission’s Regulations 61. INGAA requests that the Commission revise certain regulations to ensure regulatory consistency as a result of the Final Rule. INGAA notes that section 157.206(b)(1) of the Commission’s regulations for blanket certificate projects includes a general reference to section 380.15 80 and proposes this be revised to specifically refer to sections 380.15(a) and (b). We agree and will revise section 157.206(b)(1) accordingly. This order and the Final Rule reduced the number of landowners to which the NOPR would have required that companies give prior notice for purposes of section 2.55 and section 380.15 activities by modifying the definition of ‘‘affected landowners.’’ ‘‘Affected landowners’’ now excludes owners of properties that will need to be crossed but not otherwise disturbed, as well as owners of abutting properties and owners of properties that contain residences within 50 feet of planned work areas where no ground-disturbing work will occur; in contrast the blanket certificate regulations’ landowner notification 79 See, e.g., Golden Triangle Storage, Inc.’s March 5, 2013 Comments on the NOPR at 4; INGAA’s March 5, 2013 Comments on the NOPR at 13–14; MidAmerican Energy Pipeline Group’s March 5, 2013 Comments on the NOPR at 4; National Fuel’s March 5, 2013 Comments on the NOPR at 4; Southern Star Central Gas Pipeline, Inc.’s March 5, 2013 Comments on the NOPR at 6–7; and WBI Energy Transmission Inc.’s March 5, 2013 Comments on the NOPR at 7. 80 INGAA’s Request for Rehearing at 19–20. E:\FR\FM\25NOR1.SGM 25NOR1 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations requirement relies on the definition of affected landowners in section 157.6(d)(2) of the regulations, which includes these additional property owners. Further, section 157.203(d)(1) requires at least 45 days prior notice to landowners for automatic blanket projects,81 while the new landowner notification requirement for section 2.55 and section 380.15 activities requires a minimum of only five days prior notice.82 62. INGAA also notes that the Final Rule replaced the NOPR’s proposed term ‘‘original’’ in section 2.55(b)(1)(ii) with the term ‘‘existing’’ but did not make similar changes to Appendix A of Part 2. For consistency, INGAA requests that the Commission replace the term ‘‘original’’ with ‘‘existing’’ in Appendix A of Part 2.83 We agree and will revise Appendix A of Part 2. III. Information Collection Statement 63. The Paperwork Reduction Act (PRA) 84 requires each federal agency to seek and obtain Office of Management and Budget (OMB) approval before undertaking a collection of information directed to ten or more persons or contained in a rule of general applicability.85 The OMB’s regulations implementing the PRA require approval of certain information collection requirements imposed by agency rules.86 64. The Commission submitted the Final Rule’s information collection statement for landowner notification requirements under sections 2.55, 157.203(d)(3)(i), and 380.15 of the regulations to OMB for its review and approval, and OMB granted approval under OMB Control No. 1902–0128. wreier-aviles on DSK4TPTVN1PROD with RULES 81 The requirement in section 157.203(d)(1) for at least 45 days prior notice is separate from the requirement in section 157.205(d)(2) that projects exceeding the automatic cost limit be publically noticed by the Commission at least 60 days in advance, with the project sponsor to notify affected landowners the earlier of (1) three days from when the Commission assigns a docket number to the proposed project or (2) when the project sponsor initiates easement negotiations for the proposed project. 82 As previously discussed, whereas section 2.55 and section 380.15 of the regulations do not include any specific environmental conditions because activities under those sections are limited to areas subject to environment review by the Commission, an activity cannot go forward under the blanket certificate regulations unless the company has satisfied all of the specific environmental conditions set forth in section 157.206 of the blanket certificate regulations. 83 INGAA’s Request for Rehearing at 20. 84 44 U.S.C. 3501–3520 (2012). 85 OMB’s regulations at 5 CFR 1320.3(c)(4)(i) (2014) require that ‘‘[a]ny recordkeeping, reporting, or disclosure requirement contained in a rule of general applicability is deemed to involve ten or more persons.’’ 86 5 CFR 1320 (2014). VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 While this rule clarifies certain aspects of the existing information collection requirements for landowner notification, it does not add to these requirements. Accordingly, a copy of this Final Rule will be sent to OMB for informational purposes only. IV. Environmental Analysis 65. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.87 The Commission has categorically excluded certain actions from these requirements as not having a significant effect on the human environment.88 Generally, the regulatory actions taken in this rulemaking proceeding fall within the categorical exclusions in the Commission’s regulations for actions that are clarifying, corrective, or procedural and for information gathering, analysis, and dissemination.89 Accordingly, an environmental review is not necessary and has not been prepared in connection with this rulemaking. V. Document Availability 66. 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 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426. 67. 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. 68. User assistance is available for eLibrary and the FERC’s Web site during normal business hours from FERC Online Support at (202) 502–6652 (toll free at 1–866–208–3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502– 8371, TTY (202) 502–8659. Email the 87 Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, 52 FR 47897 (December 17, 1987), FERC Stats. & Regs., Regulations Preambles 1986–1990 ¶ 30,783 (1987). 88 18 CFR 380.4 (2014). 89 18 CFR 380.4(a)(1) and (5) (2014). PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 70067 Public Reference Room at public.referenceroom@ferc.gov. VI. Effective Date and Congressional Notification 69. These regulations are effective January 26, 2015. The Commission has determined that this rule is not a ‘‘major rule’’ as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. List of Subjects 18 CFR Part 2 Administrative practice and procedure, and Reporting and recordkeeping requirements. 18 CFR Part 157 Administrative practice and procedure, Natural gas, and Reporting and recordkeeping requirements. 18 CFR Part 380 Environmental impact statements, and Reporting and recordkeeping requirements. By the Commission. Nathaniel J. Davis, Sr., Deputy Secretary. In consideration of the foregoing, the Commission amends parts 2, 157, and 380, chapter I, title 18, Code of Federal Regulations, as follows: PART 2—GENERAL POLICY AND INTERPRETATIONS 1. The authority citation for part 2 continues to read as follows: ■ Authority: 5 U.S.C. 601; 15 U.S.C. 717– 717z, 3301–3432; 16 U.S.C. 792–828c, 2601– 2645, 42 U.S.C. 4321–4370h, 7101–7352. 2. Amend § 2.55 by revising paragraphs (c)(1) and (2) to read as follows: ■ § 2.55 7(c). Definition of terms used in section * * * * * (c) * * * (1)(i) No activity described in paragraphs (a) and (b) of this section that involves ground disturbance is authorized unless a company makes a good faith effort to notify in writing each affected landowner, as noted in the most recent county/city tax records as receiving the tax notice, whose property will be used and subject to ground disturbance as a result of the proposed activity, at least five days prior to commencing any activity under this section. A landowner may waive the five-day prior notice requirement in writing, so long as the notice has been provided. No landowner notice under this section is required: E:\FR\FM\25NOR1.SGM 25NOR1 70068 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations (A) If all ground disturbance will be confined entirely to areas within the fence line of an existing above-ground site of facilities operated by the company; or (B) For activities done for safety, DOT compliance, or environmental or unplanned maintenance reasons that are not foreseen and that require immediate attention by the company. (ii) The notification shall include at least: (A) A brief description of the facilities to be constructed or replaced and the effect the activity may have on the landowner’s property; (B) The name and phone number of a company representative who is knowledgeable about the project; and (C) A description of the Commission’s Dispute Resolution Division Helpline, which an affected person may contact to seek an informal resolution of a dispute as explained in section 1b.21(g) of the Commission’s regulations and the Dispute Resolution Division Helpline number. (2) ‘‘Affected landowners’’ include owners of interests, as noted in the most recent county/city tax records as receiving tax notice, in properties (including properties subject to rightsof-way and easements for facility sites, compressor stations, well sites, and all above-ground facilities, and access roads, pipe and contractor yards, and temporary work space) that will be directly affected by (i.e., used) and subject to ground disturbance as a result of activity under this section. * * * * * ■ 3. Revise appendix A to part 2 to read as follows: wreier-aviles on DSK4TPTVN1PROD with RULES Appendix A to Part 2—Guidance for Determining the Acceptable Construction Area for Auxiliary and Replacement Facilities These guidelines shall be followed to determine what area may be used to construct the auxiliary or replacement facility. Specifically, they address what areas, in addition to the permanent right-of-way, may be used. An auxiliary or replacement facility must be within the existing right-of-way or facility site as specified by § 2.55(a)(1) or § 2.55(b)(1)(ii). Construction activities for the auxiliary or replacement facility can extend outside the current permanent right-of-way if they are within the temporary and permanent right-of-way and associated work spaces authorized for the construction of the existing installation. If documentation is not available on the location and width of the temporary and permanent rights-of-way and associated work spaces that were used to construct the existing facility, the company may use the following guidance for the auxiliary VerDate Sep<11>2014 16:47 Nov 24, 2014 Jkt 235001 installation or replacement, provided the appropriate easements have been obtained: a. Construction should be limited to no more than a 75-foot-wide right-of-way including the existing permanent right-ofway for large diameter pipeline (pipe greater than 12 inches in diameter) to carry out routine construction. Pipeline 12 inches in diameter and smaller should use no more than a 50-foot-wide right-of-way. b. The temporary right-of-way (working side) should be on the same side that was used in constructing the existing pipeline. c. A reasonable amount of additional temporary work space on both sides of roads and interstate highways, railroads, and significant stream crossings and in side-slope areas is allowed. The size should be dependent upon site-specific conditions. Typical work spaces are: Typical extra area (width/length) Item Two lane road (bored). Four lane road (bored). Major river (wet cut) .. Intermediate stream (wet cut). Single railroad track .. 100 by 200 feet. 50 by 100 feet. 25–50 by 100 feet. Authority: 15 U.S.C. 717–717z. 5. Amend § 157.206 by revising paragraph (b)(1) to read as follows: ■ PO 00000 Standard Conditions. Frm 00016 Fmt 4700 7. Amend § 380.15 by revising paragraphs (c)(1) and (2) to read as follows: ■ * 4. The authority citation for part 157 continues to read as follows: * Authority: 42 U.S.C. 4321–4370h, 7101– 7352; E.O. 12009, 3 CFR 1978 Comp., p. 142. 50 by 100 feet. ■ * * (b) * * * 6. The authority citation for part 380 continues to read as follows: ■ § 380.15 Siting and maintenance requirements. PART 157—APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER SECTION 7 OF THE NATURAL GAS ACT * PART 380—REGULATIONS IMPLEMENTING THE NATIONAL ENVIRONMENTAL POLICY ACT 25–50 by 100 feet. d. The auxiliary or replacement facility must be located within the permanent rightof-way or, in the case of nonlinear facilities, the cleared building site. In the case of pipelines this is assumed to be 50 feet wide and centered over the pipeline unless otherwise legally specified. However, use of the above guidelines for work space size is constrained by the physical evidence in the area. Areas obviously not cleared during the existing construction, as evidenced by stands of mature trees, structures, or other features that exceed the age of the facility being replaced, should not be used for construction of the auxiliary or replacement facility. If these guidelines cannot be met, the company should consult with the Commission’s staff to determine if the exemption afforded by § 2.55 may be used. If the exemption may not be used, construction authorization must be obtained pursuant to another regulation under the Natural Gas Act. § 157.206 (1) The certificate holder shall adopt the requirements set forth in § 380.15(a) and (b) of this chapter for all activities authorized by the blanket certificate and shall issue the relevant portions thereof to construction personnel, with instructions to use them. * * * * * * Sfmt 4700 * * * * (c) * * * (1)(i) No activity described in paragraphs (a) and (b) of this section that involves ground disturbance is authorized unless a company makes a good faith effort to notify in writing each affected landowner, as noted in the most recent county/city tax records as receiving the tax notice, whose property will be used and subject to ground disturbance as a result of the proposed activity, at least five days prior to commencing any activity under this section. A landowner may waive the five-day prior notice requirement in writing, so long as the notice has been provided. No landowner notice under this section is required: (A) If all ground disturbance will be confined entirely to areas within the fence line of an existing above-ground site of facilities operated by the company; or (B) For activities done for safety, DOT compliance, or environmental or unplanned maintenance reasons that are not foreseen and that require immediate attention by the company. (ii) The notification shall include at least: (A) A brief description of the facilities to be constructed or replaced and the effect the activity may have on the landowner’s property; (B) The name and phone number of a company representative who is knowledgeable about the project; and (C) A description of the Commission’s Dispute Resolution Division Helpline, which an affected person may contact to seek an informal resolution of a dispute as explained in section 1b.21(g) of the Commission’s regulations and the Dispute Resolution Division Helpline number. E:\FR\FM\25NOR1.SGM 25NOR1 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations (2) ‘‘Affected landowners’’ include owners of interests, as noted in the most recent county/city tax records as receiving tax notice, in properties (including properties subject to rightsof-way and easements for facility sites, compressor stations, well sites, and all above-ground facilities, and access roads, pipe and contractor yards, and temporary work space) that will be directly affected by (i.e., used) and subject to ground disturbance as a result of activity under this section. * * * * * [FR Doc. 2014–27907 Filed 11–24–14; 8:45 am] BILLING CODE 6717–01–P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 40 [Docket No. RM14–15–000; Order No. 802] Physical Security Reliability Standard Federal Energy Regulatory Commission, Energy. ACTION: Final rule. AGENCY: The Federal Energy Regulatory Commission (Commission) approves Reliability Standard CIP–014– 1 (Physical Security). The North American Electric Reliability Corporation, the Commission-certified Electric Reliability Organization, submitted Reliability Standard CIP– 014–1 for Commission approval in response to a Commission order issued on March 7, 2014. The purpose of Reliability Standard CIP–014–1 is to enhance physical security measures for the most critical Bulk-Power System facilities and thereby lessen the overall vulnerability of the Bulk-Power System against physical attacks. In addition, the Commission directs NERC to develop one modification to Reliability Standard CIP–014–1 and submit an informational filing. DATES: This rule is effective January 26, 2015. FOR FURTHER INFORMATION CONTACT: Regis Binder (Technical Information), Office of Electric Reliability, Division of Reliability Standards and Security, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (301) 665–1601, Regis.Binder@ferc.gov. Matthew Vlissides (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC wreier-aviles on DSK4TPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 14:24 Nov 24, 2014 Jkt 235001 20426, Telephone: (202) 502–8408, Matthew.Vlissides@ferc.gov. SUPPLEMENTARY INFORMATION: Order No. 802 Final Rule (Issued November 20, 2014) 1. Pursuant to section 215 of the Federal Power Act (FPA), the Commission approves Reliability Standard CIP–014–1 (Physical Security).1 The North American Electric Reliability Corporation (NERC), the Commission-certified Electric Reliability Organization (ERO), submitted Reliability Standard CIP– 014–1 for Commission approval in response to a Commission order issued on March 7, 2014.2 The purpose of Reliability Standard CIP–014–1 is to enhance physical security measures for the most critical Bulk-Power System facilities and thereby lessen the overall vulnerability of the Bulk-Power System facilities against physical attacks. In addition to approving Reliability Standard CIP–014–1, as discussed below, the Commission directs NERC to submit an informational filing and, pursuant to FPA section 215(d)(5), directs NERC to develop a modification to Reliability Standard CIP–014–1.3 I. Background A. Section 215 and Mandatory Reliability Standards 2. Section 215 of the FPA requires the Commission to certify an ERO to develop mandatory and enforceable Reliability Standards, subject to Commission review and approval. Once approved, the Reliability Standards may be enforced in the United States by the ERO, subject to Commission oversight, or by the Commission independently.4 B. March 7 Order 3. In the March 7 Order, the Commission determined that physical attacks on the Bulk-Power System could adversely impact the reliable operation of the Bulk-Power System, resulting in instability, uncontrolled separation, or cascading failures. Moreover, the Commission observed that the then current Reliability Standards did not specifically require entities to take steps to reasonably protect against physical security attacks on the Bulk-Power System. Accordingly, to carry out section 215 of the FPA and to provide 1 16 U.S.C. 824o. Standards for Physical Security Measures, 146 FERC ¶ 61,166 (2014) (March 7 Order). 3 16 U.S.C. 824o(d)(5). 4 Id. 824o(e). 2 Reliability PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 70069 for the reliable operation of the BulkPower System, the Commission directed NERC, pursuant to FPA section 215(d)(5), to develop and file for approval proposed Reliability Standards that address threats and vulnerabilities to the physical security of critical facilities on the Bulk-Power System. 4. The March 7 Order indicated that the Reliability Standards should require owners or operators of the Bulk-Power System to take at least three steps to address the risks that physical security attacks pose to the reliable operation of the Bulk-Power System. Specifically, the March 7 Order directed that the Reliability Standards should require: (1) Owners or operators of the Bulk-Power System to perform a risk assessment of their systems to identify their ‘‘critical facilities’’; (2) owners or operators of the identified critical facilities to evaluate the potential threats and vulnerabilities to those identified facilities; and (3) those owners or operators of critical facilities to develop and implement a security plan designed to protect against attacks to those identified critical facilities based on the assessment of the potential threats and vulnerabilities to their physical security. 5. The March 7 Order stated that the risk assessment used by an owner or operator to identify critical facilities should be verified by an entity other than the owner or operator, such as by NERC, the relevant Regional Entity, a reliability coordinator, or another entity.5 In addition, the March 7 Order indicated that the Reliability Standards should include a procedure for the verifying entity, as well as the Commission, to add or remove facilities from an owner’s or operator’s list of critical facilities.6 The March 7 Order further stated that the determination of threats and vulnerabilities and the security plan should be reviewed by NERC, the relevant Regional Entity, the reliability coordinator, or another entity with appropriate expertise. 6. The March 7 Order stated that, because the three steps of compliance with the contemplated Reliability Standards could contain sensitive or confidential information that, if released to the public, could jeopardize the reliable operation of the Bulk-Power System, NERC should include in the Reliability Standards a procedure that will ensure confidential treatment of sensitive or confidential information but still allow for the Commission, NERC and the Regional Entities to review and inspect any information that is needed 5 March 7 Order, 146 FERC ¶ 61,166 at P 11. 6 Id. E:\FR\FM\25NOR1.SGM 25NOR1

Agencies

[Federal Register Volume 79, Number 227 (Tuesday, November 25, 2014)]
[Rules and Regulations]
[Pages 70056-70069]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-27907]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 2, 157, and 380

[Docket No. RM12-11-002; Order No. 790-A]


Revisions to Auxiliary Installations, Replacement Facilities, and 
Siting and Maintenance Regulations

AGENCY: Federal Energy Regulatory Commission, Energy.

ACTION: Final rule; order on rehearing and clarification.

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SUMMARY: On rehearing, the Federal Energy Regulatory Commission 
(Commission) reaffirms its basic determinations in Order No. 790 and 
modifies and clarifies certain aspects of the Final Rule. Order No. 790 
amended the Commission's regulations to clarify that auxiliary 
installations added to existing or proposed interstate transmission 
facilities under the Commission's regulations must be located within 
the authorized right-of-way or site for existing facilities or the 
right-of-way or site to be used for facilities proposed in a pending 
application for case-specific certificate authority or in a prior 
notice filing under the Commission's blanket certificate regulations, 
and use only the same temporary work space that was or will be used to 
construct the existing or proposed facilities. Order No. 790 also 
codified the common industry practice of notifying landowners prior to 
coming onto their property to undertake projects, or certain 
replacements, or certain maintenance activities.

DATES: This rule is effective January 26, 2015.

FOR FURTHER INFORMATION CONTACT:
Katherine Liberty, Office of the General Counsel, Federal Energy 
Regulatory Commission, 888 First Street NE., Washington, DC 20426, 
(202) 502-6491, katherine.liberty@ferc.gov.
Gordon Wagner, Office of the General Counsel, Federal Energy Regulatory 
Commission, 888 First Street NE., Washington, DC 20426, (202) 502-8947, 
gordon.wagner@ferc.gov.
Howard Wheeler, Office of Energy Projects, Federal Energy Regulatory 
Commission, 888 First Street NE.,

[[Page 70057]]

Washington, DC 20426, (202) 502-8688, howard.wheeler@ferc.gov.
Shannon Jones, Office of Energy Projects, Federal Energy Regulatory 
Commission, 888 First Street NE., Washington, DC 20426, (202) 502-6410, 
shannon.jones@ferc.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

 
                                                              Paragraph
                                                               numbers
 
I. Background..............................................            3
II. Discussion.............................................           11
    A. Section 2.55(a) Auxiliary Facilities................           11
        1. Commission's Jurisdiction.......................           12
        2. Section 2.55 Siting and Construction Limitations           26
        3. INGAA's Response to the NOPR....................           40
        4. Compliance With Executive Orders................           43
    B. Landowner Notification..............................           44
        1. Waiver of Five-Day Prior Notice.................           45
        2. Emergency Exemption to Notice Requirement.......           47
        3. Affected Landowners.............................           50
        4. One-Call Obligations............................           53
        5. Burden Resulting From the Landowner Notification           54
         Requirement.......................................
    C. Consistency With the Commission's Regulations.......           61
III. Information Collection Statement......................           63
IV. Environmental Analysis.................................           65
V. Document Availability...................................           66
VI. Effective Date and Congressional Notification..........           69
 

Final Rule--Order on Rehearing and Clarification

    1. On November 22, 2013, the Federal Energy Regulatory Commission 
(Commission) issued a Final Rule in Order No. 790 that amended its 
regulations, effective February 3, 2014, to: (1) Clarify that auxiliary 
installations added to existing or proposed interstate transmission 
facilities under section 2.55 of the Commission's regulations \1\ must 
(a) be located within the authorized right-of-way or site for existing 
facilities or the right-of-way or site to be used for facilities 
proposed in a pending application for case-specific certificate 
authority or in a prior notice filing under the Commission's Part 157 
blanket certificate regulations, and (b) use only the same temporary 
work space that was or will be used to construct existing or proposed 
facilities; and (2) codify the common industry practice of notifying 
landowners prior to coming onto their property to undertake section 
2.55 projects, certain Part 157, Subpart F replacements, or certain 
section 380.15 maintenance activities.\2\
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    \1\ 18 CFR 2.55 (2014).
    \2\ Revisions to Auxiliary Installations, Replacement 
Facilities, and Siting and Maintenance Regulations, Order No. 790, 
78 FR 72794-801 (Dec. 4, 2013), FERC Stats. & Regs. ] 31,351 (2013) 
(cross-referenced at 145 FERC ] 61,154 (2013)).
---------------------------------------------------------------------------

    2. The Commission received two requests for rehearing and 
clarification of the Final Rule, one filed by the Interstate Natural 
Gas Association of America (INGAA) and the other filed jointly by 
National Fuel Gas Supply Corporation and Empire Pipeline, Inc. 
(referred to collectively as ``National Fuel''). As discussed below, 
this order denies the requests for rehearing and grants and denies the 
requests for clarification.

I. Background

    3. Section 7(c)(1)(A) of the Natural Gas Act (NGA) requires a 
natural gas company to have certificate authorization for the 
``construction or extension of any facilities.'' \3\ To ``avoid the 
filing and consideration of unnecessary applications for 
certificates,'' \4\ i.e., to save the time and expense that would 
otherwise be expended by companies and the Commission in undertaking a 
full, formal NGA section 7 certificate proceeding for every 
modification to a jurisdictional pipeline system, section 2.55 
establishes that for the purposes of section 7(c), ``the word 
facilities as used therein shall be interpreted to exclude'' auxiliary 
and replacement facilities.\5\ Thus, while an auxiliary or replacement 
facility that qualifies for purposes of section 2.55 remains subject to 
the Commission's NGA jurisdiction, it does not require an individual, 
facility-specific section 7(c) certificate authorization.
---------------------------------------------------------------------------

    \3\ 15 U.S.C. 717f(c)(1)(A) (2012).
    \4\ Filing of Applications for Certificates of Public 
Convenience and Necessity, Notice of Proposed Rulemaking, NOPR, 13 
FR 6253, at 6254 (October 23, 1948).
    \5\ 18 CFR 2.55 (2014).
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    4. Facilities that qualify under section 2.55(a) must be ``merely 
auxiliary or appurtenant to an authorized or proposed pipeline 
transmission system'' and installed ``only for the purpose of obtaining 
more efficient or more economical operation of the authorized or 
proposed transmission facilities,'' such as ``[v]alves; drips; pig 
launchers/receivers; yard and station piping; cathodic protection 
equipment; gas cleaning, cooling and dehydration equipment; residual 
refining equipment; water pumping, treatment and cooling equipment; 
electrical and communication equipment; and buildings.'' \6\ A company 
must provide the Commission with at least 30 days prior notice if it 
plans to rely on section 2.55 to construct auxiliary facilities in 
conjunction with: (1) A project for which case-specific certificate 
authority has already been received but which is not yet in service; 
(2) a proposed project for which a case-specific certificate 
application is pending; or (3) facilities that will be constructed 
subject to the prior notice provisions of the Part 157, Subpart F 
blanket certificate regulations.
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    \6\ Id. 2.55(a)(1). But for the inclusion of pig launchers/
receivers in 1999, this list has remained unaltered since section 
2.55 was put in place in 1949. Note that if a pipeline company wants 
to install any facilities specifically named in section 2.55(a)(1), 
but will not be installing them only for the purpose of obtaining 
more efficient or more economical operation of existing or proposed 
interstate transmission facilities, then the company cannot rely on 
section 2.55(a). See Algonquin Gas Transmission Company, 57 FERC ] 
61,052 (1991); West Texas Gas, Inc., 62 FERC ] 61,039 (1993); and 
Natural Gas Pipeline Company of America, 114 FERC ] 61,061, at n.4 
(2006).
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    5. Section 2.55(b) permits companies to replace facilities that are 
or will soon be physically deteriorated or obsolete, so long as doing 
so will not result in a reduction or abandonment of service and the 
replacement facilities will have a substantially equivalent designed

[[Page 70058]]

delivery capacity.\7\ All replacement facilities constructed under 
section 2.55(b) must be located within the existing facilities' 
previously authorized right-of-way or on the same site as the 
facilities being replaced and must be constructed using the same 
temporary work spaces used to construct the existing facilities.\8\ 
Section 2.55(b) replacement projects can go forward without case-
specific or blanket certificate authorization. However, companies must 
provide the Commission with 30 days prior notice before undertaking 
more expensive replacement projects.\9\
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    \7\ 18 CFR 2.55(b) (2014).
    \8\ Id. 2.55(b)(ii).
    \9\ The requirement that a company give at least 30 days prior 
notice to the Commission before commencing a replacement project 
applies if the project will exceed the current cost limit for 
projects automatically authorized under the Part 157 blanket 
certificate regulations. However, unlike the blanket certificate 
regulations, section 2.55 places no cost limits on auxiliary 
installations or replacement projects that qualify under that 
section.
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    6. On April 2, 2012, INGAA filed a petition requesting that the 
Commission clarify that installations of auxiliary facilities under 
section 2.55(a) are not restricted to the rights-of-way and temporary 
work spaces used to construct the existing facilities that will be 
augmented by the auxiliary facilities.\10\ INGAA stated that it was 
seeking such clarification because Commission staff has stated in 
discussions with pipeline representatives and in industry meetings that 
companies undertaking section 2.55(a) auxiliary installations to 
augment existing facilities that are already in service must stay 
within the right-of-way or site for the existing facilities and 
restrict construction activities to previously used work spaces. INGAA 
disagreed with these constraints, arguing that section 2.55(a) 
activities had not been limited in this way in the past, and that 
Commission staff's position amounted to rulemaking without the 
opportunity for notice and comment, contrary to the requirements of the 
Administrative Procedure Act (APA).\11\ Pursuant to section 
385.207(a)(4) of the Commission's Rules of Practice and Procedure, 
INGAA requested that the Commission confirm INGAA's view that the 
siting and work space constraints stated by staff do not apply to 
section 2.55(a) auxiliary installations.
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    \10\ On May 2, 2012, MidAmerican Energy Pipeline Group (which 
includes Kern River Gas Transmission Company and Northern Natural 
Gas Company) filed a motion to intervene and comments in support of 
INGAA's petition.
    \11\ 5 U.S.C. 553 (2012).
---------------------------------------------------------------------------

    7. On December 20, 2012, the Commission issued a NOPR proposing to 
revise section 2.55(a) to clarify that, as with section 2.55(b), all 
projects must take place within a company's authorized right-of-way or 
facility site and use only previously approved work spaces. In 
addition, the NOPR proposed to add a 10-day landowner notification 
requirement for section 2.55 auxiliary and replacement facilities and 
for section 380.15 maintenance activities.\12\
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    \12\ Revisions to Auxiliary Installations, Replacement 
Facilities, and Siting and Maintenance Regulations, NOPR, 78 FR 679, 
at 683 (Jan. 4, 2013), FERC Stats. & Regs. ] 32,696 (2012) (cross-
referenced at 141 FERC ] 61,228 (2012)). While section 380.15 covers 
siting, construction, and maintenance, our existing regulations 
already have notification requirements in place applicable to siting 
and construction; consequently, the additional prior notice 
requirement described in the new section 380.15(c) will apply 
exclusively to maintenance activities.
---------------------------------------------------------------------------

    8. On November 22, 2013, the Commission issued the Final Rule to 
revise its regulations to clarify that all section 2.55(a) auxiliary 
installations added to existing or proposed interstate transmission 
facilities must be located within the authorized right-of-way or site 
for the existing or proposed facilities and use only the same temporary 
work space used to construct the existing or proposed facilities. In 
addition, the Final Rule adopted regulations to provide a landowner 
with notice at least five days prior to commencing an auxiliary or 
replacement project under section 2.55 or a maintenance activity under 
section 380.15 that causes a ground disturbance on the landowner's 
property.
    9. On December 23, 2013, INGAA and National Fuel each filed a 
request for rehearing of the Final Rule's determination that all 
auxiliary installations added to existing or proposed interstate 
transmission facilities must be located within the authorized right-of-
way or site for the existing or proposed facilities and use only the 
same temporary work space used to construct the existing or proposed 
facilities.
    10. In regard to the Final Rule's landowner notification 
requirements, INGAA and National Fuel request that the Commission 
clarify that: (1) The landowner notification requirements may be waived 
with the landowner's consent; (2) the provision that enables companies 
to waive the landowner notification requirements for ``activities 
required to respond to an emergency'' includes activities done for 
safety, U.S. Department of Transportation (DOT) compliance, or 
environmental or unplanned maintenance reasons; (3) the landowner 
notification requirement does not apply when a pipeline company is 
required on short notice to mark its facilities on a landowner's 
property because the landowner or a third party will be digging near 
the pipeline company's facilities; and (4) the landowner notification 
does not apply to landowners whose property is crossed en route to a 
proposed ground-disturbing maintenance activity, or to areas located 
entirely within the fence line of an existing, above-ground facility 
site.

II. Discussion

A. Section 2.55(a) Auxiliary Facilities

    11. The Final Rule revised the Commission's regulations to clarify 
that all section 2.55(a) auxiliary installations added to existing or 
proposed interstate transmission facilities must be located within the 
authorized right-of-way or site for the existing or proposed facilities 
and use only the same temporary work space used to construct the 
existing or proposed facilities.
1. Commission's Jurisdiction
    12. INGAA persists in its contention that section 2.55(a) 
facilities are beyond the Commission's jurisdiction. This is a 
fundamental misreading of this regulatory provision's intent and 
application.
    13. In 1949, Order No. 148, by ``amendment of general rules and 
regulations governing the filing of applications for certificates of 
public convenience and necessity under section 7(c),'' \13\ added 
section 2.55 to our regulations to permit the construction and 
operation of auxiliary, replacement, and delivery point facilities 
without the need to obtain individual certificates for such 
facilities.\14\ INGAA maintains that ``[i]n Order No. 148, the 
Commission distinguished between jurisdictional facilities necessary 
for the transportation of natural gas in interstate commerce and non-
jurisdictional installations.'' \15\ The Commission did not. What the 
Commission did, as explained in the NOPR prior to Order No. 148, was 
``to permit natural-gas companies subject to the jurisdiction of the 
Commission'' to add a restricted set of facilities to, and replace 
parts of, an existing system ``without further authorization from the 
Commission . . . to avoid the filing and

[[Page 70059]]

consideration of unnecessary applications for certificates.'' \16\ 
(Emphasis added.) Order No. 148 accomplished this by deeming that 
``[f]or the purposes of section 7(c),'' i.e., with respect to the 
section of the NGA which requires that natural gas companies obtain 
prior certificate authorization to construct or acquire jurisdictional 
facilities, ``the word `facilities' as used therein shall be 
interpreted to exclude'' auxiliary, replacement, and delivery point 
facilities.\17\ In other words, to reduce the burden on the industry 
and to aid our own administrative efficiency, the Commission allowed 
natural gas companies already holding section 7 certificate 
authorization for existing natural gas facilities to make limited 
modifications to those facilities without the need to first obtain 
separate, additional, case-specific certificate authorization for each 
modification. In the Final Rule, we compared section 2.55 to our later 
actions to enable companies to act without first submitting an 
individual certificate application, stating:
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    \13\ Filing of Applications for Certificates of Public 
Convenience and Necessity, 14 FR 681 (February 16, 1949).
    \14\ Section 2.55(c), which describes new delivery points, was 
subsequently removed by Order No. 148-A, 49 FPC 1046 (1973). 
Delivery points are now included among the facilities that may be 
constructed and operated pursuant to blanket certificate authority. 
See 18 CFR 157.211 (2014).
    \15\ INGAA's Request for Rehearing at 22.
    \16\ 13 FR 6253-54 (October 23, 1948).
    \17\ 14 FR 681.

    Section 2.55 is both a precursor and complement to our Part 157 
blanket certificate program. By providing non-case-specific 
certificate authorization for limited classes of facilities, the 
section 2.55 and blanket certificate regulations permit companies to 
satisfy the requirements of section 7(c) without having to apply for 
individual case-specific certificates for each and every 
modification to their systems.\18\
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    \18\ Order No. 790, FERC Stats. & Regs. ] 31,351 at P 16.

    14. Thus, Order No. 148 did not and could not remove jurisdictional 
facilities from our jurisdiction, but carved out a class of facilities 
in section 2.55 that could be added onto, or could replace, parts of a 
larger certificated system without the need for further review because 
the auxiliary or replacement facilities will be within the same rights-
of-way and use the same work spaces that were reviewed by the 
Commission prior to construction of the existing facilities at that 
location. In describing the facilities authorized under section 2.55, 
Order No. 148 did not make any jurisdictional distinction among section 
2.55(a) auxiliary installations, section 2.55(b) replacements, and 
section 2.55(c) delivery points, indicating all section 2.55 facilities 
share the same jurisdictional status. INGAA acknowledges that 2.55 
---------------------------------------------------------------------------
replacement facilities are subject to our jurisdiction, stating:

    The facilities in question, both those being replaced and those 
doing the replacing once they are in service, are jurisdictional 
under NGA Section 7. The new replacement facilities once in service 
assume the certificated position previously occupied by the 
facilities being replaced. . . . The new facilities, just like the 
facilities that they replaced, are required to provide the 
pipeline's previously certificated jurisdictional service. In 
addition, as replacements of existing facilities, Section 2.55(b) 
projects by definition and by their very nature involve an existing 
right of way.\19\
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    \19\ INGAA's Request for Rehearing at 39.

    15. Section 2.55(a) auxiliary installations, which are limited to 
facilities that improve the operation of a jurisdictional system, have 
the same jurisdictional status as the undisputedly jurisdictional 
---------------------------------------------------------------------------
replacements. As stated in the Final Rule:

    All section 2.55 facilities are integrated into a larger 
interstate transmission system and serve no function other than to 
enable that system to perform its jurisdictional functions more 
efficiently or economically; just as the larger system is 
jurisdictional, the component parts of that system, including 
auxiliary facilities installed pursuant to section 2.55, are 
jurisdictional as well.\20\
---------------------------------------------------------------------------

    \20\ Order No. 790, FERC Stats. & Regs. ] 31,351 at P 13 
(footnote omitted).

Accordingly, the facilities identified in section 2.55 are permitted to 
be put in place pursuant to the certificate authorization of the 
pipeline system that they modify, and are consequently as 
jurisdictional as, and subject to the same constraints imposed upon, 
the system that they modify, including siting and workspace 
constraints.
    16. INGAA argues that because Order No. 603 amended section 2.55(b) 
to explicitly state that replacements must use the same right-of-way 
and workspaces as the facilities being replaced, but did not amend 
section 2.55(a) to state the same with respect to auxiliary facilities, 
the Commission's intent was to impose these restrictions on 
replacements alone. INGAA is incorrect in suggesting that it was not 
until Order No. 603 that the Commission viewed section 2.55 as limiting 
all construction activities under that section to existing, previously 
studied and approved rights-of-way. The Commission stated in Order No. 
603 that ``[c]urrent Policy requires that replacement facilities must 
be placed in the existing ROW''; ``we are not allowing additional ROW 
width under Section 2.55''; and ``we will continue to follow Commission 
policy and limit the pipeline's use of property to construct facilities 
under Section 2.55 to the existing ROW.'' \21\
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    \21\ Revision of Existing Regulations Under Part 157 and Related 
Sections of the commission's Regulations Under the Natural Gas Act, 
Order No. 603, 64 FR 26572 at 26575; FERC Stats. & Regs. ] 31,073 at 
30,784-85 (1999).
---------------------------------------------------------------------------

    17. The discussion in Order No. 603 made clear that the Commission 
has always viewed all activities under section 2.55 as being limited to 
existing rights-of-way and facility sites. The Commission focused on 
section 2.55(b) in Order No. 603 because it was aware that some 
companies incorrectly viewed that section as providing authorization 
for them to undertake replacement projects using new, not previously 
studied rights-of-way, and thereby in theory, swap out large portions 
of their systems under section 2.55(b) with no limit as to project size 
and potential impacts.\22\ At the time, the Commission had no 
intimations of companies similarly relying on section 2.55(a) to place 
auxiliary installations in greenfield areas. Furthermore, the 
Commission still assumed that there was no need for companies to go 
outside existing rights-of-way to install section 2.55(a) facilities 
that are ``merely auxiliary or appurtenant'' to and ``only for the 
purpose'' of enhancing the operation of a pipeline's other authorized 
facilities. It has been only relatively recently that Commission 
staff's discussions with industry representatives and INGAA's petition 
have made it clear that an explicit statement of siting limitations is 
also needed in section 2.55(a) to clarify that auxiliary installations 
also must stay within previously authorized boundaries.
---------------------------------------------------------------------------

    \22\ As discussed in the Final Rule, Order No. 603 was prompted 
by a company's inappropriate reliance on section 2.55(b) to abandon 
91 miles of pipeline and install new, larger-diameter pipeline, 
portions of which were placed outside the right-of-way of the 
abandoned pipeline. See Order No. 603, FERC Stats. & Regs. ] 31,073, 
at 30,783-84 (1999), and Order No. 790, FERC Stats. & Regs. ] 
31,351, at P 17 (2013) (citing Arkla Energy Resources Company, 67 
FERC ] 61,173 (1994) (Arkla), order on reh'g, NorAm Gas Transmission 
Company, 70 FERC ] 61,030 (1995) (NorAm)). Arkla was in the process 
of changing its name to NorAm at the time the Commission issued its 
order finding that Arkla's replacement project did not qualify to go 
forward under section 2.55(b). Thus, Arkla sought rehearing under 
its new name, NorAm.
---------------------------------------------------------------------------

    18. Specifically, over the last several years, concerns about 
potential noncompliance with siting restrictions for auxiliary 
installations under section 2.55 have been conveyed by industry 
representatives and landowners to Commission staff. Although the 
concerns presented have not resulted in an enforcement action, staff 
has explained the spatial limitations on construction activities under 
section

[[Page 70060]]

2.55(a) in response to inquiries by industry representatives and 
landowners and in presentations and conversations at public forums. In 
part, it was these statements by staff that motivated INGAA to submit 
its petition.
    19. In addressing space limitations on auxiliary installations 
under section 2.55(a) in this rulemaking proceeding, we have responded 
as we did in Order No. 603 when we became aware that companies were 
improperly relying on section 2.55(b) to construct replacement 
facilities in new rights-of-way. In this proceeding, we confirmed the 
position we expressed in Order No. 603 that construction activities 
under section 2.55 are restricted to projects confined to the footprint 
of existing facilities or the right-of-way of other facilities proposed 
in a case-specific certificate application or under the prior notice 
provisions of the blanket certificate regulations, and revised our 
regulations to codify this clarification. Again, the fact that we did 
not take the opportunity in Order No. 603 to insert explanatory 
language in section 2.55(a) shows only that the focus of the 
Commission's concern in 1999 was to address the identified issue of 
replacement facilities being installed outside existing rights-of-way, 
and was not, as INGAA contends, indicative of a deliberate intent by 
the Commission to apply spatial limitations to replacement projects but 
not to auxiliary projects.
    20. INGAA relies on National Fuel Gas Supply Corporation v. FERC, 
468 F.3d 831 (D.C. Cir. 2006) (National Fuel) to support its argument. 
In National Fuel, the D.C. Circuit remanded back to the Commission a 
final rule that extended the Commission's Standards of Conduct 
regulations, which already applied to pipeline companies' relationships 
with their marketing affiliates, to also apply to a pipeline company's 
relationships with their non-marketing affiliates (e.g., affiliated 
producers, gatherers, and processors). The court found no record 
evidence of a real problem, and explained that if the Commission chose 
on remand to rely solely on a theoretical threat, it would need to 
explain how the potential danger of improper communications between 
pipelines and entities other than their marketing affiliates justified 
the regulatory restrictions on their interactions and why the normal 
complaint process under NGA section 5 would not suffice.\23\
---------------------------------------------------------------------------

    \23\ National Fuel, 468 F.3d at 845.
---------------------------------------------------------------------------

    21. Our action here is not analogous to National Fuel, where the 
Commission sought to extend regulatory restrictions to new entities 
without documentation of abuse. Here, we are not expanding our 
regulatory reach based on potential industry activities; instead, we 
are simply clarifying the existing bounds of the regulatory authority 
provided by section 2.55(a). Further, whereas the section 5 complaint 
process can adequately address the economic consequences of unfair 
competitive practices after the fact, irreparable and unnecessary 
environmental damage can result from companies' relying on section 2.55 
of the regulations to construct new facilities in areas that the 
Commission has not had an opportunity to environmentally review.
    22. INGAA maintains that Order No. 603 describes auxiliary 
facilities as exempt from the Commission's jurisdiction. In support of 
its position, INGAA points to CNG Transmission Corp.,\24\ in which the 
Commission stated that Order No. 603 ``amends Section 2.55(a) to 
specifically identify pig launchers as non-jurisdictional auxiliary 
equipment.''
---------------------------------------------------------------------------

    \24\ 87 FERC ] 61,324, at 62,259, n.7, reh'g denied, 89 FERC ] 
61,047 (1999).
---------------------------------------------------------------------------

    23. Order No. 603 admittedly refers to auxiliary facilities in a 
manner that might be misconstrued as deeming auxiliary facilities to be 
nonjurisdictional. However, Order No. 603's discussion of auxiliary 
facilities opens with the statement that ``Section 2.55 defines 
facilities that are excluded from the requirements of section 7(c) of 
the NGA and may, therefore, be constructed without additional 
certificate authority.'' \25\ No additional certificate authority is 
needed because section 2.55 can be relied upon to construct qualifying 
auxiliary and replacement facilities under the umbrella of the 
company's certificate authority for the facilities being augmented or 
replaced. Thus, the `exemption' provided by section 2.55 is not an 
exemption from NGA jurisdiction, but an exemption from the need to 
apply for additional case-specific certificate authorization or rely on 
blanket authorization under NGA section 7 for qualifying activities. 
The Commission's failure to carefully choose its words in contexts 
where the jurisdictional status of pig launchers and other auxiliary 
facilities was not being challenged does not change the fact that all 
of the facilities addressed by section 2.55 are jurisdictional 
facilities.
---------------------------------------------------------------------------

    \25\ Order No. 603, FERC Stats. & Regs. ] 31,073 at 30,781 
(emphasis added).
---------------------------------------------------------------------------

    24. INGAA accepts that replacement facilities ``assume the 
certificated position previously occupied by the facilities being 
replaced,'' but does not believe auxiliary facilities are subject to 
any certificate authority, and consequently characterizes section 
2.55(a) and section 2.55(b) as representing ``intrinsically different 
concepts.'' \26\ We find no intrinsic difference. The facilities 
described under section 2.55 serve to enhance the operation or update 
the facilities of an existing system. Section 2.55(a) auxiliary 
facilities must serve the purpose of making a system function more 
efficiently or economically, and section 2.55(b) replacements serve to 
improve reliability and safety. Thus, conceptually, section 2.55 
auxiliary facilities and replacement facilities both serve the same 
purpose: They constitute relatively modest modifications to a system 
that do not alter the physical parameters of or services provided by 
the system.
---------------------------------------------------------------------------

    \26\ INGAA's Request for Rehearing at 39.
---------------------------------------------------------------------------

    25. INGAA maintains that in stating that section 2.55(a) auxiliary 
facilities are jurisdictional, the ``Commission erred by not 
considering reasonable alternatives to its chosen policy and by not 
giving a reasoned explanation for its rejection of such alternatives.'' 
\27\ INGAA is correct that when embarking on a new regulatory 
initiative, we consider various alternatives before we act, and then 
provide a reasoned explanation for our choice of action. Here, however, 
in responding to INGAA's petition requesting confirmation of its claim 
that auxiliary facilities are nonjurisdictional, we were not faced with 
a choice among policy alternatives; instead, we acted to correct a 
misunderstanding of the status of section 2.55 facilities by confirming 
that all such facilities are subject to the Commission's jurisdiction 
under section 7 of the NGA. Thus, our response did not contemplate 
potential policy choices, but clarified the existing policy embodied in 
section 2.55 that provides for the installation of auxiliary and 
replacement facilities described in that section under the certificate 
authority that authorized the facilities being enhanced or replaced. 
This rulemaking proceeding may have served to remind some companies of 
the existing spatial limitations on the placement of auxiliary and 
replacement facilities under section 2.55, but has not added any new 
additional regulatory restrictions on where facilities may be 
constructed under section 2.55.\28\
---------------------------------------------------------------------------

    \27\ Id. at 13-14.
    \28\ We have made policy changes to landowner notification 
requirements in this proceeding; however, these notification changes 
were made after considering alternatives and providing an 
explanation for the changes.

---------------------------------------------------------------------------

[[Page 70061]]

2. Section 2.55 Siting and Construction Limitations
    26. On rehearing, INGAA reiterates its argument that Commission 
staff has been aware companies have been relying on section 2.55 to 
install auxiliary facilities outside existing rights-of-way in some 
instances, and that this claimed awareness on staff's part supports 
INGAA's position that our Final Rule's regulatory revisions to clarify 
the right-of-way and workplace constraints on auxiliary installations 
constitutes a ``change [to] what had been the plain and universal 
understanding of that provision for approximately 60 years.'' \29\ In 
support, INGAA cites two instances in which Commission staff issued a 
letter order that appears to acquiesce to a company's plans to rely on 
section 2.55 to install auxiliary facilities outside an established 
right-of-way.\30\ INGAA also claims that based on the cited letter 
orders issued under delegated authority, members of the Commission's 
staff were aware, when the Commission issued Order Nos. 603 and 603-A 
in 1999, that pipelines were making auxiliary installations outside 
existing rights-of-way and workspaces.\31\
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    \29\ INGAA's Request for Rehearing at 4.
    \30\ INGAA's Request for Rehearing at 32.
    \31\ Id. at 11 and 43.
---------------------------------------------------------------------------

    27. In the situation underlying the first staff letter, a company 
sought case-specific certificate authorization to add a slug catcher (a 
facility to remove liquids from a gas stream) to an existing pipeline 
system.\32\ Staff determined no additional certificate authority was 
needed because the proposed slug catcher ``is an auxiliary installation 
that would increase the efficiency and enhance the flexibility of 
operation with no apparent change in the capacity of the existing 
Terrebonne System.'' \33\ We reiterate our observation from the Final 
Rule that although the application for certificate authorization 
indicated that a portion of the proposed slug catcher would be located 
outside the existing right-of-way, there is ``no indication that the 
location of the new facilities was taken into account in the one-page, 
two-paragraph staff letter,'' and staff's failure to recognize that 
some of the proposed facilities would be outside of the existing right-
of-way appears to have been ``an oversight that led to a wrong result, 
since locating any of the planned new auxiliary facilities outside the 
existing right-of-way should have disqualified the project for purposes 
of section 2.55(a).'' \34\
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    \32\ Trunkline Gas Company, Docket No. CP84-394-000, letter 
order signed by the Director of the Commission's Office of Pipeline 
Regulation, dated May 25, 1984; FERC eLibrary Accession No. 
19840601-0118.
    \33\ Id.
    \34\ Order No. 790, FERC Stats. & Regs. ] 31,351 at P 36.
---------------------------------------------------------------------------

    28. The second instance concerns staff's response to a proposal to 
install cathodic protection equipment. In a December 1997 letter, staff 
responded to a company's description of a new project to add cathodic 
protection to an existing pipeline by reminding the company that 
because part of the project would be in a new right-of-way, the company 
could not rely on section 2.55(a), but would have to file a case-
specific section 7 certificate application.\35\ In an April 1998 
letter, staff responded to the same company's description of what 
appears to be the same project, and finds it may proceed under section 
2.55(a).\36\ As discussed in the Final Rule, these letters are not 
necessarily in conflict, because the company may have altered its 
proposed project in response to the first letter so as to comply with 
the right-of-way restriction. If not, then as we stated in the NOPR and 
Final Rule, the April 1998 letter did not reflect Commission policy 
correctly.\37\
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    \35\ Letter signed by the Director of the Commission's Office of 
Pipeline Regulations, dated December 16, 1997; FERC eLibrary 
Accession No. 19971223-0120.
    \36\ Letter signed by the Director of the Commission's Office of 
Pipeline Regulation, dated April 3, 1998; FERC eLibrary Accession 
No. 19980408-0242.
    \37\ NOPR, FERC Stats. & Regs. ] 32,696 at P 11, n.18 and Order 
No. 790, FERC Stats. & Regs. ] 31,351 at P 35.
---------------------------------------------------------------------------

    29. INGAA finds our review of these letter orders to be ``cursory 
and unconvincing,'' and insists ``that the existence of these delegated 
orders entirely undermines the Commission's foundation for its Final 
Rule,'' \38\ which INGAA characterizes as a disingenuous claim that the 
Commission has not been aware that companies have been relying on 
section 2.55 to install auxiliary facilities outside existing rights-
of-way. This characterization is incorrect and is also inconsistent 
with INGAA's stated motive for submitting its petition, which was that 
members of the Commission's staff were taking the position in 
discussions with industry representatives that section 2.55(a) only 
applies to auxiliary facilities installed in existing rights-of-way 
using previously approved work spaces.\39\ Further, while INGAA's 
petition emphasized that some companies have relied in good faith on 
the misunderstanding that section 2.55(a) allows auxiliary facilities 
to be installed in new areas, INGAA's petition did not identify and we 
are not aware of any specific instances where companies have 
disregarded the guidance offered by Commission staff.
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    \38\ INGAA's Request for Rehearing at 32. INGAA also claims that 
based on the cited letter orders issued under delegated authority, 
members of the Commission's staff were aware, when the Commission 
issued Order Nos. 603 and 603-A in 1999, that companies were making 
auxiliary installations outside existing rights-of-way and 
workspaces. Id. at 11 and 43.
    \39\ INGAA's April 2, 2012 Petition at 1.
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    30. In any event, our review of the two cited letter orders was 
sufficient to establish that if staff concluded in those situations 
that the companies could rely on section 2.55(a) to build auxiliary 
facilities outside the existing rights-of-way, then those particular 
staff interpretations were in error. While staff makes every effort to 
accurately reflect the Commission's practice, procedures, policy, and 
regulatory requirements, staff's statements of opinion and regulatory 
interpretations, as INGAA and the industry it represents are well 
aware, are not binding on the Commission. Further, neither of the two 
unpublished letter orders cited by INGAA explicitly articulates a 
policy of allowing section 2.55(a) facilities outside an established 
project boundary or has any other precedential value, and INGAA 
provides no other evidence to support what it claims is the ``plain and 
universal understanding of [section 2.55(a)].'' \40\ We are unaware of 
any other staff opinions or issuances under delegated authority, much 
less any determinations by the Commission itself, that provide support 
for INGAA's assertions that our Final Rule announced a sharp departure 
from prior Commission policy and imposed, rather than clarified, the 
spatial constraints on section 2.55(a) facilities.
---------------------------------------------------------------------------

    \40\ INGAA's Request for Rehearing at 4.
---------------------------------------------------------------------------

    31. In clarifying the spatial constraint for section 2.55 
facilities, we commented in the Final Rule that absent such a 
constraint, companies could traverse and disturb unexamined areas. 
Specifically, we explained that our goal is to ensure that the 
authorization provided by section 2.55 does not inadvertently work to 
deprive the Commission of the opportunity to conduct an environmental 
review and impose appropriate mitigation measures in any situation 
where a company's construction activities may have adverse 
environmental impacts. Thus, the regulations provide that even when all 
planned auxiliary facilities can be located entirely within an existing 
right-of-way, if a company plans to construct the auxiliary facilities 
in conjunction with other construction activities proposed in a case-
specific certificate application or under the blanket certificate 
regulations' prior notice provisions, the company may not

[[Page 70062]]

undertake the section 2.55 construction until the auxiliary facilities 
have been identified and considered by the Commission in its 
environmental review in the proceeding on the other proposed facilities 
and the other facilities have been authorized.\41\
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    \41\ 18 CFR 2.55(a)(2)(ii) and (iii) (2014). See Order No. 790, 
FERC Stats. & Regs. ] 31,351 at P 50.
---------------------------------------------------------------------------

    32. INGAA replies that independent of the Commission's 
requirements, companies must comply with environmental laws imposed by 
other federal and state authorities, and argues that in the past these 
other environmental laws have provided satisfactory environmental 
oversight of companies' auxiliary installation projects outside 
existing rights-of-way.\42\ INGAA asserts, therefore, that there is no 
reason for the Commission to conduct NEPA reviews before companies 
undertake auxiliary installations involving construction activities 
that will disturb areas not previously studied by the Commission.
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    \42\ INGAA's Request for Rehearing at 34.
---------------------------------------------------------------------------

    33. We have NEPA responsibilities with respect to construction 
activities that companies undertake based on Commission-granted 
authorization, and we cannot waive these responsibilities solely 
because other agencies may have complementary or overlapping NEPA 
responsibilities of their own. INGAA objects to what it describes as 
the Commission's effort to limit the location of ``auxiliary 
installations through arguments based on a different pipeline activity, 
the replacement of facilities,'' and asserts that replacement and 
auxiliary ``activities are materially different and historically have 
been treated differently by the Commission.'' \43\ However, while 
section 2.55(b) replacement projects are generally of a larger scale 
than section 2.55(a) auxiliary installations and thus are more likely 
to involve significant ground disturbance, many activities that can 
qualify for construction under section 2.55(a), for example, 
installation of pig launchers/receivers and cathodic protection 
equipment, can also involve significant ground disturbance, as well as 
visual, noise, and other impacts. Thus, if a company will need to use 
new right-of-way or other areas that have not been authorized by the 
Commission to construct auxiliary facilities, the company cannot 
proceed with the construction under section 2.55. Rather, the company 
must proceed under the Part 157 blanket certificate regulations or, if 
the project will not qualify under the blanket certificate regulations, 
then file an application for case-specific certificate authorization. 
By way of comparison, whereas section 2.55 does not include 
environmental conditions because it does not provide any authorization 
for construction activities outside areas that have been or will be 
subject to the Commission's environmental review, the blanket 
certificate regulations, which do contemplate such activities, include 
environmental conditions in section 157.206(b) requiring pipeline 
companies to comply, prior to commencing construction, with numerous 
environmental laws enforced by other agencies to ensure that sensitive 
environmental areas will not be adversely impacted by activities, 
including activities under the automatic provisions, that will involve 
ground disturbance or changes to operational air and noise 
emissions.\44\ Section 2.55(a) does not include such specific 
requirements because we did not contemplate that auxiliary facilities 
would be located outside of areas that either have been or will be 
subject to the Commission's environmental study and any appropriate 
environmental mitigation measures.
---------------------------------------------------------------------------

    \43\ Id. at 8.
    \44\ Sections 157.206(b)(2)(i)-(xii) require that companies 
planning to undertake construction activities under Part 157 blanket 
certificate authority obtain, prior to commencing construction, any 
necessary permits or approvals from and comply with conditions 
imposed by the agencies charged with specific NEPA responsibilities 
under the Clean Water Act, Clean Air Act, National Historic 
Preservation Act, Archeological and Historic Preservation Act, 
Coastal Zone Management Act, Endangered Species Act, Wild and Scenic 
Rivers Act, National Wilderness Act, National Parks and Recreation 
Act, the Magnuson-Stevens Fishery Conservation and Management Act, 
and executive orders requiring evaluation of the potential effects 
of actions on floodplains and wetlands.
---------------------------------------------------------------------------

    34. Section 2.55 and blanket certificate authority embody two 
different types of certificate authorization. The certificate authority 
for auxiliary installations under section 2.55(a), which does not 
include any specific environmental conditions, derives from either (1) 
the certificate for the existing facilities to be augmented, and thus 
the auxiliary facilities can only use areas previously authorized by 
the Commission for the construction of the existing facilities, or (2) 
the certificate authority being sought by the company for other new 
facilities, in which case both the new facilities and the planned 
auxiliary facilities will be subject to an environmental review by the 
Commission. While blanket certificate authority can be relied upon to 
obtain new right-of-way and to use previously undisturbed areas, any 
blanket certificate construction that would involve ground disturbance 
or changes to operational air and noise emissions will be subject, as 
discussed above, to section 157.206(b)'s environmental conditions. In 
addition, we note that a company's prior notice blanket certificate 
activities, even those that will be confined entirely to an existing 
right-of-way previously studied and authorized by the Commission, can 
be protested by staff based on environmental concerns, thus subjecting 
the proposal to additional review.\45\
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    \45\ See, e.g., Northwest Pipeline Corporation, 68 FERC ] 
61,336, at 62,345-46 (1994) (Commission staff protested a 
construction proposal filed under the prior notice provisions, 
withdrawing the protest after its environmental concerns were 
addressed); Williams Natural Gas Company, 66 FERC ] 62,114 (1994) 
(following staff's protest to Williams' prior notice filing 
proposing to abandon 19 miles pipeline by removal, the Commission's 
Director of the Office of Pipeline and Producer Regulation 
authorized the activity subject to Williams' implementation of 
certain mitigation measures and environmental conditions); and 
Natural Gas Pipeline Company of America, 64 FERC ] 62,041 (1993) 
(Commission staff protested Natural's prior notice filing proposing 
to abandon delivery taps, delaying authorization of the abandonment 
until Natural received a permit from the U.S. Environmental 
Protection Agency which included conditions addressing the disposal 
of material potentially contaminated with polychlorinated 
biphenyls).
---------------------------------------------------------------------------

    35. In practice, we have highlighted the difference in section 2.55 
and blanket certificate activities by rejecting companies' reliance on 
section 2.55(a) to install facilities that do not meet the siting or 
function requirements, thereby requiring the companies to rely on 
blanket authorization or case-specific certification for such 
facilities.\46\
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    \46\ See, e.g., Algonquin Gas Transmission Company, 57 FERC ] 
61,052 (1991); West Texas Gas, Inc., 62 FERC ] 61,039 (1993); and 
Natural Gas Pipeline Company of America, 114 FERC ] 61,061 (2006).
---------------------------------------------------------------------------

    36. In seeking to bolster their position, commenters on the NOPR 
posited extreme situations, arguing for example, that since the 
Commission included ``buildings'' as an example of a 2.55(a) facility, 
and a new corporate headquarters cannot be constructed entirely within 
an existing pipeline right-of-way, the Commission could not have 
intended 2.55(a) facilities to be confined to existing rights-of-way. 
The Commission responded to this in the Final Rule by noting that a 
corporate headquarters is not a natural gas facility; thus, such 
construction does not require any certificate authorization under the 
NGA.\47\ On rehearing, INGAA turns its focus to communication towers, 
arguing that since they, like office buildings, may be located remotely 
from the pipeline; we should find that they, too,

[[Page 70063]]

are exempt from Commission jurisdiction. We do not agree.
---------------------------------------------------------------------------

    \47\ Order No. 790, FERC Stats. & Regs. ] 31,351 at P 22 and 
n.39.
---------------------------------------------------------------------------

    37. A communication tower constructed by an interstate pipeline 
company for the purpose of supporting equipment used to monitor (and 
possibly control) the pipeline system's operation is a natural gas 
facility subject to our jurisdiction under the NGA. If the tower (or a 
building, or any facility or equipment which serves exclusively to make 
a pipeline's operations more efficient or economical) can be installed 
within an existing (or proposed) authorized area, the company can 
proceed under section 2.55(a). However, if it will be located outside 
an authorized area, then that facility must be constructed under either 
blanket or case-specific certificate authority. Although some of the 
types of facilities named in section 2.55(a) have evolved significantly 
since 1949, the function of the named facilities remains the same: They 
are incidental additions to an interstate transmission system, 
dependent upon and integrated into that larger system. Further, section 
2.55(a) describes qualifying facilities as ``[i]nstallations . . . 
which are merely auxiliary or appurtenant to an authorized or proposed 
transmission pipeline system,'' indicating that section 2.55(a) is only 
intended to apply to facilities that will be attached to or adjacent to 
the components of the system they support. When a company is able to 
construct facilities meeting this description in an area that has been 
or will be reviewed for environmental purposes by the Commission, then 
the company may proceed with such construction under section 2.55(a). 
However, it may be the case in many instances that a company will want 
or need to locate some of the auxiliary facilities specifically listed 
in section 2.55(a)--in particular, communication, pig launching/
receiving, and cathodic protection equipment--in locations requiring 
the use of additional rights-of-way, larger easements, or temporary 
work spaces that have not been included previously in an environmental 
review performed by the Commission. In those situations, the companies 
will need to proceed under an alternative form of authorization (i.e., 
under a blanket or case-specific certificate).\48\
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    \48\ Our discussion here should provide adequate clarification 
for INGAA, which professes to be puzzled by our statement in the 
Final Rule that although ``types of facilities are specifically 
listed in section 2.55(a) [this] does not mean that companies can 
necessarily rely in all instances on section 2.55(a) to install 
them.'' Order No. 790, FERC Stats. & Regs. ] 31,351 at P 25.
---------------------------------------------------------------------------

    38. National Fuel asks whether ``improvements such as buildings, 
roads, and parking lots for central offices, field and other offices, 
warehouses, [and] equipment yards'' can qualify under section 
2.55(a).\49\ We clarify they can, provided they meet section 2.55's 
location and function requirements. We note the Final Rule revised the 
section 157.202 definition of ``eligible facility'' to specify that 
auxiliary installations that will not qualify under section 2.55(a) 
because they will not satisfy that section's location or work space 
constraints may qualify for authorization under a company's blanket 
certificate. Companies will need to seek case-specific authorization 
for auxiliary facilities that are also not eligible for blanket 
authorization (e.g., facilities that would exceed the cost limits 
specified in section 157.208(d)).
---------------------------------------------------------------------------

    \49\ National Fuel's Request for Rehearing at 6.
---------------------------------------------------------------------------

    39. Finally, we note that because section 2.55 facilities are 
constructed and operated under the certificate authorization for the 
facilities that they augment or replace, prior authorization under NGA 
section 7(b) is necessary before a pipeline company can abandon 
auxiliary and replacement facilities constructed under section 2.55. 
INGAA complains that we neglected to address the ``burden of seeking 
such abandonment authority.'' \50\ The requirement for prior 
authorization under section 7(b) to abandon certificated facilities is 
statutory and cannot be waived by the Commission. Further, while 
section 157.202(b)(3) of the blanket certificate regulations states 
that for purposes of those regulations ```Facility' does not include 
the items described in section 2.55,'' we explained in the Final Rule 
that section 157.202(b)(3) only prevents companies from relying on 
their Part 157 blanket certificates to undertake activities, i.e., the 
construction and operation of qualifying auxiliary and replacement 
facilities, that qualify under section 2.55.\51\ We clarify here that 
section 157.202(b)(3) of the blanket certificate regulations does not 
preclude a pipeline company from relying on its Part 157 blanket 
certificate and the abandonment authority provided by section 157.216 
to abandon facilities constructed under section 2.55, provided the 
abandonment activity will meet the applicable environmental conditions 
and cost limits (i.e., the facilities to be abandoned could be 
constructed under the blanket certificate regulations' current cost 
limits, regardless of what the original construction costs may have 
been). We expect that activities to abandon most auxiliary facilities 
and many replacement facilities constructed under section 2.55 can 
satisfy these conditions, and thus enable companies to go forward with 
abandonments under section 157.216 of the blanket certificate 
regulations.
---------------------------------------------------------------------------

    \50\ See INGAA's Request for Rehearing at 51.
    \51\ See Order No. 790, FERC Stats. & Regs. ] 31,351 at P 46.
---------------------------------------------------------------------------

3. INGAA's Response to the NOPR
    40. INGAA objects to our treating its January 22, 2013 submission 
in response to the NOPR as a comment on the NOPR rather than as a 
request for rehearing of the underlying rejection of INGAA's position 
regarding the scope of authority provided by section 2.55(a).
    41. As described in the Final Rule and above, the NOPR was issued 
in response to INGAA's petition requesting that we ``affirm'' that 
installations of auxiliary facilities under section 2.55(a) are not 
restricted to the rights-of-way and temporary work spaces used to 
construct the existing facilities that will be augmented by the 
auxiliary facilities. We declined to do so, explaining in the NOPR that 
the Commission has never viewed section 2.55(a) as providing any 
authorization for pipeline companies to construct auxiliary facilities 
outside areas subject to environmental review and authorization by the 
Commission. On January 22, 2013, INGAA file a pleading styled ``Request 
for Rehearing.'' However, while the Commission's Office of the 
Secretary issued a tolling order (Order Granting Rehearing for Further 
Consideration) on February 20, 2013, such an order is not dispositive 
of the procedural posture of the underlying pleading (i.e., issuance of 
a tolling order in response to a submission styled as a request for 
rehearing does not constitute a finding by the Commission that 
rehearing indeed lies on the issues raised in the filing).
    42. In this instance, as noted in the Final Rule, the Commission 
ultimately determined to treat the January 22, 2013 pleading as 
comments on the NOPR, explaining that the NOPR's clarification of the 
existing scope of the authority bestowed by section 2.55(a) did not 
``effect any change [in our regulations]; rather, it articulated 
existing, long-standing constraints and obligations with respect to 
auxiliary installations. Because the NOPR does not constitute an 
instant Final Rule [as alleged by INGAA], we find no cause to consider 
requests for rehearing in response to the

[[Page 70064]]

NOPR.'' \52\ The Commission's procedural choice to issue a NOPR in 
response to INGAA's petition and to treat its January 22, 2013 
submission as comments rather than as a rehearing request did not 
deprive INGAA of any due process. Issuance of the NOPR provided INGAA 
the opportunity to present arguments that the Commission should amend 
section 2.55(a) to expand the scope of construction that can be done 
under that section. We also considered and responded to the concerns 
and arguments presented in INGAA's January 22, 2013 filing in the Final 
Rule. Further, our issuance of the NOPR provided the notice and comment 
forum which INGAA urged was required before more rigorous enforcement 
of the section 2.55(a) locational restrictions. As explained in the 
Final Rule, we do not intend to look back in order to determine whether 
installation of auxiliary facilities prior to the effective date of the 
Final Rule conform to section 2.55(a) siting limitations or pursue any 
enforcement action with respect to any installations prior to the 
effective date of the Final Rule that do not conform to section 2.55(a) 
siting limitations, unless it comes to our attention that remedial 
environmental measures need to be taken.\53\
---------------------------------------------------------------------------

    \52\ Order No. 790, FERC Stats. & Regs. ] 31,351 at n.19.
    \53\ Order No. 790, FERC Stats. & Regs. ] 31,351 at P 50.
---------------------------------------------------------------------------

4. Compliance With Executive Orders
    43. INGAA repeats its claim that our action is inconsistent with 
Executive Orders directing agencies to avoid unduly burdensome 
regulations.\54\ The impetus behind and function of section 2.55 is to 
reduce regulatory burdens by providing a means for companies to install 
facilities without the need to obtain blanket or case-specific 
certificate authorization and our clarification of its operation 
imposes no new burden. We acknowledged that some additional burden will 
be associated with new landowner notification requirements adopted by 
the Final Rule, but we found that the anticipated benefits justify this 
new regulation. Further, as discussed below, in response to comments on 
the landowner notification requirement adopted by the Final Rule, we 
significantly reduce the number of instances in which companies will be 
required to contact landowners before entering upon their properties. 
These revisions will substantially reduce the burden associated with 
providing prior notification. Finally, as previously observed, the 
Commission has directed staff to perform an internal assessment of the 
effectiveness of our regulations, as we are continually seeking to 
streamline our regulations in order to foster competitive markets, 
facilitate enhanced competition, and avoid imposing undue burdens on 
regulated entities or unnecessary costs on those entities or their 
customers.\55\
---------------------------------------------------------------------------

    \54\ INGAA's Request for Rehearing at 41.
    \55\ Order No. 790, FERC Stats. & Regs. ] 31,351 at P 44.
---------------------------------------------------------------------------

B. Landowner Notification

    44. The Final Rule adopted regulations requiring companies to 
notify landowners prior to initiating auxiliary and replacement 
projects or maintenance activities to give landowners adequate notice 
(to the extent practicable) of a company entering onto their property 
in order to avoid potential conflict between landowners and gas 
companies. Specifically, the Final Rule added a new section 2.55(c) and 
revised existing section 380.15(c) to require a natural gas company to 
make a good faith effort to notify landowners at least five days in 
advance of commencing an auxiliary or replacement project or of any 
maintenance that will cause ground disturbance. The notice must 
include: (1) A brief description of the activity to be conducted or 
facilities to be added or replaced and the expected effects on 
landowners; (2) the name and phone number of a company representative 
who is knowledgeable about the project; and (3) a description of the 
Commission's Dispute Resolution Division Helpline and its phone number, 
as explained in section 1b.21(g) of the Commission's regulations.
1. Waiver of Five-Day Prior Notice
    45. INGAA requests we clarify that so long as a company provides 
landowners with at least five days advance notice, landowners can waive 
all or part of the post-notice waiting period. INGAA states that 
allowance for the waiver would be similar to the landowner notice 
waiver provision under the blanket certificate regulations, which 
allows a company that has given a landowner notice of a project to 
proceed before the end of the required post-notice waiting period, 
provided the landowner gives written approval to do so.\56\
---------------------------------------------------------------------------

    \56\ INGAA's Request for Rehearing at 15 (citing 18 CFR 
157.203(d)(1) (2014)). Section 157.203 of the Commission's 
regulations requires companies to give landowners notice at least 45 
days prior to commencing construction under its automatic blanket 
certificate authority. A landowner may waive the 45-day prior notice 
requirement in writing so long as notice has been provided.
---------------------------------------------------------------------------

    46. We agree that landowners, once notified, should be allowed to 
waive any portion of the post-notice waiting period by giving written 
approval. Accordingly, we will modify sections 2.55(c) and 380.15(c) to 
permit landowners to waive the post-notice waiting period.
2. Emergency Exemption to Notice Requirement
    47. The Final Rule provided that ``[f]or activities required to 
respond to an emergency, the five-day prior notice period does not 
apply'' under sections 2.55 and 380.15,\57\ reasoning that companies 
should not hesitate to undertake immediate action in an emergency 
situation. However, that any events that do not necessitate immediate 
access to system facilities would still be subject to a minimum five-
day prior notice.\58\
---------------------------------------------------------------------------

    \57\ Order No. 790, FERC Stats. & Regs. ] 31,351 at P 63.
    \58\ Id.
---------------------------------------------------------------------------

    48. INGAA and National Fuel request that we clarify the scope of 
the emergency exemption provided by sections 2.55(c) and 380.15(c) by 
revising those sections to be consistent with the language in section 
157.203(d)(3) of the blanket certificate regulations.\59\ Specifically, 
section 157.203(d)(3) states that the requirement for prior 
notification to landowners does not apply when a company needs to 
initiate construction activities under section 2.55 or maintenance 
activities under section 380.15 done for safety, DOT compliance, or 
environmental or unplanned maintenance reasons that are not foreseen 
and that require immediate attention by the company.\60\ We will revise 
sections 2.55(c) and 380.15(c) as requested. However, the exemption 
from the requirement for prior notice to landowners is only intended to 
apply in unforeseen situations where a company needs to take immediate 
action to correct a sudden incompatibility with DOT safety requirements 
or to avoid imminent danger or harm to life, property, or the 
environment. Therefore, while many routine and scheduled activities are 
safety-related or necessary to maintain or come into compliance with 
DOT regulations, such routine, foreseeable, or scheduled activities are 
not emergencies, and are not exempt from the requirement for prior 
notice to landowners.
---------------------------------------------------------------------------

    \59\ INGAA's Request for Rehearing at 16 and National Fuel's 
Request for Rehearing at 3.
    \60\ 18 CFR 157.203(d)(3) (2014).
---------------------------------------------------------------------------

    49. National Fuel asserts that if an emergency activity is exempt 
from the prior landowner notification requirements under section 
2.55(c) or

[[Page 70065]]

section 380.15(c), there should be no need for a pipeline to rely on 
and comply with the provisions of Part 284, Subpart I, of the 
Commission's regulations.\61\ We agree and clarify that when companies 
seek to act under section 2.55 or section 380.15(c), and need to act 
promptly to respond to an emergency, and are thus unable to provide 
landowners with at least five days advance notice, then the emergency 
nature of the action functions as a waiver of the prior notice 
requirement. Thus, provided that with the exception of prior notice, an 
emergency response action meets all other section 2.55 or section 
380.15(c) requirements, a company may proceed under section 2.55 or 
section 380.15(c). However, any emergency response action that would 
not qualify under section 2.55 or section 380.15(c) (e.g., construction 
which would take place outside previously approved areas), would 
require a company to proceed under other emergency authority, such as 
Part 284, Subpart I.
---------------------------------------------------------------------------

    \61\ National Fuel's Request for Rehearing at 4.
---------------------------------------------------------------------------

3. Affected Landowners
    50. The Final Rule stated that prior notification be provided to 
``affected landowners,'' described in sections 2.55(c) and 380.15(c), 
as property owners that will be ``directly affected (i.e., crossed or 
used), by the proposed activity, including all rights-of-way, facility 
sites (including compressor stations, well sites, and all above-ground 
facilities), access roads, pipe and contractor yards, and temporary 
work space.'' \62\ INGAA and National Fuel request that the Commission 
clarify that ``affected landowners'' only include landowners that will 
be subject to ground disturbance on their properties, and not 
landowners whose property is merely crossed and not otherwise 
disturbed.\63\
---------------------------------------------------------------------------

    \62\ Order No. 790, FERC Stats. & Regs. ] 31,351 at P 56.
    \63\ INGAA's Request for Rehearing at 16-17 and National Fuel's 
Request for Rehearing at 4-5.
---------------------------------------------------------------------------

    51. As proposed in the NOPR, section 2.55(c) and 380.15(c) would 
have required a company to give prior notification to all landowners 
whose property would be used or crossed. As proposed in the NOPR, 
sections 2.55(c) and 380.15(c) also would have required a company to 
give prior notification to owners of abutting properties and the owners 
of residences within 50 feet.\64\ However, in response to comments on 
the NOPR, the Final Rule revised sections 2.55(c) and 380.15(c) to 
state that companies are only required to give prior notification to 
the owners of those properties that are crossed or used when companies 
perform ground-disturbing activities.\65\ In response to INGAA's and 
National Fuel's comments, we find it is appropriate to further revise 
sections 2.55(c) and 380.15(c) to specify that companies must provide 
prior notice only to the owner of property used for a ground-disturbing 
activity, and not to landowners whose property is crossed en route to 
the site of that activity.\66\
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    \64\ NOPR, FERC Stats. & Regs. ] 32,696 at P 30.
    \65\ Order No. 790, FERC Stats. & Regs. ] 31,351 at P 56.
    \66\ We note that this clarification does not exempt companies 
from complying with the terms of any existing easement agreements or 
any applicable state or local laws governing the use of or access to 
property not within a company's rights-of-way or facility sites.
---------------------------------------------------------------------------

    52. INGAA and National Fuel also request that the Commission 
clarify that the five-day prior notice requirement does not apply when 
the ground-disturbing activity will occur entirely within the fence 
line of an existing above-ground facility site.\67\ In situations where 
a company's facilities are located inside a fenced area on property 
that the company does not own but to which it has easement rights, we 
agree that a requirement of prior notice to the landowner is not 
necessary if all ground disturbance will be confined to within the 
fenced area, and we will revise sections 2.55(c)(1) and 380.15(c)(1) 
accordingly. When any ground disturbance caused by a company's 
activities to install or replace equipment under section 2.55 or by 
equipment associated with maintenance activities under section 380.15 
is confined inside the company's fenced-in easement areas, e.g., a 
compressor station or site used for pigging equipment, the activities 
do not present the same potentially hazardous situations or 
inconvenience to a landowner as ground-disturbing activities in an 
unfenced area, e.g., the replacement of pipe under the landowner's 
driveway. However, even when companies' ground-disturbing activities 
will be within their fenced-in easement areas, as a matter of courtesy, 
we encourage companies to give prior notice to landowners to the extent 
practicable.
---------------------------------------------------------------------------

    \67\ Id.
---------------------------------------------------------------------------

4. One-Call Obligations
    53. INGAA requests we clarify that the requirement for prior notice 
to landowners adopted by the Final Rule for activities under sections 
2.55 and 380.15 does not apply to ``One Call'' obligations.\68\ INGAA 
states that such programs require companies to mark their facilities 
within 48 to 72 hours of receiving notification that a landowner or 
third party will be digging near natural gas facilities to prevent 
damage. Therefore, INGAA argues that a company cannot wait five days to 
comply with its ``One Call'' obligations.\69\ We agree that the ``One 
Call'' obligations do not fall under the Final Rule's landowner 
notification requirements. This is because merely marking the location 
of buried natural gas facilities (typically with flags or spray paint) 
does not involve a ground disturbance. However, in the event a 
company's response to a ``One Call'' request results in ground-
disturbing activity to locate, relocate, or isolate any of its 
facilities,\70\ then the exemption provided in the prior notice 
provisions for emergency activities would apply.
---------------------------------------------------------------------------

    \68\ The ``One Call'' program is a service used by public 
utilities and some private sector companies (e.g., oil pipeline and 
cable television) to provide pre-construction information to 
contractors or other maintenance workers on the location of 
underground pipes, cables, and culverts. Similar utility-marking 
programs go by different names in different regions.
    \69\ INGAA's Request for Rehearing at 17.
    \70\ National Fuel notes that ``to determine and mark the 
precise location of its facilities . . . may require some 
excavation.'' National Fuel's Request for Rehearing at 3-4.
---------------------------------------------------------------------------

5. Burden Resulting From the Landowner Notification Requirement
    54. INGAA claims that we have not met our obligation to estimate 
the burden of the Final Rule's notification requirement in a way that 
is not arbitrary or capricious, and then weigh the benefit of the rule 
against that burden.\71\ In this regard, National Fuel states that our 
use of an estimate based solely on the number of section 2.55(a) 
auxiliary installation activities performed each year (which, it points 
out, are construction activities) to derive a reasonable estimate of 
the number of ground-disturbing activities under section 2.55 and 
section 380.15 that would require landowner notification, is arbitrary 
and too low.\72\
---------------------------------------------------------------------------

    \71\ INGAA's Request for Rehearing at 17-18.
    \72\ National Fuel's Request for Rehearing at 6.
---------------------------------------------------------------------------

    55. To estimate the burden of the Final Rule's section 2.55 and 
section 380.15 landowner notification requirements, Commission staff 
surveyed nine jurisdictional companies, and based on that sample, 
estimated that all 165 jurisdictional companies perform approximately 
7,605 auxiliary installation projects each year under section 2.55(a), 
including activities that do not involve ground disturbance.\73\ While 
we recognize that the number of maintenance activities undertaken by a 
company may far exceed the number of its auxiliary installations, we 
believe

[[Page 70066]]

ground-disturbing activities for maintenance purposes under section 
380.15, like ground-disturbing activities to install auxiliary 
facilities under section 2.55(a) and replace facilities under section 
2.55(b), are significantly fewer in number than the activities under 
those sections that do not involve ground disturbance. We also believe 
that ground-disturbing activities, including ground-disturbing 
maintenance, generally take advance planning.\74\ Further, companies 
have long been subject to the requirement to give landowners notice of 
certain planned activities, and therefore presumably already have the 
information, personnel, and other resources necessary to enable them to 
satisfy those other, long-standing landowner notification requirements.
---------------------------------------------------------------------------

    \73\ Order No. 790, FERC Stats. & Regs. ] 31,351 at P 77 and 
n.115.
    \74\ NOPR, FERC Stats. & Regs. ] 32,696 at P 39.
---------------------------------------------------------------------------

    56. In view of these considerations, we believe our estimate in the 
Final Rule of the total number of all companies' annual auxiliary 
installations under section 2.55(a) that involve ground disturbance was 
reasonable, and that it also was reasonable to multiply that number by 
two to estimate the total annual number of activities--including all 
auxiliary installations under sections 2.55(a), replacement projects 
under section 2.55(b), and maintenance activities under section 
380.15--that will involve ground disturbance and will therefore require 
prior notice to landowners. Further, we believe the reasonableness of 
our burden estimate in the Final Rule is also supported by the 
clarification in this order that ground-disturbing activities are 
exempt from the prior notice requirement in emergency situations and in 
situations where all ground disturbances will be confined entirely to 
areas within the fence line of an existing above-ground facility site.
    57. National Fuel states that every year it performs ``thousands'' 
of ground-disturbing maintenance activities that will now require 
landowner notification.\75\ National Fuel fears that activities such as 
maintaining existing access roads and existing erosion control 
structures will require it to satisfy unduly burdensome landowner 
notification requirements.\76\ We recognize that some activities to 
maintain existing access roads (e.g., scraping to remove old asphalt 
and resurfacing) or existing erosion control structures (e.g., pushing 
back soil or rocks that were intended to prevent erosion) may not 
involve a significant amount of ground disturbance. However, such 
activities require the use of bulldozers, backhoes, dump trucks and 
other equipment that can present safety hazards and cause inconvenience 
to landowners. Therefore, we will not exempt ground-disturbing 
activities under section 380.15 to maintain existing facilities from 
the landowner notification requirement.
---------------------------------------------------------------------------

    \75\ National Fuel's Request for Rehearing at 6.
    \76\ Id.
---------------------------------------------------------------------------

    58. While INGAA and National Fuel insist that we have 
underestimated the burden that the landowner notification will cause 
the industry, this assertion assumes that most jurisdictional companies 
were not already notifying landowners when work is to be performed on 
their property, whether such notification is required or not.
    59. Section 157.6(d)(1) of the regulations requires applicants for 
case-specific certificate authority for construction projects to notify 
all landowners that will be affected by the project. Section 157.203(d) 
of the blanket certificate regulations requires that companies give 
landowners notice of all projects subject to those regulations' prior 
notice provisions. Thus, companies likely have a database of landowners 
dating from the time many of their facilities were originally put in 
service. As discussed in the Final Rule, we believe most companies 
maintain and update these databases because, regardless of their size, 
they need to know (to enhance, replace, and maintain their facilities 
and to respond to emergencies) precisely where their rights-of-way lie, 
how to get to their facilities, and how to contact the owners of the 
properties on which their facilities are located.\77\ As also discussed 
in the Final Rule, companies need to periodically update landowner 
information to be able to comply with DOT's Pipeline and Hazardous 
Materials Safety Administration's (PHMSA) biennial reporting 
requirement.\78\ Therefore, to identify the landowners to notify, 
companies will not be starting from scratch, but instead should be able 
to rely on the landowner records previously compiled to satisfy the 
Commission's and PHMSA's notification requirements. Since PHMSA's 
notification requirement is ongoing, a company's efforts to update 
portions of its landowner database as needed to meet the section 2.55 
and section 380.15 notice provisions can be expected to result in a 
corresponding reduction in the company's efforts necessary to comply 
with PHMSA's notification requirement.
---------------------------------------------------------------------------

    \77\ See Order No. 790, FERC Stats. & Regs. ] 31,351 at P 79.
    \78\ Id.
---------------------------------------------------------------------------

    60. Further, comments on the NOPR call attention to some companies' 
ongoing community relations programs, which like the required PHMSA 
report, serve to inform landowners of their plans for construction and 
maintenance activities in coming months.\79\ While these notifications 
generally do not include specific details regarding the work that may 
take place on a landowner's property and only provide an approximate 
time period for when the work will be done, companies nevertheless have 
to identify landowners to send out these notifications. Companies 
should be able to use landowner lists developed in connection with 
community relations programs and in conjunction with compliance with 
PHMSA requirements as a basis for meeting the prior notice requirements 
of sections 2.55(c) and 380.15(c). In our burden estimate, we did not 
attempt to account for lists that companies may have on hand to send 
information to landowners as part of community relations or PHMSA 
compliance.
---------------------------------------------------------------------------

    \79\ See, e.g., Golden Triangle Storage, Inc.'s March 5, 2013 
Comments on the NOPR at 4; INGAA's March 5, 2013 Comments on the 
NOPR at 13-14; MidAmerican Energy Pipeline Group's March 5, 2013 
Comments on the NOPR at 4; National Fuel's March 5, 2013 Comments on 
the NOPR at 4; Southern Star Central Gas Pipeline, Inc.'s March 5, 
2013 Comments on the NOPR at 6-7; and WBI Energy Transmission Inc.'s 
March 5, 2013 Comments on the NOPR at 7.
---------------------------------------------------------------------------

C. Consistency With the Commission's Regulations

    61. INGAA requests that the Commission revise certain regulations 
to ensure regulatory consistency as a result of the Final Rule. INGAA 
notes that section 157.206(b)(1) of the Commission's regulations for 
blanket certificate projects includes a general reference to section 
380.15 \80\ and proposes this be revised to specifically refer to 
sections 380.15(a) and (b). We agree and will revise section 
157.206(b)(1) accordingly. This order and the Final Rule reduced the 
number of landowners to which the NOPR would have required that 
companies give prior notice for purposes of section 2.55 and section 
380.15 activities by modifying the definition of ``affected 
landowners.'' ``Affected landowners'' now excludes owners of properties 
that will need to be crossed but not otherwise disturbed, as well as 
owners of abutting properties and owners of properties that contain 
residences within 50 feet of planned work areas where no ground-
disturbing work will occur; in contrast the blanket certificate 
regulations' landowner notification

[[Page 70067]]

requirement relies on the definition of affected landowners in section 
157.6(d)(2) of the regulations, which includes these additional 
property owners. Further, section 157.203(d)(1) requires at least 45 
days prior notice to landowners for automatic blanket projects,\81\ 
while the new landowner notification requirement for section 2.55 and 
section 380.15 activities requires a minimum of only five days prior 
notice.\82\
---------------------------------------------------------------------------

    \80\ INGAA's Request for Rehearing at 19-20.
    \81\ The requirement in section 157.203(d)(1) for at least 45 
days prior notice is separate from the requirement in section 
157.205(d)(2) that projects exceeding the automatic cost limit be 
publically noticed by the Commission at least 60 days in advance, 
with the project sponsor to notify affected landowners the earlier 
of (1) three days from when the Commission assigns a docket number 
to the proposed project or (2) when the project sponsor initiates 
easement negotiations for the proposed project.
    \82\ As previously discussed, whereas section 2.55 and section 
380.15 of the regulations do not include any specific environmental 
conditions because activities under those sections are limited to 
areas subject to environment review by the Commission, an activity 
cannot go forward under the blanket certificate regulations unless 
the company has satisfied all of the specific environmental 
conditions set forth in section 157.206 of the blanket certificate 
regulations.
---------------------------------------------------------------------------

    62. INGAA also notes that the Final Rule replaced the NOPR's 
proposed term ``original'' in section 2.55(b)(1)(ii) with the term 
``existing'' but did not make similar changes to Appendix A of Part 2. 
For consistency, INGAA requests that the Commission replace the term 
``original'' with ``existing'' in Appendix A of Part 2.\83\ We agree 
and will revise Appendix A of Part 2.
---------------------------------------------------------------------------

    \83\ INGAA's Request for Rehearing at 20.
---------------------------------------------------------------------------

III. Information Collection Statement

    63. The Paperwork Reduction Act (PRA) \84\ requires each federal 
agency to seek and obtain Office of Management and Budget (OMB) 
approval before undertaking a collection of information directed to ten 
or more persons or contained in a rule of general applicability.\85\ 
The OMB's regulations implementing the PRA require approval of certain 
information collection requirements imposed by agency rules.\86\
---------------------------------------------------------------------------

    \84\ 44 U.S.C. 3501-3520 (2012).
    \85\ OMB's regulations at 5 CFR 1320.3(c)(4)(i) (2014) require 
that ``[a]ny recordkeeping, reporting, or disclosure requirement 
contained in a rule of general applicability is deemed to involve 
ten or more persons.''
    \86\ 5 CFR 1320 (2014).
---------------------------------------------------------------------------

    64. The Commission submitted the Final Rule's information 
collection statement for landowner notification requirements under 
sections 2.55, 157.203(d)(3)(i), and 380.15 of the regulations to OMB 
for its review and approval, and OMB granted approval under OMB Control 
No. 1902-0128. While this rule clarifies certain aspects of the 
existing information collection requirements for landowner 
notification, it does not add to these requirements. Accordingly, a 
copy of this Final Rule will be sent to OMB for informational purposes 
only.

IV. Environmental Analysis

    65. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\87\ The 
Commission has categorically excluded certain actions from these 
requirements as not having a significant effect on the human 
environment.\88\ Generally, the regulatory actions taken in this 
rulemaking proceeding fall within the categorical exclusions in the 
Commission's regulations for actions that are clarifying, corrective, 
or procedural and for information gathering, analysis, and 
dissemination.\89\ Accordingly, an environmental review is not 
necessary and has not been prepared in connection with this rulemaking.
---------------------------------------------------------------------------

    \87\ Regulations Implementing the National Environmental Policy 
Act of 1969, Order No. 486, 52 FR 47897 (December 17, 1987), FERC 
Stats. & Regs., Regulations Preambles 1986-1990 ] 30,783 (1987).
    \88\ 18 CFR 380.4 (2014).
    \89\ 18 CFR 380.4(a)(1) and (5) (2014).
---------------------------------------------------------------------------

V. Document Availability

    66. 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 5:00 
p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 
20426.
    67. 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.
    68. User assistance is available for eLibrary and the FERC's Web 
site during normal business hours from FERC Online Support at (202) 
502-6652 (toll free at 1-866-208-3676) or email at 
ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
public.referenceroom@ferc.gov.

VI. Effective Date and Congressional Notification

    69. These regulations are effective January 26, 2015. The 
Commission has determined that this rule is not a ``major rule'' as 
defined in section 351 of the Small Business Regulatory Enforcement 
Fairness Act of 1996.

List of Subjects

18 CFR Part 2

    Administrative practice and procedure, and Reporting and 
recordkeeping requirements.

18 CFR Part 157

    Administrative practice and procedure, Natural gas, and Reporting 
and recordkeeping requirements.

18 CFR Part 380

    Environmental impact statements, and Reporting and recordkeeping 
requirements.

    By the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.

    In consideration of the foregoing, the Commission amends parts 2, 
157, and 380, chapter I, title 18, Code of Federal Regulations, as 
follows:

PART 2--GENERAL POLICY AND INTERPRETATIONS

0
1. The authority citation for part 2 continues to read as follows:

    Authority:  5 U.S.C. 601; 15 U.S.C. 717-717z, 3301-3432; 16 
U.S.C. 792-828c, 2601-2645, 42 U.S.C. 4321-4370h, 7101-7352.


0
2. Amend Sec.  2.55 by revising paragraphs (c)(1) and (2) to read as 
follows:


Sec.  2.55  Definition of terms used in section 7(c).

* * * * *
    (c) * * *
    (1)(i) No activity described in paragraphs (a) and (b) of this 
section that involves ground disturbance is authorized unless a company 
makes a good faith effort to notify in writing each affected landowner, 
as noted in the most recent county/city tax records as receiving the 
tax notice, whose property will be used and subject to ground 
disturbance as a result of the proposed activity, at least five days 
prior to commencing any activity under this section. A landowner may 
waive the five-day prior notice requirement in writing, so long as the 
notice has been provided. No landowner notice under this section is 
required:

[[Page 70068]]

    (A) If all ground disturbance will be confined entirely to areas 
within the fence line of an existing above-ground site of facilities 
operated by the company; or
    (B) For activities done for safety, DOT compliance, or 
environmental or unplanned maintenance reasons that are not foreseen 
and that require immediate attention by the company.
    (ii) The notification shall include at least:
    (A) A brief description of the facilities to be constructed or 
replaced and the effect the activity may have on the landowner's 
property;
    (B) The name and phone number of a company representative who is 
knowledgeable about the project; and
    (C) A description of the Commission's Dispute Resolution Division 
Helpline, which an affected person may contact to seek an informal 
resolution of a dispute as explained in section 1b.21(g) of the 
Commission's regulations and the Dispute Resolution Division Helpline 
number.
    (2) ``Affected landowners'' include owners of interests, as noted 
in the most recent county/city tax records as receiving tax notice, in 
properties (including properties subject to rights-of-way and easements 
for facility sites, compressor stations, well sites, and all above-
ground facilities, and access roads, pipe and contractor yards, and 
temporary work space) that will be directly affected by (i.e., used) 
and subject to ground disturbance as a result of activity under this 
section.
* * * * *
0
3. Revise appendix A to part 2 to read as follows:

Appendix A to Part 2--Guidance for Determining the Acceptable 
Construction Area for Auxiliary and Replacement Facilities

    These guidelines shall be followed to determine what area may be 
used to construct the auxiliary or replacement facility. 
Specifically, they address what areas, in addition to the permanent 
right-of-way, may be used.
    An auxiliary or replacement facility must be within the existing 
right-of-way or facility site as specified by Sec.  2.55(a)(1) or 
Sec.  2.55(b)(1)(ii). Construction activities for the auxiliary or 
replacement facility can extend outside the current permanent right-
of-way if they are within the temporary and permanent right-of-way 
and associated work spaces authorized for the construction of the 
existing installation.
    If documentation is not available on the location and width of 
the temporary and permanent rights-of-way and associated work spaces 
that were used to construct the existing facility, the company may 
use the following guidance for the auxiliary installation or 
replacement, provided the appropriate easements have been obtained:
    a. Construction should be limited to no more than a 75-foot-wide 
right-of-way including the existing permanent right-of-way for large 
diameter pipeline (pipe greater than 12 inches in diameter) to carry 
out routine construction. Pipeline 12 inches in diameter and smaller 
should use no more than a 50-foot-wide right-of-way.
    b. The temporary right-of-way (working side) should be on the 
same side that was used in constructing the existing pipeline.
    c. A reasonable amount of additional temporary work space on 
both sides of roads and interstate highways, railroads, and 
significant stream crossings and in side-slope areas is allowed. The 
size should be dependent upon site-specific conditions. Typical work 
spaces are:

------------------------------------------------------------------------
                                             Typical extra area (width/
                   Item                                length)
------------------------------------------------------------------------
Two lane road (bored).....................  25-50 by 100 feet.
Four lane road (bored)....................  50 by 100 feet.
Major river (wet cut).....................  100 by 200 feet.
Intermediate stream (wet cut).............  50 by 100 feet.
Single railroad track.....................  25-50 by 100 feet.
------------------------------------------------------------------------

    d. The auxiliary or replacement facility must be located within 
the permanent right-of-way or, in the case of nonlinear facilities, 
the cleared building site. In the case of pipelines this is assumed 
to be 50 feet wide and centered over the pipeline unless otherwise 
legally specified.
    However, use of the above guidelines for work space size is 
constrained by the physical evidence in the area. Areas obviously 
not cleared during the existing construction, as evidenced by stands 
of mature trees, structures, or other features that exceed the age 
of the facility being replaced, should not be used for construction 
of the auxiliary or replacement facility.
    If these guidelines cannot be met, the company should consult 
with the Commission's staff to determine if the exemption afforded 
by Sec.  2.55 may be used. If the exemption may not be used, 
construction authorization must be obtained pursuant to another 
regulation under the Natural Gas Act.

PART 157--APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND 
NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER 
SECTION 7 OF THE NATURAL GAS ACT

0
4. The authority citation for part 157 continues to read as follows:

    Authority:  15 U.S.C. 717-717z.


0
5. Amend Sec.  157.206 by revising paragraph (b)(1) to read as follows:


Sec.  157.206  Standard Conditions.

* * * * *
    (b) * * *
    (1) The certificate holder shall adopt the requirements set forth 
in Sec.  380.15(a) and (b) of this chapter for all activities 
authorized by the blanket certificate and shall issue the relevant 
portions thereof to construction personnel, with instructions to use 
them.
* * * * *

PART 380--REGULATIONS IMPLEMENTING THE NATIONAL ENVIRONMENTAL 
POLICY ACT

0
6. The authority citation for part 380 continues to read as follows:

    Authority:  42 U.S.C. 4321-4370h, 7101-7352; E.O. 12009, 3 CFR 
1978 Comp., p. 142.


0
7. Amend Sec.  380.15 by revising paragraphs (c)(1) and (2) to read as 
follows:


Sec.  380.15  Siting and maintenance requirements.

* * * * *
    (c) * * *
    (1)(i) No activity described in paragraphs (a) and (b) of this 
section that involves ground disturbance is authorized unless a company 
makes a good faith effort to notify in writing each affected landowner, 
as noted in the most recent county/city tax records as receiving the 
tax notice, whose property will be used and subject to ground 
disturbance as a result of the proposed activity, at least five days 
prior to commencing any activity under this section. A landowner may 
waive the five-day prior notice requirement in writing, so long as the 
notice has been provided. No landowner notice under this section is 
required:
    (A) If all ground disturbance will be confined entirely to areas 
within the fence line of an existing above-ground site of facilities 
operated by the company; or
    (B) For activities done for safety, DOT compliance, or 
environmental or unplanned maintenance reasons that are not foreseen 
and that require immediate attention by the company.
    (ii) The notification shall include at least:
    (A) A brief description of the facilities to be constructed or 
replaced and the effect the activity may have on the landowner's 
property;
    (B) The name and phone number of a company representative who is 
knowledgeable about the project; and
    (C) A description of the Commission's Dispute Resolution Division 
Helpline, which an affected person may contact to seek an informal 
resolution of a dispute as explained in section 1b.21(g) of the 
Commission's regulations and the Dispute Resolution Division Helpline 
number.

[[Page 70069]]

    (2) ``Affected landowners'' include owners of interests, as noted 
in the most recent county/city tax records as receiving tax notice, in 
properties (including properties subject to rights-of-way and easements 
for facility sites, compressor stations, well sites, and all above-
ground facilities, and access roads, pipe and contractor yards, and 
temporary work space) that will be directly affected by (i.e., used) 
and subject to ground disturbance as a result of activity under this 
section.
* * * * *
[FR Doc. 2014-27907 Filed 11-24-14; 8:45 am]
BILLING CODE 6717-01-P

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