Five-Year Review of the Oil Pipeline Index, 9448-9460 [2021-03120]

Download as PDF 9448 Federal Register / Vol. 86, No. 29 / Tuesday, February 16, 2021 / Rules and Regulations security-based swap dealers or major security-based swap participants pursuant to section 15F(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78o–10(b)) shall become effective sooner than the normal 60 day waiting period provided in Rule 15Fb3–2(b) (§ 240.15Fb3–2(b) of this chapter). * * * * * By the Commission. Dated: December 22, 2020. Vanessa A. Countryman, Secretary. [FR Doc. 2020–28819 Filed 2–12–21; 8:45 am] BILLING CODE 8011–01–P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission I. Background A. Establishment of the Indexing Methodology 18 CFR Part 342 [Docket No. RM20–14–000] Five-Year Review of the Oil Pipeline Index Federal Energy Regulatory Commission, Department of Energy. ACTION: Order establishing index level. AGENCY: The Federal Energy Regulatory Commission (Commission) issues this Final Order concluding its five-year review of the index level used to determine annual changes to oil pipeline rate ceilings. The Commission establishes an index level of Producer Price Index for Finished Goods plus 0.78% (PPI–FG+0.78%) for the five-year period commencing July 1, 2021. DATES: This order is effective February 16, 2021. FOR FURTHER INFORMATION CONTACT: Evan Steiner (Legal Information), Office of the General Counsel, 888 First Street NE, Washington, DC 20426, (202) 502–8792 Monil Patel (Technical Information), Office of Energy Market Regulation, 888 First Street NE, Washington, DC 20426, (202) 502–8296 SUPPLEMENTARY INFORMATION: 1. On June 18, 2020, the Commission issued a Notice of Inquiry initiating its five-year review to establish the oil pipeline index level for the July 1, 2021 to June 30, 2026 time period.1 The NOI requested comment regarding: (a) The proposed index level of Producer Price Index for Finished Goods plus 0.09% (PPI–FG+0.09%); and (b) any alternative khammond on DSKJM1Z7X2PROD with RULES SUMMARY: 1 Five-Year Review of the Oil Pipeline Index, 171 FERC ¶ 61,239, at P 1 (2020) (NOI). VerDate Sep<11>2014 15:57 Feb 12, 2021 methodologies for calculating the index level. 2. For the reasons discussed below, we adopt an index level of PPI– FG+0.78%. The departure from the NOI results from: (a) Trimming the data set to the middle 80% of cost changes; (b) adopting Designated Carriers’ 2 proposal to adjust the data set to remove the effects of the Commission’s 2018 income tax policy change for Master Limited Partnership (MLP)-owned pipelines; and (c) updated Form No. 6 filings and other corrections to the data set. The Commission’s indexing calculations and other data analysis are contained in Attachment A to this order. As discussed below, we decline to adopt other changes to the index calculation proposed by commenters. Jkt 253001 3. The Energy Policy Act of 1992 (EPAct 1992) required the Commission to establish a ‘‘simplified and generally applicable’’ ratemaking methodology 3 that was consistent with the just and reasonable standard of the Interstate Commerce Act (ICA).4 To implement this mandate, the Commission issued Order No. 561 5 establishing an indexing methodology that allows oil pipelines to change their rates subject to certain ceiling levels as opposed to making cost-of-service filings.6 4. In Order No. 561, the Commission committed to review the index level every five years to ensure that it adequately reflects changes to industry 2 Designated Carriers include Buckeye Partners, L.P., Colonial Pipeline Company, Energy Transfer LP, Enterprise Products Partners L.P., and Plains All American Pipeline, L.P. 3 Public Law 102–486 1801(a), 106 Stat. 3010 (Oct. 24, 1992). This mandate to establish a simplified and generally applicable ratemaking methodology specifically excluded the TransAlaska Pipeline System (TAPS), or any pipeline delivering oil, directly or indirectly, into TAPS. Id. 1804(2)(B). 4 49 U.S.C. app. 1 et seq. 5 Revisions to Oil Pipeline Regulations Pursuant to Energy Policy Act of 1992, Order No. 561, 58 FR 58753 (Nov. 4, 1993) FERC Stats. & Regs. ¶ 30,985 (1993) (cross-referenced at 65 FERC ¶ 61,109), order on reh’g, Order No. 561–A, FERC Stats. & Regs. ¶ 31,000 (1994) (cross-referenced at 68 FERC ¶ 61,138), aff’d sub nom. Ass’n of Oil Pipe Lines v. FERC, 83 F.3d 1424 (D.C. Cir. 1996) (AOPL I). 6 Pursuant to the Commission’s indexing methodology, oil pipelines change their rate ceiling levels effective every July 1 by ‘‘multiplying the previous index year’s ceiling level by the most recent index published by the Commission.’’ 18 CFR 342.3(d)(1). Oil pipelines may adjust their rates to the ceiling levels pursuant to Commission’s regulations so long as no protest or complaint demonstrates that the index rate change substantially diverges from the pipeline’s cost changes. Id. 343.2(c)(1). PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 costs.7 The Commission conducted fiveyear index reviews in 2000,8 2005,9 2010,10 and 2015.11 In the 2015 review, the Commission established the index level of PPI–FG+1.23%, to be effective for the five-year period beginning July 1, 2016.12 The index level established herein results from the Commission’s fifth five-year review of the index level. B. The Kahn Methodology 5. In Order No. 561 and each successive five-year review, the Commission has calculated the index level based upon a methodology developed by Dr. Alfred E. Kahn.13 The Kahn Methodology uses pipeline data from Form No. 6, page 700 from the prior five-year period to determine an appropriate adjustment to be applied to PPI–FG. The calculation is as follows. Each pipeline’s cost change on a perbarrel mile basis over the prior five-year period (e.g., the years 2014–2019 in this proceeding) is calculated. In order to remove statistical outliers and spurious data, under the Kahn Methodology, the resulting data set is trimmed to those oil pipelines in the middle 50% of cost changes (middle 50%). The Kahn Methodology then calculates three measures of the middle 50%’s central tendency: The median, the mean, and a weighted mean.14 The Kahn Methodology calculates a composite by averaging these measures of central tendency and measures the difference between the composite and the PPI–FG over the prior five-year period. The Commission then sets the index level at PPI–FG plus (or minus) this differential. C. The 2020 Five-Year Review 6. On June 18, 2020, the Commission issued the NOI initiating its five-year 7 Order No. 561, FERC Stats. & Regs. ¶ 30,985 at 30,941. 8 Five-Year Review of Oil Pipeline Pricing Index, 93 FERC ¶ 61,266 (2000), aff’d in part and remanded in part sub nom. Ass’n of Oil Pipe Lines v. FERC, 281 F.3d 239 (D.C. Cir. 2002) (AOPL II), order on remand, 102 FERC ¶ 61,195 (2003), aff’d sub nom. Flying J Inc. v. FERC, 363 F.3d 495 (D.C. Cir. 2004). 9 Five-Year Review of Oil Pipeline Pricing Index, 114 FERC ¶ 61,293 (2006) (2005 Index Review). 10 Five-Year Review of Oil Pipeline Pricing Index, 133 FERC ¶ 61,228 (2010) (2010 Index Review), reh’g denied, 135 FERC ¶ 61,172 (2011). 11 Five-Year Review of the Oil Pipeline Index, 153 FERC ¶ 61,312 (2015) (2015 Index Review), aff’d sub nom. Ass’n of Oil Pipe Lines v. FERC, 876 F.3d 336 (D.C. Cir. 2017) (AOPL III). 12 2015 Index Review, 153 FERC ¶ 61,312 at P 9. 13 The United States Court of Appeals for the District of Columbia Circuit has affirmed the Commission’s use of the Kahn Methodology. AOPL I, 83 F.3d at 1433–37; Flying J Inc. v. FERC, 363 F.3d at 497–500. 14 The weighted mean assigns a different weight to each pipeline’s cost change based upon the pipeline’s total barrel-miles. E:\FR\FM\16FER1.SGM 16FER1 Federal Register / Vol. 86, No. 29 / Tuesday, February 16, 2021 / Rules and Regulations review to establish the index level for the July 1, 2021 to June 30, 2026 period. The NOI proposed an index level of PPI–FG+0.09% and requested comment on this proposal and any alternative methodologies for calculating the index level.15 The Commission explained that commenters could address issues including, but not limited to, different data trimming methodologies and whether, and if so how, the Commission should reflect the effects of cost-ofservice policy changes in the index calculation.16 II. Comments 7. Initial comments filed in response to the NOI were due on August 17, 2020, and reply comments were due on September 11, 2020. Comments were filed by the Association of Oil Pipe Lines (AOPL) (together with Designated Carriers, Pipelines), Designated Carriers, Kinder Morgan, Inc., Colonial Pipeline Company, Joint Commenters,17 the Liquids Shippers Group (Liquids Shippers),18 the Canadian Association of Petroleum Producers (CAPP) (together with Joint Commenters and Liquids Shippers, Shippers), the Energy Infrastructure Council (EIC), the Pipeline Safety Trust, and the Pipeline and Hazardous Materials Safety Administration (PHMSA). 8. The commenters discuss numerous issues related to the proposed index level, including statistical data trimming and whether the index should incorporate the effects of the Commission’s 2018 policy change requiring MLP-owned pipelines to eliminate the income tax allowance and previously accrued Accumulated Deferred Income Taxes (ADIT) balances from their page 700 summary costs of service (Income Tax Policy Change).19 In addition, Liquids Shippers propose to replace the weighted mean in the Kahn Methodology’s calculation of central tendency with the weighted median and to replace the returns on equity (ROE) reported on page 700 for 2014 and 2019 with standardized, industry-wide ROEs 15 NOI, 171 FERC ¶ 61,239 at PP 7–8. P 8. 17 Joint Commenters include: The Airlines for America; Chevron Products Company; the National Propane Gas Association; and Valero Marketing and Supply Company. 18 For purposes of this proceeding, Liquids Shippers include: Apache Corporation; Cenovus Energy Marketing Services Ltd.; ConocoPhillips Company; Devon Gas Services, L.P.; Equinor Marketing & Trading US Inc.; Fieldwood Energy LLC; Marathon Oil Company; Murphy Exploration and Production Company—USA; Ovintiv Marketing Inc.; and Pioneer Natural Resources USA, Inc. 19 Inquiry Regarding the Commission’s Policy for Recovery of Income Tax Costs, 162 FERC ¶ 61,227, at P 8 (2018 Income Tax Policy Statement), reh’g denied, 164 FERC ¶ 61,030, at P 13 (2018). khammond on DSKJM1Z7X2PROD with RULES 16 Id. VerDate Sep<11>2014 15:57 Feb 12, 2021 Jkt 253001 for both years. The commenters propose varying index levels, including AOPL’s proposal to adopt an index level of at least PPI–FG+0.79%, Designated Carriers’ proposals of PPI–FG+1.27% (using the middle 80% of cost changes) or PPI–FG+0.82% (using the middle 50%), Joint Commenters’ proposal of PPI–FG–0.19%, and Liquids Shippers’ proposal of PPI–FG–1.58%. III. Discussion 9. We adopt an index level of PPI– FG+0.78% for the five-year period beginning July 1, 2021. We adopt Designated Carriers’ proposed adjustment to remove the effects of the Income Tax Policy Change from the page 700 data used to derive the index and we adopt Pipelines’ proposal to calculate the index level using the middle 80% of cost changes. We also reject Liquids Shippers’ proposals to: (a) Calculate the composite measure of the data set’s central tendency using the median of the barrel-mile weighted unit cost change; and (b) replace the reported page 700 ROEs for 2014 and 2019 with standardized ROEs. We also address arguments regarding negotiated rate contracts as raised by CAPP, pipeline costs resulting from integrity management regulations, and the treatment of mergers and acquisitions in the data set. A. 2018 MLP Income Tax Policy Change 1. Comments 10. Commenters disagree about whether the Commission should incorporate the effects of the Income Tax Policy Change in the index calculation.20 Pipelines argue that the Income Tax Policy Change should not be incorporated and present proposals for adjusting the page 700 data to remove its effects from the calculation. Shippers oppose Pipelines’ adjustments and contend that the policy change’s effects are appropriately reflected in the index. 11. AOPL argues that its proposed adjustment to eliminate the effects of the Income Tax Policy Change is necessary to calculate an index that accurately measures cost changes incurred during the 2014–2019 period and predicts the likely rate of future cost 20 Commenters either agree or do not dispute that the effects of the Tax Cuts and Jobs Act of 2017 (TCJA) are appropriately reflected in the data set; and no adjustment is necessary to reflect the Commission’s May 21, 2020 policy statement revising its ROE policy for natural gas and oil pipelines because that policy change occurred after the conclusion of the 2014–2019 period. Inquiry Regarding the Commission’s Policy for Determining Return on Equity, 171 FERC ¶ 61,155 (2020) (ROE Policy Statement). PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 9449 changes. According to AOPL, eliminating the income tax allowance from page 700 did not affect costs because MLP pipelines’ income tax costs were the same before and after the policy change. Thus, AOPL asserts that the Commission should remove the policy change’s effects to ensure that the page 700 data reflects consistent policies. 12. To remove the policy change’s effects from the data set, AOPL’s witness Dr. Shehadeh proposes to adjust the reported page 700 data for pipelines that were MLPs throughout the 2014– 2019 period based upon the following steps. First, Dr. Shehadeh eliminates the 2014 income tax allowance for all pipelines that reduced their page 700 income tax allowance for 2016 from a positive number to zero following the Income Tax Policy Change.21 Second, Dr. Shehadeh adjusts these pipelines’ 2014 page 700 return on rate base to reflect the elimination of their previously accumulated ADIT balances.22 This adjustment involves, for each pipeline: (a) Taking the difference between the 2016 rate base reported in the pipeline’s April 18, 2017 page 700 filing (with ADIT balances included) and the higher 2016 rate base reported in its April 18, 2018 filing (with ADIT balances removed); (b) adding this amount to the 2014 rate base; and (c) calculating the return on the higher 2014 rate base by multiplying the higher rate base by the 2014 weighted average cost of capital.23 13. Designated Carriers support AOPL’s position and propose to extend AOPL’s proposed adjustments to all pipelines that were owned by MLPs in 2014 and later converted to CCorporations, not just those pipelines that were MLPs throughout the 2014– 2019 data period. Designated Carriers contend that this approach is necessary to avoid treating one class of MLPs (those that were MLPs in 2014 and remained MLPs in 2019) differently from another class (those that were MLPs in 2014 and converted to C21 2016 is the only year for which pipelines filed page 700 data reflecting both the 2018 Income Tax Policy Change and the Commission’s prior income tax allowance policy. Oil pipelines filed page 700 data for 2016 on two occasions: As current-year data in the Form No. 6 filings due for submission on April 18, 2017, before the Income Tax Policy Change; and as prior-year data in Form No. 6 filings due for submission on April 18, 2018, after the Income Tax Policy Change. See 2018 Income Tax Policy Statement, 162 FERC ¶ 61,227 at P 46 & n.83 (directing MLP pipelines to eliminate the income tax allowance in the 2016 and 2017 data reported in their April 18, 2018 Form No. 6, page 700 filings). 22 AOPL Initial Comments at 28–29 (citing Shehadeh Initial Decl. at 14–15). 23 Id.; Shehadeh Initial Decl. at 16. E:\FR\FM\16FER1.SGM 16FER1 9450 Federal Register / Vol. 86, No. 29 / Tuesday, February 16, 2021 / Rules and Regulations Corporations during the review period).24 14. Shippers oppose Pipelines’ proposed adjustments and argue that the Commission should incorporate the effects of the Income Tax Policy Change in the index calculation. Shippers contend that the index is meant to reflect changes to recoverable pipeline costs as determined under the Commission’s Opinion No. 154–B costof-service methodology.25 Because the Income Tax Policy Change prohibits MLP pipelines from recovering an income tax allowance under that methodology, Shippers assert that the index should reflect this reduction in recoverable costs.26 15. Furthermore, Shippers claim that adopting Pipelines’ proposals would contravene the Commission’s commitment in the 2018 Income Tax Policy Statement to ‘‘incorporate the effects of [the policy change] on industry-wide oil pipeline costs’’ and ‘‘ensure that the industry-wide reduced costs are incorporated on an industrywide basis as part of’’ the 2020 five-year review.27 Shippers argue that the Commission opted to incorporate these effects in the index in lieu of directing pipelines to submit rate filings or initiating rate investigations to eliminate the income tax double recovery from MLP oil pipeline rates, as the Commission did for MLP natural gas pipelines. Thus, Shippers contend that the Commission must reflect the elimination of the income tax allowance and associated ADIT balances from MLP oil pipelines’ page 700 costs of service in order to bring those pipelines’ rates in line with their recoverable costs.28 khammond on DSKJM1Z7X2PROD with RULES 2. Commission Determination 16. Whether the index should reflect the effects of cost-of-service policy changes is an issue of first impression.29 24 Designated Carriers Initial Comments at 21 (citing Webb Initial Affidavit at P 24). 25 Joint Commenters Reply Comments at 13–14 (quoting 2015 Index Review, 153 FERC ¶ 61,312 at P 13) (citing AOPL III, 876 F.3d at 345–46); Liquids Shippers Reply Comments at 6 (quoting AOPL III, 876 F.3d at 345; 2015 Index Review, 153 FERC ¶ 61,312 at P 13). 26 Joint Commenters Initial Comments at 12–15; Joint Commenters Reply Comments at 13–15; Liquids Shippers Initial Comments at 33–42; Liquids Shippers Reply Comments at 6–7. 27 Joint Commenters Reply Comments at 16–17 (quoting 2018 Income Tax Policy Statement, 162 FERC ¶ 61,227 at P 46); Liquids Shippers Initial Comments at 34–35 (same). 28 Liquids Shippers Initial Comments at 34–35, 40; see also Joint Commenters Reply Comments at 16–17 (citing 2018 Income Tax Policy Statement, 162 FERC ¶ 61,227 at P 46). 29 This issue did not arise prior to the 2015 Index Review because the Commission measured industry-wide cost changes in the Order No. 561 Rulemaking and the 2000, 2005, and 2010 index VerDate Sep<11>2014 15:57 Feb 12, 2021 Jkt 253001 For the reasons discussed below, we adopt Designated Carriers’ proposal to adjust the page 700 data set to remove the effects of the Income Tax Policy Change from the index calculation. As a result, for all pipelines that were MLPs in 2014, we reduce the 2014 income tax allowance to zero and revise the 2014 return on rate base to reflect the removal of ADIT. We find that this adjustment is necessary to accurately calculate the index. 17. First, the purpose of indexing is to allow the indexed rate to keep pace with industry-wide cost changes,30 not to reflect alterations to the Commission’s Opinion No. 154–B cost-of-service methodology.31 Although the Commission uses the Opinion No. 154– B methodology cost data on page 700 for purposes of the five-year review, changes to the Opinion No. 154–B methodology itself are distinct from the annual changes to the pipeline costs that are input into the Opinion No. 154– B methodology. Where the Commission modifies an Opinion No. 154–B cost-ofservice policy used to measure recoverable costs midway through the five-year review period, the Opinion No. 154–B cost of service reported on page 700 for the first and last years of the period will reflect different sets of policies. Just as a business must account for changes to its accounting policies when comparing its costs over two different periods, we must make a similar adjustment to the reported page 700 data here to derive an ‘‘apples-toapples’’ comparison of pipeline cost changes. By contrast, comparing data reported under different sets of policies reviews using Form No. 6 accounting data, rather than the summary cost-of-service data reported on page 700. Because the Commission did not adopt any significant cost-of-service policy changes during the 2009–2014 review period, the Commission likewise did not have occasion to address this issue in the 2015 Index Review. 30 Order No. 561, FERC Stats. & Regs. ¶ 30,985 at 30,948, 30,950. Capital costs such as income taxes are among the industry-wide costs that the index is designed to measure. E.g., 2015 Index Review, 153 FERC ¶ 61,312 at P 17. 31 In 2015, the Commission adopted page 700 because it included actual total cost-of-service data reflecting the costs recoverable under the Opinion No. 154–B methodology. 2015 Index Review, 153 FERC ¶ 61,312 at P 13. We reaffirm that using page 700 data remains a superior means of measuring those recoverable costs as compared to the prior methodology from which the Commission departed in the 2015 Index Review. Id. PP 12–16. For example, the Opinion No. 154–B methodology reflected on page 700 more appropriately addresses capital costs. Id. PP 14–15 & nn.29–30. However, the purpose of the index is to address changes to those recoverable costs, not changes to what the Commission deems recoverable, such as the complete elimination of a particular cost category such as the MLP income tax allowance. PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 will produce a less accurate measure of normal industry-wide cost changes. 18. Second, although we recognize that in the 2018 Income Tax Policy Statement the Commission stated that it would ‘‘incorporate the effects of the post-United Airlines’ policy changes on industry-wide oil pipeline costs in the 2020 five-year review of the oil pipeline index level,’’ 32 we conclude that the index is not an appropriate mechanism for incorporating the post-United Airlines’ policy changes. The index allows for incremental rate adjustments to enable pipelines to recover normal cost changes in future years. It is not a true-up designed to remedy prior overor under-recoveries in pre-existing rates resulting from cost-of-service policy changes during the prior five-year period. Accordingly, we find that it would be improper to address any double recovery via the index. 19. Third, it is not clear that the double recovery of MLP pipelines’ income tax costs was ever incorporated into the index. Before the Commission updated its calculation of the index in the 2015 Index Review to use page 700 data, the Kahn Methodology used net carrier property as a proxy for capital costs and income taxes.33 This proxy did not reflect changes in the Commission’s Opinion No. 154–B methodology, including changes to the Commission’s income tax policy.34 As a result, the Commission’s prior policies permitting MLP pipelines to recover a partial 35 or full 36 income tax allowance were never directly incorporated into 32 2018 Income Tax Policy Statement, 162 FERC ¶ 61,227 at P 46. 33 2015 Index Review, 153 FERC ¶ 61,312 at P 14 (citing Order No. 561–A, FERC Stats & Regs. ¶ 31,000 at 31,096, 31,098). 34 Net carrier property measures changes to the book value of the pipeline’s asset base but does not incorporate changes to the costs of financing the asset base, such as ROE. As the Commission explained in the 2015 Index Review, the relationship between net carrier property and income tax costs is attenuated because income taxes are dependent upon the pipeline’s ROE, not merely the size of the pipeline’s asset base. 2015 Index Review, 153 FERC ¶ 61,312 at P 14. 35 Under the Commission’s Lakehead policy from 1995 to 2005, partnership entities like MLP pipelines could recover an income tax allowance for income attributable to corporate partners, but not for income attributable to individuals or other non-corporate partners. See Lakehead Pipe Line Co., L.P., Opinion No. 397, 71 FERC ¶ 61,338 (1995), reh’g denied, Opinion No. 397–A, 75 FERC ¶ 61,181, at 61,594–99 (1996). 36 In 2005, the Commission departed from the Lakehead policy and issued a policy statement announcing that it would permit partnership entities to recover an income tax allowance for income attributable to all partners regardless of the partner’s corporate form, to the extent that the partner had an actual or potential income tax liability on that income. Inquiry Regarding Income Tax Allowances, 111 FERC ¶ 61,139, at P 32 (2005). E:\FR\FM\16FER1.SGM 16FER1 Federal Register / Vol. 86, No. 29 / Tuesday, February 16, 2021 / Rules and Regulations 1. Comments 21. AOPL argues that the Commission should calculate the index level by trimming the data set to the middle 80%.40 AOPL asserts that absent errors in the data, it is preferable to use more data points because this makes the measurement of industry-wide cost changes more precise.41 AOPL contends that using the middle 50% in this proceeding would go beyond excluding statistical outliers by removing valuable data from the analysis, resulting in a less accurate measurement of industry cost changes.42 22. In addition, AOPL maintains that considerations the Commission has previously found to support trimming the data set to the middle 50% should not control here. It states that whereas the Commission found in Order No. 561 that data reporting errors supported restricting the analysis to the middle 50%, subsequent improvements in reporting accuracy obviated these concerns.43 Furthermore, AOPL states that contrary to the Commission’s finding in the 2015 Index Review, the fact that pipelines in the middle 80% are further removed from the median does not support excluding their cost data unless that data is anomalous or spurious.44 Designated Carriers, Kinder Morgan, and EIC support AOPL’s proposal to rely solely upon the middle 80%.45 23. Shippers oppose use of the middle 80% and argue that the record does not provide a sufficient basis for departing from the Commission’s practice in the 2015 and 2010 Index Reviews of relying solely upon the middle 50%.46 Shippers cite the Commission’s findings in the 2015 and 2010 Index Reviews that using the middle 50% provides a simple and effective method of excluding outlying data from the sample and minimizes the need to analyze individual pipeline data. Here, Shippers argue that the middle 80% contains outlying data and that AOPL did not undertake a company-by-company review of the incremental data included in the middle 80% to prove otherwise.47 Joint Commenters also contend that the 37 MLP pipelines therefore would not have benefitted from these policies unless they established an initial cost-based rate under 18 CFR 342.2(a) of the Commission’s regulations or changed an existing rate pursuant to the cost-of-service methodology under 18 CFR 342.4(a) while these policies were in effect. 18 CFR 342.2(a), 342.4(a). 38 See 2018 Income Tax Policy Statement, 162 FERC ¶ 61,227 at PP 45–46. 39 As the Commission has explained, investors in MLP pipelines and C-Corporation pipelines incur an investor-level income tax cost that is reflected in the pipeline’s rate of return. SFPP, L.P., Opinion No. 511–C, 162 FERC ¶ 61,228, at PP 22–24 (2018), order on reh’g and compliance, Opinion No. 511– D, 166 FERC ¶ 61,142, at PP 10–11 (2019), aff’d, SFPP, L.P. v. FERC, 967 F.3d 788, 795–97 (D.C. Cir. 2020). However, unlike MLPs, corporations incur an additional corporate income tax liability prior to the distributions to investors. See Opinion No. 511– C, 162 FERC ¶ 61,228 at PP 22 n.44, 25 n.53. 40 AOPL Initial Comments at 17–24; AOPL Reply Comments at 7–9. 41 AOPL Initial Comments at 18 (quoting Shehadeh Initial Decl. at 23); AOPL Reply Comments at 9. 42 AOPL Initial Comments at 19. Trimming the data set to the middle 50% would exclude 80 of the 160 pipelines in the data set, whereas trimming to the middle 80% would exclude 32 pipelines. 43 AOPL Initial Comments at 21–22 (citing AOPL I, 83 F.3d at 1433). 44 Id. at 23 (citing AOPL II, 281 F.3d at 245–46). 45 Designated Carriers Initial Comments at 7; Kinder Morgan Initial Comments at 3; EIC Comments at 7–8, 17. 46 Joint Commenters Initial Comments at 15–16; Joint Commenters Reply Comments at 5–7; Liquids Shippers Reply Comments at 17; CAPP Reply Comments at 15–16. 47 Joint Commenters Reply Comments at 10 (citing Brattle Group Report at 13–20); Brattle Group Report at 22; Liquids Shippers Reply Comments at 19–21 (citing Crowe Reply Aff. at 4– 5). the index.37 Because no prior index calculation incorporated the policies allowing MLP pipelines to recover an index tax allowance, it is not necessary to reflect the policy change denying those pipelines an income tax allowance in the calculation here. 20. Accordingly, we adopt Designated Carriers’ proposal to adjust the historical page 700 data for 2014 to remove the effects of the Income Tax Policy Change for all pipelines that were MLPs in 2014, including those that later converted to a business form (such as a C-Corporation) eligible to recover an income tax allowance. This approach is broader than AOPL’s more limited proposal to adjust the data for only those pipelines that were MLPs in 2014 and that continued to be MLPs for the remainder of the 2014–2019 period. Because the Commission’s revised income tax allowance policy applies equally to all MLP pipelines,38 we conclude that it is appropriate to make these adjustments for all pipelines that were MLPs in 2014, regardless of subsequent changes in corporate form. By applying these adjustments to all pipelines subject to the Income Tax Policy Change, we will ensure that the entirety of the page 700 data reflects the same MLP income tax allowance policy for both 2014 and 2019. Furthermore, those pipelines that converted from the MLP form to the corporate form incurred increased tax costs as a result of the change in business form. This cost change, just like any other cost change, should be reflected in the index.39 khammond on DSKJM1Z7X2PROD with RULES B. Statistical Data Trimming VerDate Sep<11>2014 15:57 Feb 12, 2021 Jkt 253001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 9451 middle 80% is more dispersed than the middle 50% in this proceeding and the middle 80% in prior index reviews, indicating that it contains cost changes that are not representative of typical experience.48 Moreover, Shippers assert that it is unnecessary to use the middle 80% in this proceeding to obtain a representative sample of industry cost changes because the middle 50% contains a greater percentage of barrelmiles subject to the index (82%) than in the 2015 Index Review (56%) or the 2010 Index Review (76%).49 24. Shippers further argue that AOPL’s arguments for using the middle 80% are unavailing and inconsistent with the Commission’s findings in the 2015 Index Review.50 Joint Commenters maintain that the Commission has previously rejected the argument that using the middle 50% will bias the index calculation downwards.51 Liquids Shippers state that AOPL incorrectly argues that the sole purpose of statistical data trimming is to remove inaccurate data and statistical outliers. According to Liquids Shippers, data trimming also serves to exclude data that, while accurate, fails to represent normal industry cost experience.52 2. Commission Determination 25. Based upon our review of the instant record, we calculate the index level by trimming the data set to the middle 80%. We recognize that this is a departure from the Commission’s practice in the 2015 and 2010 Index Reviews of trimming the data set to the middle 50%.53 An agency may change its position in light of experience or further analysis so long as it articulates a satisfactory explanation for its new position.54 Thus, notwithstanding the 48 Joint Commenters Reply Comments, Brattle Group Report at 17–20. 49 Joint Commenters Reply Comments at 7–8; Liquids Shippers Reply Comments at 26. 50 Joint Commenters Reply Comments at 9–11 (quoting 2015 Index Review, 153 FERC ¶ 61,312 at P 42 n.80) (citing 2015 Index Review, 153 FERC ¶ 61,312 at P 43); Liquids Shippers Reply Comments at 23–25 (citing 2015 Index Review, 153 FERC ¶ 61,312 at PP 40, 43). 51 Joint Commenters Reply Comments, Brattle Report at PP 46–48 (citing 2015 Index Review, 153 FERC ¶ 61,312 at P 43; Order No. 561–A, FERC Stats. & Regs. ¶ 31,000 at 31,098). 52 Liquids Shippers Reply Comments at 22–23 (citing Order No. 561–A, FERC Stats. & Regs. ¶ 31,000 at 31,097). 53 2015 Index Review, 153 FERC ¶ 61,312 at PP 42–44; 2010 Index Review, 133 FERC ¶ 61,228 at PP 60–63. 54 E.g., Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125–26 (2016) (‘‘Agencies are free to change their existing policies so long as they provide a reasoned explanation for the change. . . . But the agency must at least display awareness that it is changing position and show that there are good E:\FR\FM\16FER1.SGM Continued 16FER1 9452 Federal Register / Vol. 86, No. 29 / Tuesday, February 16, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES Commission’s determinations in the 2015 and 2010 Index Reviews, the Commission ‘‘retain[s] a substantial measure of freedom to refine, reformulate, and even reverse [its] precedents in the light of new insights’’ 55 if it describes good reasons for the new policy.56 In the NOI, the Commission requested comments that address whether the Commission should continue to trim the data set to the middle 50% or adopt an alternative approach to data trimming, including using the middle 80%.57 Based upon our review of the resulting record, we conclude that using the middle 80% is appropriate for this index review. 26. Three primary considerations support using the middle 80% instead of the middle 50% in this proceeding. First, we find it is appropriate to consider more data in measuring industry-wide cost changes rather than less. The Kahn Methodology derives the index level by computing the central tendency of a statistically trimmed data sample. As a general matter, considering a broader sample of data should enhance the Commission’s calculation of the central tendency of industry cost experience. In this proceeding, using the middle 50% would exclude 48 pipelines 58 from the Commission’s review of industry-wide cost changes over the 2014–2019 period. We are reluctant to discard this additional data. 27. Second, we find in this proceeding that ‘‘normal’’ cost changes are best defined by using the inclusive data sample embodied in the middle 80%. Prematurely discarding data prior to determining the central tendency could skew the index such that it does not actually reflect industry-wide trends. By using this inclusive data sample, the Commission is able to reasons for the new policy.’’) (internal quotation mark and citations omitted); New England Power Generators Ass’n, Inc. v. FERC, 879 F.3d 1192, 1201 (D.C. Cir. 2018) (‘‘So long as any change is reasonably explained, it is not arbitrary and capricious for an agency to change its mind in light of experience . . . or further analysis or other factors indicating that the agency’s earlier decision should be altered or abandoned.’’ (citing FCC v. Fox Television Studios, 556 U.S. 502, 514–16 (2009)); Defenders of Wildlife v. Zinke, 856 F.2d 1248, 1262 (9th Cir. 2017). 55 Davila-Bardales v. INS, 27 F.3d 1, 5 (1st Cir. 1994) (citing Rust v. Sullivan, 500 U.S. 173, 186– 87 (1991); Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983)). 56 FCC v. Fox Television Studios, Inc., 556 U.S. at 515; see also id. (explaining that an agency ‘‘need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better’’) (emphasis in original). 57 NOI, 171 FERC ¶ 61,239 at P 9 (citing 2005 Index Review, 114 FERC ¶ 61,293). 58 Shehadeh Initial Decl. at 26. VerDate Sep<11>2014 15:57 Feb 12, 2021 Jkt 253001 accurately identify the central tendency of industry-wide cost changes that reflects the ‘‘normal’’ cost changes recoverable by the index.59 Moreover, even if the middle 80% (or, for that matter, the middle 50%) includes relatively high cost changes at its upper bound, the index average will be significantly below that upper bound and will not allow pipelines to recover such extraordinary costs.60 Rather, the index will reflect the central tendency of the industry-wide data, which, by definition, represents normal industrywide costs. Absent a compelling showing that including data from the middle 80% distorts our measurement of the industry-wide central tendency, we are inclined to consider this more comprehensive data set. 28. Third, along similar lines, we emphasize that mere generalized concerns about outlying or unrepresentative data do not justify excluding the experiences of pipelines in the incremental 30% (i.e., those pipelines that are included in the middle 80% but not the middle 50%) from our review of industry cost changes. Unlike in prior index reviews, the record in this proceeding does not contain sufficient evidence that pipelines in the incremental 30% experienced anomalous cost changes that would skew the index. In the 2015 and 2010 Index Reviews, commenters presented detailed analyses demonstrating that the incremental 30% contained anomalous cost changes resulting from factors not broadly shared across the industry that would materially distort the index calculation.61 The record here does not 59 The definition of idiosyncratic data can vary from review to review. In any given five-year review period, an historically high level of cost change (due to, e.g., new regulatory requirements) may be widely experienced by pipelines across the industry and, accordingly, will be reflected in the central tendency of the industry-wide data and thus identified as a ‘‘normal’’ cost change. On the other hand, if during a different five-year review period, only a small number of pipelines experience that same level of cost change, then the cost change will be idiosyncratic and will differ significantly from the central tendency of the industry-wide data. Generally, the best method of identifying normal and idiosyncratic costs is to consider an inclusive and broadly representative data set such as the middle 80% and to compare those costs to the central tendency of that data set. 60 Likewise, if the lower bound of the middle 80% includes pipelines with cost changes that are below industry norms, the index average will significantly exceed this lower bound. 61 For instance, commenters proposing various manual data trimming methodologies demonstrated that the middle 80% included pipelines whose cost changes resulted from idiosyncratic circumstances such as major rate base expansions or increases in net plant. See 2015 Index Review, 153 FERC ¶ 61,312 at PP 20–29; 2010 Index Review, 133 FERC ¶ 61,228 at PP 34–55. PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 contain a comparably detailed analysis of the incremental 30%. Although Joint Commenters identify 7 pipelines (out of 48) with anomalous cost changes in the incremental 30%, removing those pipelines from the sample would only marginally affect the central tendency of the middle 80%.62 Furthermore, the record contains no evidence that the cost experiences of the remaining 41 pipelines similarly diverged from industry norms.63 Finally, the mere presence of pipelines with anomalous cost experiences in a data sample is not sufficient reason to use an alternative sample. The Commission recognized in the 2015 and 2010 Index Reviews that the middle 50% likely includes pipelines with idiosyncratic cost experiences, such as rate base expansions.64 Accordingly, this record does not justify discarding the additional data in the incremental 30% via statistical data trimming to the middle 50%.65 29. Shippers’ arguments for a contrary result are unavailing. Notwithstanding that the middle 80% is more dispersed than in prior reviews, the record contains no evidence addressing 62 When these pipelines are removed from the data set, the mean of the middle 80% declines from 1.46% to 1.29%, while the median and weighted mean remain nearly unchanged. This reduces the composite central tendency of the middle 80% only marginally, from 0.78% to 0.72%. Compare Attachment A, Ex. 1, with id., Ex. 6. Furthermore, even this limited reduction may be exaggerated because it results in part from reducing the overall number of pipelines in the sample, which would tend to lower the mean of the sample. Additionally, because four of the seven removed pipelines are located below the median, it is unsurprising that excluding them from the middle 80% would reduce the mean. 63 In using the middle 80% in this proceeding, we observe that the index level established herein is nonetheless the lowest index since the 2000 Index Review. This mitigates concerns that using the middle 80% leads to an anomalous index level. 64 See 2015 Index Review, 153 FERC ¶ 61,312 at P 33 n.60 (noting that 26 of the 41 pipelines that commenters proposed to exclude for reporting ‘‘non-comparable’’ data were included in the middle 50%); 2010 Index Review, 133 FERC ¶ 61,228 at P 48 n.25 (noting that 7 of the 25 pipelines that a commenter proposed to exclude for experiencing rate base expansions were included in the middle 50%). Just as the presence of those pipelines did not preclude use of the middle 50% in earlier reviews, we find that the pipelines Joint Commenters identified do not preclude use of the middle 80% in this proceeding. 65 AOPL also argues that the Commission should use the middle 80% because it conforms more closely to a lognormal distribution than the middle 50%. AOPL Initial Comments at 20–21, 24 (citing Shehadeh Initial Decl. at 24); AOPL Reply Comments at 8–9. Shippers contend that this argument is mathematically flawed and unsound. Joint Commenters Reply Comments, Brattle Report at PP 50–54; Liquids Shippers Reply Comments at 24–25 (quoting Crowe Reply Aff. at 5). Given these objections, we do not rely upon this argument in reaching our decision to use the middle 80% here. See also 2015 Index Review, 153 FERC ¶ 61,312 at P 43 (rejecting this same argument). E:\FR\FM\16FER1.SGM 16FER1 khammond on DSKJM1Z7X2PROD with RULES Federal Register / Vol. 86, No. 29 / Tuesday, February 16, 2021 / Rules and Regulations whether the more dispersed cost changes in the incremental 30% resulted from pipeline-specific factors rather than from broadly shared circumstances representative of ordinary pipeline operations. Furthermore, Shippers’ own evidence demonstrates the dispersion is primarily just a few pipelines at the top of the middle 80%. Although it may be possible that analyses of the middle 80% in this proceeding similar to those provided in prior index reviews would have raised similar concerns about considering the middle 80%, no commenter presented such a comprehensive analysis. In the absence of a more detailed showing, we prefer to use a larger sample, representing a broader array of cost experience, in determining the data set’s central tendency. 30. We are likewise unpersuaded by Shippers’ reliance upon the Commission’s findings in the 2015 and 2010 Index Reviews that the middle 80% includes pipelines further removed from the median and that using the middle 50% provides a more effective method of excluding outlying data. As discussed above, we have reconsidered our prior findings and now conclude that based upon the record in this proceeding, the benefits of considering the additional data in the middle 80% outweigh concerns about introducing anomalous data that could bias the index calculation. 31. We also find unpersuasive Shippers’ argument that it is unnecessary to use the middle 80% to obtain a representative sample of industry cost data. We acknowledge that the middle 50% represents a greater percentage of barrel-miles subject to the index than in 2015 or 2010. However, we find that on this record, it is preferable to consider additional data that more fully reflects the diversity of industry cost experience than the middle 50%. 32. Similarly, we disagree with Shippers’ assertion that using the middle 80% here would result in an index that encompasses extraordinary cost changes.66 As discussed above, the Kahn Methodology determines the index level using the central tendency of the trimmed data sample, and does not set the index at the sample’s upper or lower bounds. Thus, using the middle 80% will not allow pipelines at 66 See Order No. 561–A, FERC Stats. & Regs. ¶ 31,000 at 31,097 (rejecting request to adopt index ‘‘sufficiently high and generous to encompass even the most extraordinary costs’’ because such an index ‘‘would provide windfalls to many oil pipelines by allowing rate changes substantially above cost changes’’). VerDate Sep<11>2014 15:57 Feb 12, 2021 Jkt 253001 the top or bottom of the sample to recover their particular cost changes, which by definition would diverge from the experience of pipelines closer to the central tendency. Instead, this approach only ensures that those pipelines’ cost experiences are reflected in calculating the data set’s central tendency. As discussed above, we find that considering a wide spectrum of industry experience will aid the Commission in calculating a central tendency that better represents normal industry-wide cost changes. C. Liquids Shippers’ Proposal To Calculate the Composite Measure of Central Tendency Using the Weighted Median 1. Comments 33. As discussed above, the Kahn Methodology calculates the median, mean, and weighted mean of the data set and averages the results to calculate a composite measure of central tendency. Liquids Shippers argue that the weighted mean of the data set in this proceeding accords undue weight to two pipelines, Colonial and Enbridge Energy, L.P. Liquids Shippers allege that these pipelines are substantial outliers in terms of barrel-miles and cost changes 67 and that both reported inaccurate page 700 data for 2014 and 2019.68 Because the weighted mean accords significant weight to these pipelines, Liquids Shippers state that using it to calculate the composite measure of central tendency will skew the index level upwards and fail to track normal industry-wide cost changes.69 34. To remedy this issue, Liquids Shippers propose to replace the weighted mean in the index calculation with the median of the barrel-mile weighted cost changes in the middle 50% (weighted median),70 as calculated by their witness Elizabeth H. Crowe. 67 Liquids Shippers Initial Comments at 13–15. For instance, Liquids Shippers state that Colonial and Enbridge comprise 40% of the total barrel-miles for all of the 160 pipelines in the data set. Id. In addition, Liquids Shippers claim that Colonial reported a higher unit cost change over the 2014– 2019 period than 69 of the 80 pipelines included in the middle 50% and Enbridge reported a higher cost change than 47 of those pipelines. Id. at 15. 68 Specifically, Liquids Shippers claim that Colonial reported an inaccurate capital structure in both 2014 and 2019 and that Enbridge’s reported ROEs are inconsistent with Commission policy. Id. at 17–19. 69 Id. at 16–19. 70 The standard median identifies the cost change for which the same number of pipelines have a smaller cost change and a larger cost change. By contrast, the weighted median identifies the cost change for which the same share of barrel-miles (rather than the number of pipelines) is accounted for by the pipelines below and above the selected median. PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 9453 Liquids Shippers contend that the Commission has recognized that the median is the preferred statistical measure of central tendency where the data distribution is highly skewed.71 Thus, Liquids Shippers argue that using the weighted median is a statistically appropriate method of ameliorating the undue influence that Colonial and Enbridge exert upon the index calculation.72 Alternatively, if the Commission decides not to replace the weighted mean with the weighted median, Liquids Shippers propose reducing the weighting afforded to the weighted mean in the Kahn Methodology from 33.3% to 20% or 10%.73 35. Pipelines oppose this proposal and argue that Liquids Shippers have not justified modifying the Kahn Methodology to exclude the weighted mean. Pipelines disagree with Liquids Shippers’ claim that the weighted mean affords excessive weight to Colonial or Enbridge. Rather, Pipelines assert that averaging the weighted mean with the median and unweighted mean ensures that larger pipelines receive appropriate weighting in the index calculation, consistent with indexing’s aim to measure cost changes on an industrywide basis. Pipelines also assert that neither Colonial nor Enbridge is an outlier because both pipelines are included in the middle 50% of the data set. In addition, Pipelines maintain that Liquids Shippers’ allegations regarding Colonial’s and Enbridge’s page 700 inputs are both irrelevant and outside the scope of the five-year review. Finally, Pipelines contend that Liquids Shippers’ calculation of the weighted median is methodologically flawed and would distort the index by affording undue weight to smaller pipelines in the data set.74 Colonial filed separate reply comments echoing these arguments and urging the Commission to disregard Liquids Shippers’ claims regarding its page 700.75 2. Commission Determination 36. We decline to adopt Liquids Shippers’ proposal to replace the weighted mean with the weighted median. First, removing the weighted mean from the index calculation would contravene longstanding Commission practice and Dr. Kahn’s testimony in the rulemaking proceeding that established 71 Liquids Shippers Initial Comments at 19–20 (quoting Order No. 561–A, FERC Stats. & Regs. ¶ 31,000 at 31,097). 72 Id. at 20. 73 Id. at 20 n.45; Crowe Initial Affidavit at 8–9. 74 AOPL Reply Comments at 22–27; Designated Carriers Reply Comments at 6–13. 75 Colonial Reply Comments at 3–11. E:\FR\FM\16FER1.SGM 16FER1 Federal Register / Vol. 86, No. 29 / Tuesday, February 16, 2021 / Rules and Regulations the indexing regime. In proposing to average the weighted mean with the median and unweighted mean to derive the composite central tendency, Dr. Kahn explained that each of these measures ‘‘captured a significant aspect of the composite results from an industry perspective.’’ 76 The Commission credited Dr. Kahn’s testimony and adopted this approach to calculating the composite central tendency in that proceeding and in all subsequent five-year reviews. As discussed below, we find that Liquids Shippers’ arguments do not provide an adequate basis for departing from this consistent practice. 37. Second, we reject as unpersuasive Liquids Shippers’ claim that the Commission should replace the weighted mean merely because it provides greater weight to larger pipelines like Colonial and Enbridge.77 The index strives to track cost changes on an industry-wide basis among pipelines of all sizes. To this end, the Kahn Methodology strikes a balance between large and small pipelines by determining the central tendency of the cost data using two measures that do not take pipeline size into account (the median and the mean) together with the weighted mean, which weights each pipeline’s cost change by its transported volumes. Including the weighted mean in this analysis ensures that the costchange calculation takes sufficient account of pipeline size so that ‘‘minor pipelines do not skew’’ the result.78 Thus, the fact that the weighted mean may accord additional weight to larger pipelines in this data set is fully consistent with its role in the index calculation. Removing it from the analysis as Liquids Shippers propose would upset the balance between large and small pipelines that the Kahn Methodology achieves. For this reason, we likewise reject Liquids Shippers’ alternative proposal to reduce the weighting of the weighted mean in the calculation from 33.3% to 20% or 10%. 38. Third, Ms. Crowe’s calculation of the weighted median is methodologically flawed. AOPL’s witness Dr. Shehadeh testifies that the established statistically appropriate method for calculating the weighted median, as applied to pipeline cost changes, is to identify the cost change in the data set for which the same share of barrel-miles (rather than the same number of pipelines) is accounted for by the pipelines below and above the selected median.79 Shehadeh Reply Decl. at 11 n.17 (citing Thomas H. Cormen, Introduction to Algorithms 194 (2009); 6 F.Y. Edgeworth, On Observations Relating to Several Quantities 279–85 (1887) (The weighted median may be defined as follows: This value is appropriately derived by ordering the pipelines by cost-change percentage, computing each pipeline’s share of total barrel-miles, and measuring the cumulative share of total barrel-miles represented as each pipeline is included in the sample.80 The pipeline whose share of total barrelmiles causes the cumulative share to reach 50% represents the data set’s weighted median.81 39. Ms. Crowe, however, performed a different calculation by identifying the median weighted barrel-mile costchange percentage and dividing that figure by the average of those pipelines’ 2014 barrel-miles.82 This calculation departs from the proper method of calculating the weighted median discussed above. Rather than identify the pipeline that causes the cumulative share of total-barrel miles represented in the sample to reach 50%, Ms. Crowe derives the median value of the weighted cost-change percentages for 2019 without regard to the barrel-miles represented below and above that cost change.83 Unlike the Commission’s calculation of the standard median and Dr. Shehadeh’s calculation of the weighted median, Ms. Crowe does not order pipelines by cost changes, and instead orders them by cost changes times barrel-miles.84 Thus, the median of Ms. Crowe’s data sample does not capture the central tendency of industry-wide cost changes, as evidenced by the significant and multidirectional fluctuations above and 76 Testimony of Dr. Alfred E. Kahn, Docket No. RM93–11–000, at 9 (filed Aug. 12, 1993). 77 The Commission has previously recognized that large pipelines like Colonial can exert significant influence upon the weighted mean. 2015 Index Review, 153 FERC ¶ 61,312 at P 24 n.49 (explaining that ‘‘[b]ecause Colonial is a large pipeline, it heavily influences the weighted average in the Kahn Methodology’’). 78 AOPL II, 281 F.3d at 241. Although Order No. 561–A recognized that the median is often the preferred statistical measure of central tendency where the distribution is highly skewed, the Commission made this observation in affirming the use of statistical data trimming to derive a median sample of the overall data set rather than in the context of using the median to determine the data set’s central tendency. See Order No. 561–A, FERC Stats. & Regs. ¶ 31,000 at 31,096–97. In that proceeding and in each subsequent index review, the Commission has consistently calculated the composite measure of central tendency by averaging the median, mean, and weighted mean. VerDate Sep<11>2014 20:29 Feb 12, 2021 Jkt 253001 79 Shehadeh Reply Decl. at 11. example, consider a set of numbers 3, 4, 6, 10, where each number is weighted 1, 2, 3, and 5, respectively. In this scenario, the weighted median of the data set would equal 6, because including 6 in the set increases the cumulative weighting to 50%. (1+2+3)/(1+2+3+5) = 6/11 = 54.55%. By contrast, the standard median would be 5, which equals the average of the second and third numbers of the set. 81 Dr. Shehadeh correctly performs this calculation using Liquids Shippers’ data set and derives a weighted median cost change of 0.68%, as reported by Enbridge. Shehadeh Reply Decl., App. B, Ex. 1. 82 Shehadeh Reply Decl. at 13; see also Crowe Initial Aff., App. 6 at Cost Changes Tab. Although Ms. Crowe’s testimony on this issue was unclear, our understanding of her calculation is as follows. First, she identified the pipelines with percentage cost changes in the middle 50%. Second, she multiplied each pipeline’s percentage cost change by its barrel-miles. Third, she arranged the 80 For PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 pipelines based upon these results from smallest to largest. Fourth, she determined the median of this data sample. Because Ms. Crowe’s sample consists of an even number of pipelines, the median lies at the midpoint between two pipelines, Hilcorp Pipeline Company, LLC, and BOE Pipeline, LLC. Finally, she divided the median percentage cost change by those pipelines’ 2014 barrel-miles, which produces a final result of ¥0.57%. See Crowe Initial Aff., App. 3, at Cost Changes Tab; Shehadeh Reply Decl. at 10, Figure 1 and App. B, at Figure 1—Chart Backup Tab. 83 In essence, Ms. Crowe attempts to calculate the weighted median by using a modified version of the formula the Commission uses to compute the weighted mean. 84 See Crowe Initial Aff., App. 3 at Cost Changes Tab. Under this approach, it is unclear whether the median pipeline of a given sample reported (a) relatively high cost changes and low barrel-miles or (b) relatively low cost changes and high barrelmiles. E:\FR\FM\16FER1.SGM 16FER1 ER16FE21.153</GPH> khammond on DSKJM1Z7X2PROD with RULES 9454 Federal Register / Vol. 86, No. 29 / Tuesday, February 16, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES below the purported median that follow no discernible pattern.85 Accordingly, we conclude that Ms. Crowe’s calculation does not provide a useful measure of central tendency for purposes of calculating the index.86 40. Fourth, Liquids Shippers’ challenges to Colonial’s and Enbridge’s page 700 data are both misplaced and unavailing on the merits. Indexing proceedings are not an appropriate forum for challenging specific pipelines’ page 700 inputs 87 and the Commission has declined to scrutinize individual pipeline data in prior index reviews.88 In any event, the record does not support Liquids Shippers’ claim that Colonial and Enbridge reported outlying cost changes. Both pipelines are included in the middle 50% of all pipelines in the data set, which indicates that their cost experiences did not diverge significantly from industry norms. In fact, as Dr. Shehadeh demonstrates, Enbridge’s reported cost change represents the correctly calculated weighted median of the data sample,89 refuting Liquids Shippers’ 85 A small shift in the data sample’s median would produce significant and multidirectional changes in the calculation’s result. For instance, a median reflecting the pipeline with the next lowest weighted percentage change (Wildcat Liquids Caddo LLC) would reduce Ms. Crowe’s result from 0.57 to ¥1.74% (a decrease of over 200%), whereas a median reflecting the next highest change (reported by Wesco Pipeline, LLC) would reduce the result by an even greater amount, from ¥0.57% to ¥2.28% (a decrease of 400%). These haphazard results do not reflect a convergence towards a central tendency of industry-wide cost changes. 86 In addition to failing to reflect the central tendency of industry-wide cost changes, Ms. Crowe’s calculation also improperly reduces the weighting attributed to larger pipelines in the data set. Because Ms. Crowe orders the pipelines by barrel-mile cost change times barrel-miles, a pipeline with high barrel-miles would likely only lie near the median of the data sample if it reported extremely low cost changes. Thus, Ms. Crowe’s methodology would nullify the influence of larger pipelines upon the index calculation and thereby defeat the purpose of relying upon a weighted measure of central tendency. See AOPL II, 281 F.3d at 241 (explaining that the weighted mean serves to ensure that ‘‘minor firms do not skew the result’’). 87 See AOPL I, 83 F.3d at 1437 (holding that the Commission did not err in Order No. 561 by declining to periodically review individual pipeline costs and instead requiring shippers to challenge individual pipeline rates via protests or complaints); see also Calnev Pipe Line L.L.C., 127 FERC ¶ 61,304, at P 5 (2009) (‘‘[T]he Commission has made quite clear that it will not review allegations regarding the appropriateness of a pipeline’s cost of service or the accuracy of its accounting in an index proceeding. Such allegations must be included in a complaint once the index-based filing becomes effective.’’ (citing SFPP, L.P., 123 FERC ¶ 61,317 (2008); BP W. Coast Prods. LLC v. SFPP, L.P., 121 FERC ¶ 61,243 (2007)). 88 2015 Index Review, 153 FERC ¶ 61,312 at PP 22–30, 33–39 (declining to adopt manual data trimming proposals that would have required analyzing individual pipeline data); 2010 Index Review, 133 FERC ¶ 61,228 at PP 48–55 (same). 89 Shehadeh Reply Decl. at 14; see also supra n.81. VerDate Sep<11>2014 15:57 Feb 12, 2021 Jkt 253001 contention that it is an outlier in terms of cost changes. D. Liquids Shippers’ Proposal To Adopt Standardized ROEs for 2014 and 2019 1. Comments 41. Liquids Shippers state that the Commission should replace the ROEs that pipelines reported on page 700 for 2014 and 2019 with single, standardized figures for both years.90 Liquids Shippers contend that the data used to calculate the index level should conform to the Commission’s cost-ofservice methodology 91 and that the reported ROEs for 2014 and 2019 are inconsistent with this methodology in two respects. First, Liquids Shippers claim that pipelines’ reported ROEs are self-selected and do not reflect what investors would demand in the market.92 Second, Liquids Shippers state that if all oil pipeline rates were litigated at the same time, absent unusual circumstances, the Commission would adopt the same ROE for every pipeline because regulated pipelines typically fall within a broad range of average risk.93 Liquids Shippers assert that the reported ROEs conflict with this principle because they vary substantially.94 42. Liquids Shippers also claim that uncertainty surrounding the Commission’s oil pipeline ROE policy undermines the reliability of the reported ROEs for 2019. They state that the Commission initiated a review of its ROE policy in Docket No. PL19–4–000 on March 21, 2019 but did not clarify its ROE methodology for oil pipelines until it issued the ROE Policy Statement on May 21, 2020.95 Because oil pipelines were required to submit page 700 cost-of-service data for 2019 in April 2020, Liquids Shippers allege that pipelines were not certain of the 90 Liquids Shippers Initial Comments at 21–22. at 21, 25 (citing 2015 Index Review, 153 FERC ¶ 61,312 at PP 13, 15). 92 Id. at 21 (citing FPC v. Hope Nat. Gas Co., 320 U.S. 591, 603 (1944); Bluefield Water Works & Improvement Co. v. Pub. Serv. Comm’n of W. Va., 262 U.S. 679, 692–93 (1923); Farmers Union Cent. Exch., Inc. v. FERC, 734 F.2d 1486, 1502 (D.C. Cir. 1984)). 93 Id. at 22–23. Liquids Shippers assert that regulated pipelines typically face comparable risks and that the Commission typically sets oil pipeline ROEs at the median of the proxy group results. Id. 94 Id. at 23. For instance, Liquids Shippers state that among the 160 pipelines included in the untrimmed data set, reported page 700 ROEs for 2019 ranged from 0.9% to 22.3%. Id. at 24 (citing Crowe Initial Aff. at 9). 95 Id. at 25–26 (citing Inquiry Regarding the Commission’s Policy for Determining Return on Equity, 166 FERC ¶ 61,207 (2019)). As discussed above, the Commission issued a policy statement revising its ROE methodology for natural gas and oil pipelines on May 21, 2020. ROE Policy Statement, 171 FERC ¶ 61,155. 9455 Commission’s prevailing policy when they reported their 2019 ROEs. In support of this claim, Liquids Shippers observe that two pipelines submitted updated Form No. 6 filings in July 2020 indicating that the page 700 ROEs they filed in April 2020 did not comply with the Commission’s then-applicable policy relying solely upon the DCF model.96 43. In light of these concerns, Liquids Shippers urge the Commission to replace each pipeline’s reported page 700 ROE for 2014 and 2019 with standardized ROEs for purposes of calculating the index level. For 2014, Liquids Shippers propose a standardized ROE of 10.29%, which 54 pipelines reported in their 2014 page 700 filings.97 For 2019, Liquids Shippers propose to use the 10.02% ROE that Trial Staff has proposed in testimony in an ongoing oil pipeline rate proceeding based upon data for the six-month period ending in November 2019.98 44. Pipelines oppose Liquids Shippers’ proposal and disagree with their assertions. AOPL disputes Liquids Shippers’ claim that variation in the reported page 700 ROEs indicates that this data is unreliable or inconsistent with Commission policy.99 Pipelines contend, moreover, that the Commission found in the 2015 Index Review that statistical data trimming is sufficient to remove pipelines with outlying equity cost changes from the data set and that Liquids Shippers’ arguments do not undermine this conclusion.100 In addition, AOPL argues that Liquids Shippers failed to support their proposed standardized ROEs and that adopting their proposal would complicate the five-year review by introducing complex cost-of-service ratemaking issues.101 91 Id. PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 96 Id. at 27–28 (citing Crowe Initial Aff., App. 4 at 1–2) (referring to updated Form No. 6 filings of Plains Pipeline, LP and Rocky Mountain Pipeline System LLC). 97 Ms. Crowe states that 45 pipelines reported a 10.29% ROE on their page 700s for 2014. Crowe Initial Aff. at 11–12. However, as shown in Attachment A, Exhibit 7 to this order, the Commission’s review of Form No. 6 filings submitted in 2016 indicates that 54 pipelines reported this ROE for 2014 in the column on page 700 for prior-year data. 98 Liquids Shippers Initial Comments at 30–31; Crowe Initial Aff. at 12 (citing Trial Staff, Direct and Answering Cost-Based Rate Testimony of Commission Trial Staff Witness Robert J. Keyton, Docket Nos. OR18–7–002 et al. (filed Jan. 14, 2020)). 99 AOPL Reply Comments at 30. 100 Id. at 28 (quoting 2015 Index Review, 153 FERC ¶ 61,312 at P 17); Designated Carriers Reply Comments at 13–14 (same). 101 AOPL Reply Comments at 32. E:\FR\FM\16FER1.SGM 16FER1 9456 Federal Register / Vol. 86, No. 29 / Tuesday, February 16, 2021 / Rules and Regulations 2. Commission Determination 45. We decline to adopt Liquids Shippers’ proposal to replace the reported page 700 ROE data for 2014 and 2019 with standardized ROEs. We conclude that Liquids Shippers have not adequately demonstrated that the reported page 700 ROEs are unreliable or inconsistent with Commission policy. 46. Contrary to Liquids Shippers’ contention, the fact that page 700 ROEs are self-reported does not demonstrate that this data is unreliable or fails to capture the returns that investors would demand in the market. Rather, one of the primary reasons the Commission updated the index calculation to use page 700 data is that this data is based upon ‘‘established ratemaking techniques.’’ 102 During the 2014–2019 period, these techniques included determining ROE using the DCF model, which is designed to reflect investors’ required returns. The instructions on page 700 required pipelines to determine their ROE (as well as other page 700 inputs) consistent with this methodology and pipelines submitted page 700 under oath and subject to sanction if there were purposeful errors in their reported data.103 In addition, if a pipeline makes any major changes to its application of the Opinion No. 154– B methodology in preparing page 700, it must describe such changes in a footnote on page 700. Given these facts, we find that Liquids Shippers have not adequately demonstrated that the reported page 700 ROE data is unreliable merely because pipelines self-reported.104 102 2015 Index Review, 153 FERC ¶ 61,312 at P khammond on DSKJM1Z7X2PROD with RULES 15. 103 See BP W. Coast Prods. LLC v. SFPP, L.P., 121 FERC ¶ 61,243, at P 9 (observing that ‘‘pipelines submit their FERC Form No. 6 under oath and exposes the pipeline and its employees to civil and criminal sanctions if there are purposeful errors in’’ applying the Commission’s existing cost-of-service methodology to develop the underlying cost inputs). Furthermore, the Commission calculates the index level based upon changes in cost over the applicable review period, rather than total costs in a given year. Because the last year of any particular review period (e.g., 2014–2019) is the first year of the next review period (e.g., 2019–2024), any attempt by pipelines to distort the index calculation by reporting inflated cost data in the last year of one period would harm their interests by establishing a higher cost baseline in the first year of the next period. 104 If a shipper determines that a pipeline has reported inaccurate data on its page 700, the shipper may file a complaint alleging that the pipeline did not properly apply the Opinion No. 154–B methodology in developing its page 700 cost inputs. See BP W. Coast Prods. LLC v. SFPP, L.P., 121 FERC ¶ 61,243 at P 9 (explaining that shippers may file ‘‘a complaint that provides reasonable grounds to conclude that the pipeline did not properly apply its existing cost-of-service methodology to develop the underlying cost inputs used to develop the Page 700 in its annual FERC VerDate Sep<11>2014 15:57 Feb 12, 2021 Jkt 253001 47. Similarly, variation among page 700 ROEs does not indicate that the reported ROE data is unreliable. To the contrary, multiple factors can cause the DCF model to yield different results for different pipelines. For example, even when analyzing data from the same time period, the appropriate proxy group may vary from pipeline to pipeline depending upon differences in risk. Liquids Shippers themselves acknowledge 105 that although the Commission typically sets the real ROE for oil pipelines at the median of the proxy group results, it may set the ROE above or below the median where the record demonstrates that the pipeline faces anomalously high or low risks.106 Accordingly, the fact that pipelines reported different ROEs for the same years does not demonstrate that this data is inaccurate or inconsistent with Commission policy. Moreover, the Commission explained in the 2015 Index Review that to the extent a particular pipeline’s per barrel-mile equity cost changes departed substantially from industry norms, that pipeline would not be among the middle 50% used to calculate the index level.107 Similarly, such pipelines would not be among the middle 80% used to calculate the index level in this proceeding. Liquids Shippers provide no basis for altering this conclusion. 49. We conclude, moreover, that Liquids Shippers have not supported their proposed standardized ROEs. For 2014, Liquids Shippers seek to replace all pipelines’ reported ROEs with an ROE figure that only 29% of pipelines reported for that year.108 However, Liquids Shippers do not demonstrate that this figure accurately measures the investor-required cost of equity for all pipelines in the data set. Similarly, Liquids Shippers do not justify why the Commission should adopt, as the 2019 ROE for all pipelines in the data set, a figure that a participant has proposed in Form No. 6, or the inputs were improperly entered into its accounts or the calculation.’’). 105 See Liquids Shippers Initial Comments at 22– 23 (quoting El Paso Nat. Gas Co., Opinion No. 528, 145 FERC ¶ 61,040, at P 592 (2013)). 106 E.g., BP Pipelines (Alaska) Inc., Opinion No. 502, 123 FERC ¶ 61,287, at P 195 (2008) (citing Transcon. Gas Pipe Line Corp., Opinion No. 414– A, 84 FERC ¶ 61,084, at 61,423–24 (1998)), order on reh’g and compliance, 125 FERC ¶ 61,215 (2008), reh’g denied, 127 FERC ¶ 61,317 (2009), aff’d sub nom. Flint Hills Res. Alaska, LLC v. FERC, 726 F.3d 881 (D.C. Cir. 2010). 107 2015 Index Review, 153 FERC ¶ 61,312 at P 17. 108 Whereas Liquids Shippers state that 45 of 158 pipelines filing page 700 for 2014 reported an ROE of 10.29%, the Commission’s review of Form No. 6 data indicates that 54 of 184 filing pipelines reported that particular ROE for 2014. Compare Liquids Shippers Initial Comments at 31 with Attachment A, Ex. 7. PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 an ongoing hearing on which neither the Presiding Judge nor the Commission have opined.109 Given that oil pipelines have diverse business models and different risk levels, we cannot simply assume that any single ROE could reflect the investor-required return for all pipelines in the data set. 50. Finally, we find that adopting Liquids Shippers’ proposal would undermine indexing’s purpose as a simplified and streamlined ratemaking regime. Whereas the Kahn Methodology promotes simplification by relying upon reported page 700 data, Liquids Shippers’ proposal would require the Commission, in this proceeding and in future five-year reviews, to undertake separate analyses to determine just and reasonable industry-wide ROEs for the first and last years of the five-year review period. Determining a just and reasonable ROE, particularly on an industry-wide basis, would be a complex and fact-intensive inquiry that could require considerable time and resources to resolve. The Commission explained in the NOI that addressing such complex cost-of-service issues would improperly complicate and prolong the five-year review process in violation of EPAct 1992’s mandate for simplified and streamlined ratemaking,110 and Liquids Shippers have not refuted these concerns. E. CAPP’s Argument Regarding Negotiated Rate Contracts 1. Comments 51. CAPP argues that the Commission should quantify the effects of negotiated rate contracts upon oil pipelines’ reported costs of equity. CAPP states that these contracts typically contain provisions such as shipper volume commitments that serve to transfer risk from the pipeline to its shippers and that failing to reflect pipelines’ reduced risks in the page 700 data could improperly inflate the index calculation.111 CAPP notes that the Commission found in the 2015 Index Review that the page 700 total cost-ofservice would reflect any reduction in the pipeline’s risk, but argues that the page 700 data in this proceeding does not indicate whether this occurred over the 2014–2019 period.112 To provide 109 According to the most recent procedural schedule adopted in Docket Nos. OR18–7–002 et al., the initial decision in that proceeding is currently scheduled for issuance on May 28, 2021. Epsilon Trading, LLC v. Colonial Pipeline Co., Docket No. OR18–7–002, at Attachment A (June 23, 2020). 110 NOI, 171 FERC ¶ 61,239 at P 11. 111 CAPP Initial Comments at 2–5. 112 Id. at 4 (quoting 2015 Index Review, 153 FERC ¶ 61,312 at P 28). E:\FR\FM\16FER1.SGM 16FER1 Federal Register / Vol. 86, No. 29 / Tuesday, February 16, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES increased transparency, CAPP urges the Commission to consider requiring pipelines to provide shippers with the workpapers underlying their page 700 calculations.113 AOPL contends CAPP’s claims are unsupported and that the Commission has previously rejected this precise argument.114 2. Commission Determination 52. We find CAPP’s arguments unpersuasive. First, as the Commission explained in the 2015 Index Review, ‘‘[t]o the extent that volume commitments in [negotiated rate] agreements have reduced the pipeline’s risk, the page 700 total cost of service would reflect this reduction in the embedded costs of equity and costs of debt.’’ 115 These effects would tend to reduce pipeline costs and thereby produce a lower index level, rendering CAPP’s concerns unfounded. Although CAPP questions whether the effects of reduced pipeline risk are reflected in the page 700 data, it provides no basis for the Commission to conclude that the reported data fails to adequately account for pipelines’ risks in measuring changes in cost of equity and costs of debt. 53. Second, to the extent that CAPP requests that the Commission review individual pipeline data to evaluate the effects of contract rates upon the pipeline’s risks, this request is both unsupported and misplaced. CAPP has not presented any method for quantifying any disparity in the risks pipelines face when using contract rates versus non-contract rates. Although CAPP states that the Commission should consider requiring pipelines to provide shippers with the workpapers underlying their page 700 cost of service calculations, it has not explained how these workpapers would aid in identifying differences in risk between contract and non-contract rates. Moreover, as CAPP itself acknowledges, the Commission recently declined to require pipelines to provide workpapers 116 and CAPP has not provided a sufficient basis for the Commission to revisit this decision here. More broadly, the Kahn Methodology measures changes in barrel-mile costs on a generic, industrywide basis. Thus, in calculating the index level, the Commission does not scrutinize the inputs underlying individual pipelines’ page 700 data. Accordingly, the review that CAPP 113 Id. at 5. Reply Comments at 33–37. 115 2015 Index Review, 153 FERC ¶ 61,312 at P 28. 116 Revisions to Indexing Policies and Page 700 of FERC Form No. 6, 170 FERC ¶ 61,134, at P 6 (2020). 114 AOPL VerDate Sep<11>2014 15:57 Feb 12, 2021 Jkt 253001 appears to seek would exceed the scope of the five-year index review and conflict with streamlined and simplified ratemaking.117 F. Pipeline Costs Resulting From Integrity Management Regulations and Other Developments 1. Comments 54. AOPL states that oil pipelines have experienced significant cost increases due to pipeline safety and integrity measures and that these costs are likely to increase in the future.118 AOPL submits a declaration from William R. Byrd identifying new and continuing regulatory obligations related to pipeline integrity as well as other factors affecting pipeline costs, such as expenditures related to security and cybersecurity, opposition to pipeline infrastructure, and the COVID– 19 pandemic.119 Mr. Byrd also describes anticipated regulatory requirements that he states will increase pipelines’ obligations and compliance costs in the future.120 AOPL maintains that pipelines’ ability to undertake future expansions and adopt environmental, safety, and security measures in compliance with applicable regulatory requirements depends upon the Commission adopting an index level that allows pipelines to recover expected future cost increases.121 55. Other commenters make similar assertions. PST states that pipeline safety requirements have increased over the last five years and that setting the index level too low could reduce pipelines’ incentives to invest in safety measures.122 EIC echoes AOPL’s statements regarding increasing costs and explains that pipelines’ ability to invest in building and operating facilities depends upon ready access to capital markets and a predictable regulatory environment that reduces investment risks. Thus, EIC asserts that the Commission should be mindful that an insufficiently high index level could impair pipelines’ ability to attract investment.123 56. PHMSA filed comments describing safety rules it has enacted 117 As discussed above, if a shipper determines that a particular pipeline’s page 700 inputs do not accord with the Commission’s existing Opinion No. 154–B methodology, it may file a complaint to that effect with the Commission. BP W. Coast Prods. LLC v. SFPP, L.P., 121 FERC ¶ 61,243 at P 9. 118 AOPL Initial Comments at 36–39; Declaration of William R. Byrd, P.E. at 21. 119 Byrd Declaration at 7–17. 120 Id. at 17–20. 121 AOPL Initial Comments at 40 (quoting 2005 Index Review, 114 FERC ¶ 61,293 at P 63). 122 PST Comments at 1–2. 123 EIC Comments at 7, 11–16. PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 9457 since the 2015 Index Review as well as several pending rulemakings that, if adopted, would impose additional costs upon pipeline operators. Although it takes no position on the specific index level the Commission should adopt, PHMSA states that the index should reflect the costs that its existing and future regulations impose upon pipeline operators.124 57. Shippers reject these arguments and contend that the Commission has previously found that future costs are speculative and inappropriate for inclusion in the index calculation.125 Liquids Shippers argue that costs related to safety or integrity measures incurred during the 2014–2019 period should be reflected in the page 700 data.126 In addition, Joint Commenters and Liquids Shippers contend that if safety or integrity-related costs are not captured in this index calculation, they will be reflected in future index reviews and pipelines may seek to recover those costs in the interim through cost-ofservice rate filings, where appropriate.127 2. Commission Determination 58. We decline to alter our calculation of the index level based upon the arguments concerning safety or integrity-related costs. To the extent that new or continuing regulatory requirements caused pipelines’ barrelmile costs to increase during the 2014– 2019 period, those cost changes would be reflected in the page 700 data.128 We also decline to adjust the index calculation based upon projections of future costs or other developments occurring after the conclusion of the 2014–2019 period. As the Commission has previously explained, future cost projections related to regulatory changes are speculative and inappropriate for inclusion in the index.129 Additionally, because the Kahn Methodology only considers cost changes incurred during 124 PHMSA Reply Comments at 1–4. Commenters Reply Comments at 19–20 (quoting 2010 Index Review, 133 FERC ¶ 61,312 at P 125); Liquids Shippers Reply Comments at 31– 32 (same); CAPP Initial Comments at 2. 126 Liquids Shippers Reply Comments at 33. 127 Joint Commenters Reply Comments at 20; Liquids Shippers Reply Comments at 33. 128 If such obligations result in a substantial divergence between a pipeline’s actual costs and the rate resulting from application of the index, the pipeline may file to change its rate using the Commission’s cost-of-service methodology pursuant to 18 CFR 342.4(a) of the Commission’s regulations. 18 CFR 342.4(a); see also Order No. 561, FERC Stats. & Regs. ¶ 30,985 at 30,957 (explaining that ‘‘such circumstances as increased safety or environmental regulations may justify the use of a cost-of-service methodology’’). 129 2010 Index Review, 133 FERC ¶ 61,228 at P 125. 125 Joint E:\FR\FM\16FER1.SGM 16FER1 9458 Federal Register / Vol. 86, No. 29 / Tuesday, February 16, 2021 / Rules and Regulations the prior five years, regulatory changes and other developments occurring after the 2014–2019 period concluded on December 31, 2019, are beyond the scope of this index review.130 To the extent that such developments affect barrel-mile costs going forward, the Commission will incorporate those cost changes as reflected in page 700 cost-ofservice data in future index calculations. G. Treatment of Mergers in the Data Set khammond on DSKJM1Z7X2PROD with RULES 1. Comments 59. To account for mergers that occurred during the study period, the Kahn Methodology adds the separate costs the pipelines reported on Form No. 6 in the first year of the data set (e.g., 2014) and compares this sum to the newly combined company’s costs in the last year of the data set (e.g., 2019).131 The Commission employs a similar process for addressing divestitures, adding the separate costs that the pipelines reported on Form No. 6 in the last year of the data set and comparing this sum to the previously combined company’s costs in the first year of the data set. Joint Commenters and AOPL each propose to adjust the data set to account for merger activity that they claim occurred during the 2014–2019 period but was not reflected in the data underlying the Commission’s proposal in the NOI. 60. Joint Commenters propose to account for six additional mergers: (1) Plains Southcap Inc. and Plains Pipeline, LP; (2) Red River Crude Pipeline LLC and Enterprise Crude Pipeline LLC; (3) Regency Liquids Pipeline LLC and Lone Start NGL Pipeline LP; (4) Independent Trading & Transportation Company I, L.L.C. and Hiland Crude, LLC; (5) Phillips 66 Pipeline LLC and Phillips 66 Carrier LLC; and (6) Excel Pipeline LLC and Sunoco Pipeline L.P.132 AOPL proposes to reflect the Excel-Sunoco merger and two additional mergers: (i) Mid-Valley Pipeline Company and Energy Transfer Crude Oil Company LLC (Energy Transfer Crude); and (ii) The Premcor Pipeline Co. and Valero Partners Lucas, LLC (Valero Lucas).133 Joint 130 Cost changes incurred during the 2019–2024 period as a result of integrity management and other regulatory obligations will be addressed in the 2025 index review. 131 2015 Index Review, 153 FERC ¶ 61,312 at P 38. The Commission has explained that without this step, the absorbed pipeline’s cost data would be needlessly discarded. Id. 132 Joint Commenters Reply Comments, Brattle Group Report, Attachment D at 2, 4–7 (Data Merger Analysis). 133 Shehadeh Initial Decl., Ex. A1 (Companies Consolidated to Adjust for Mergers, Acquisitions, and Changes in Corporate Form 2014–2019). VerDate Sep<11>2014 15:57 Feb 12, 2021 Jkt 253001 Commenters disagree with AOPL’s proposals to reflect mergers between Mid-Valley-Energy Transfer Crude and Premcor-Valero Lucas.134 2. Commission Determination 61. We will adjust the data set to reflect mergers between: (1) Plains Southcap Inc. and Plains Pipeline, LP; (2) Red River Crude Pipeline LLC and Enterprise Crude Pipeline LLC; (3) Regency Liquids Pipeline LLC and Lone Star NGL Pipeline LP; (4) Independent Trading & Transportation Company I, L.L.C. and Hiland Crude, LLC; (5) Phillips 66 Pipeline LLC and Phillips 66 Carrier LLC; and (6) Excel Pipeline LLC and Sunoco Pipeline L.P.135 We have verified through a review of Form No. 6 data that these mergers took place during the 2014–2019 period and will therefore revise the data set to combine these pipelines’ costs in 2019 as appropriate. 62. We decline, however, to adopt AOPL’s proposal to reflect mergers between Mid-Valley-Energy Transfer Crude and Premcor-Valero Lucas. We find that the record does not support adjusting the Form No. 6 data to reflect these mergers. For instance, a review of the total miles owned at year end does not indicate that any transfer of assets took place between these companies during the review period.136 The Commission’s review of other Form No. 6 data likewise did not confirm whether these mergers in fact took place.137 IV. 2021–2026 Oil Pipeline Index 63. Based upon the foregoing, we calculate the index level used to determine annual changes to oil pipeline rate ceilings for the five-year period beginning July 1, 2021 as follows. First, as shown in Attachment A (Exhibit 2) we remove those pipelines that did not provide Form No. 6, page 700 data or provided incomplete data. Second, as shown in Attachment A (Exhibit 5), we consider the data on Form No. 6, page 700 to calculate each pipeline’s cost change on a per barrelmile basis over the prior five-year period (e.g., the years 2014–2019 in this proceeding). Third, to remove statistical outliers and spurious or unrepresentative data, we trim the data set to those pipelines in the middle 80% 134 Joint Commenters Reply Comments, Brattle Group Report at 48–50. 135 The Commission identified the Excel Pipeline LLC-Sunoco Pipeline L.P. merger in the NOI proposal but did not combine their data for 2019. 136 Joint Commenters Reply Comments, Brattle Report at 49–50. 137 For example, despite its alleged merger with Energy Transfer Partners, Mid-Valley continued filing Form No. 6 in its own name for each year of the review period through 2019. PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 of cost changes. Fourth, as shown in Attachment A (Exhibit 5), we calculate three measures of the middle 80%’s central tendency: The median, the mean, and a weighted mean. Fifth, we calculate a composite by taking a simple average of those three measures of central tendency, as shown in Attachment A (Exhibit 1). Finally, we compare this composite to the value of the PPI–FG index data over the same period (0.52% in this proceeding) and set the index level at PPI–FG plus (or minus) this differential. Using these calculations, we establish an index level of PPI–FG+0.78% for the five-year period beginning July 1, 2021. The Commission Orders Consistent with the discussion in this order, the Commission determines that the appropriate oil pipeline index level for the next five years, July 1, 2021 through June 30, 2026, is PPI– FG+0.78%. By the Commission. Commissioner Glick is dissenting with a separate statement attached. Commissioner Clements is not participating. Issued: December 17, 2020. Kimberly D. Bose, Secretary. Federal Energy Regulatory Commission Five-Year Review of Oil Pipeline Index Glick, Commissioner, Dissenting 1. Today’s order is a complete abdication of the Commission’s responsibility to protect oil pipeline customers. It overthrows wellestablished Commission policy and goes back on explicit promises we made to customers just a few years ago. As a result, the Commission is handing oil pipelines a multi-billion-dollar windfall for which customers are left to pick up the tab. I dissent strongly from those unreasoned and indefensible determinations. * * * * * 2. A little background is necessary to appreciate just how seriously the Commission has fallen down on the job. In the Energy Policy Act of 1992, Congress directed the Commission to promulgate a rule to simplify its ratemaking methodology for oil pipelines.1 Shortly thereafter, the Commission issued Order No. 561, which adopted an indexing methodology as part of the Commission’s approach for regulating 1 Energy Policy Act of 1992, Public Law 102–486, 1801(a) (Oct. 24, 1992) (codified at 42 U.S.C. 7172 note (2006)). E:\FR\FM\16FER1.SGM 16FER1 Federal Register / Vol. 86, No. 29 / Tuesday, February 16, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES oil pipeline rates.2 Under that approach, if an oil pipeline increases its rates by less than the annual ceiling established by the index, the pipeline does not need to justify those rates through a cost-ofservice filing.3 The majority of oil pipelines under the Commission’s jurisdiction use this index to demonstrate that their rate increases are just and reasonable. 3. Following Order No. 561, the Commission updates the index every five years to ensure that it represents a reasonable measure of the annual change in a typical oil pipeline’s cost of service. To set the annual index, the Commission calculates each jurisdictional pipeline’s change in its cost-of-service over the previous fiveyear period—we call this oil pipelines’ ‘‘cost change data.’’ The Commission then uses that data to determine an appropriate adjustment to the Producer Price Index for Finished Goods (PPI–FG) established by the U.S. Department of Labor.4 To avoid outliers or other anomalous, unrepresentative cost data, the Commission has historically relied on only the cost change data for the middle 50% of pipelines when updating the index—that is, it excludes data from the 25% of pipelines with the lowest cost changes and the data from the 25% of pipelines with the highest.5 4. In June of this year, the Commission issued a notice of inquiry that commenced its five-year update to the index. In that notice, the Commission proposed an index level of PPI–FG+0.09, based on our historical practice of relying on the middle 50% of cost change data.6 Today’s order tosses that historical practice aside and establishes an index level that is nearly ten times higher at PPI–FG+0.78.7 That order of magnitude increase is largely 2 Revisions to Oil Pipeline Reguls. Pursuant to Energy Pol’y Act of 1992, Order No. 561, FERC Stats. & Regs. ¶ 30,985, at 30,955 (1993) (crossreferenced at 65 FERC ¶ 61,109), order on reh’g, Order No. 561–A, FERC Stats. & Regs. ¶ 31,000 (1994) (cross-referenced at 68 FERC ¶ 61,138), aff’d sub nom. Ass’n of Oil Pipe Lines v. FERC, 83 F.3d 1424 (D.C. Cir. 1996). 3 At least absent a protest to the update. See Order No. 561, FERC Stats. & Regs. ¶ 30,985 at 30,947. 4 Five-Year Rev. of the Oil Pipeline Index, 173 FERC ¶ 61,245, at P 5 (2020) (2020 Index Review). The resulting index level is expressed as the PPI– FG plus or minus a value that corresponds to the cost change data adjustment. 5 This practice of excluding the top and bottom 25% was part of Dr. Alfred Kahn’s original proposal that the Commission adopted in 1994. Ass’n of Oil Pipe Lines v. FERC, 876 F.3d 336, 340 (D.C. Cir. 2017) (noting that in 1994 Dr. Kahn ‘‘omitted from his analysis the pipelines within the upper and lower 25 percent of the cost spectrum in order to exclude statistical outliers and incomplete or questionable data’’). 6 Five-Year Rev. of the Oil Pipeline Index, 171 FERC ¶ 61,239, at P 9 (2020). 7 2020 Index Review, 173 FERC ¶ 61,245 at P 2. VerDate Sep<11>2014 15:57 Feb 12, 2021 Jkt 253001 the result of a pair of unreasoned, illogical and unsupported changes that lack any meaningful support in the record before us. I’ll discuss them in turn. 5. The Commission’s first major mistake is to abandon its wellestablished practice of updating the index using the cost change data from the middle 50% of oil pipelines. As noted, in order to weed out potential anomalous, unrepresentative cost data and ensure that the cost change data reflects the experience of a typical pipeline, the Commission’s established practice is to ‘‘trim’’ the data down to the middle 50% of cost changes. The Commission has explained that relying only on those central values best approximates the operations of a typical pipeline because it prevents the Commission from relying on unrepresentative cost changes, such as a one-time increase in rate base, plant retirement, significant expansions or acquisitions, or localized changes in supply and demand.8 6. Today’s order abandons that approach and instead uses the data from the middle 80% of pipelines.9 That change dramatically increases the likelihood that the updated index will reflect anomalous data that does not shed light on the cost changes experienced by a typical pipeline, which, in practice, skews the index upwards. Relying upon those relative outliers is particularly inappropriate here since the middle 50% of pipelines corresponds to a much larger percentage of the total barrel-miles shipped over the last five years than in previous index updates.10 In other words, the middle 50% already corresponds to a significantly larger percentage of total oil transportation service provided than in previous index updates, which would seem to undermine any need to expand the data set. 7. The Commission’s justification for abandoning the 50% approach consists of nothing more than variations on the theme that more data is better.11 But, as with most things in life, quality is more important than quantity. Including more cost change data is not necessarily an improvement when there is good reason to believe that the incremental data is 8 Five-Year Rev. of Oil Pricing Index, 133 FERC ¶ 61,228, at P 61 (2010) (citing Order No. 561–A, FERC Stats. & Regs. ¶ 31,000 at 31,097) (2010 Index Review); Five-Year Rev. of Oil Pipeline Index, 153 FERC ¶ 61,312, at P 24 (2015) (2015 Index Review). 9 2020 Index Review, 173 FERC ¶ 61,245 at P 25. 10 The middle 50% of this data set contains 82% of total barrel-miles subject to the index while, in 2015 and 2010, the middle 50% contained only 56% and 76% of total barrel-miles, respectively. Id. P 23. 11 Id. PP 26–29. PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 9459 made up of outliers whose experience is less representative of a typical oil pipeline with a normal cost structure. As noted, the purpose of the index is to approximate a typical oil pipeline’s change in cost—an exercise that does not benefit from including cost change data from pipelines that are, by definition, unrepresentative of the average pipeline.12 And that is exactly why the Commission has consistently rejected replacing the 50% approach with the 80% approach adopted in today’s order.13 In addition, the Commission chastises shippers for not arguing that every pipeline whose cost change data would have been excluded using the middle 50% was an outlier.14 As an initial matter, the shippers did provide illustrative data explaining why seven of those pipelines’ cost change data was not representative, which you might think would suffice to support the Commission continuing its historical practice.15 In any case, the burden to show that the index is reasonable is on the Commission, and it cannot be carried simply by arguing that the shippers should have done more. 8. The Commission’s second major mistake is to break its promise to protect ratepayers following the U.S. Court of Appeals for the District of Columbia Circuit’s decision in United Airlines v. FERC,16 which struck down the Commission’s practice of allowing Master Limited Partnerships (MLPs) to double recover their income tax cost.17 As a result of that decision, MLPs may no longer recover an income tax 12 See 2015 Index Review, 153 FERC ¶ 61,312 at P 43 (‘‘[B]y definition, costs at the top (or bottom) of the middle 80 percent deviate significantly from the cost experience of other pipelines. To the extent that the middle 80 percent data conforms to a lognormal distribution, outlying cost increases per barrel-mile will not be offset by similarly outlying cost decreases. Thus, using the middle 80 percent would skew the index upward based upon these outlying cost increases, which is contrary to the objective of the index to reflect normal industrywide cost changes.’’); 2010 Index Review, 133 FERC ¶ 61,228 at P 63 (‘‘[T]he use of the middle 50 minimizes the risk of including pipelines that experienced either large increases or decreases in cost (or errant data) that may be included in an 80 percent sample, while still capturing changes from a broad spectrum of the pipeline industry.’’). 13 See 2015 Index Review, 153 FERC ¶ 61,312 at PP 42–44; 2010 Index Review, 133 FERC ¶ 61,228 at PP 60–63. 14 2020 Index Review, 173 FERC ¶ 61,245 at P 28. 15 Id. 16 United Airlines, Inc. v. FERC, 827 F.3d 122 (D.C. Cir. 2016) (finding that the Commission permitted a double recovery of income tax costs by allowing an MLP to recover both an income tax allowance and a return on equity determined pursuant to the discounted cash flow methodology, which already reflects income tax costs). 17 Inquiry Regarding the Commission’s Pol. for Recovery of Income Tax Costs, 162 FERC ¶ 61,227 (2018 Income Tax Policy Statement), reh’g denied, 164 FERC ¶ 61,030 (2018). E:\FR\FM\16FER1.SGM 16FER1 9460 Federal Register / Vol. 86, No. 29 / Tuesday, February 16, 2021 / Rules and Regulations allowance in their cost of service.18 Following United Airlines, in 2018, the Commission required natural gas pipelines to immediately eliminate that double recovery,19 but declined to require something similar for oil pipelines, promising, quite explicitly, that it would address the issue when it next updated the index.20 9. So much for that. In today’s order, the Commission goes back on its word and allows any oil pipeline that was an MLP in 2014 to retroactively remove its income tax allowance from its 2014 cost-of-service data.21 That change juices the data to make it look like oil pipeline costs increased by more than they actually did between 2014 and 2019, thereby leading to a higher index value. And, as if that weren’t bad enough, today’s order also allows any pipeline that transitioned from an MLP to a C-Corporation, thereby regaining the right to an income tax allowance, to remove the income tax allowance from their 2014 numbers.22 The result is, you guessed it, another increase in the cost change data, a higher index level, and more expensive rates for customers. 10. Nothing in today’s order justifies that result. The Commission summarily concludes that the index update is not an appropriate vehicle for incorporating the post-United Airlines’ policy changes.23 That proposition is hardly self-evident, especially given that all five then-Commissioners felt differently just two years ago.24 In any case, the fact of the matter is that tax costs are real costs,25 meaning that oil pipelines’ costs in the past five years have changed as a result of the United Airlines decision. Finally, reneging on our promise in the 2018 Income Tax Policy Statement perpetuates the effects of the double recovery gravy train that the court 18 Id. P 2. khammond on DSKJM1Z7X2PROD with RULES 19 Interstate & Intrastate Nat. Gas Pipelines; Rate Changes Relating to Fed. Income Tax Rate, 162 FERC ¶ 61,226 (2018). 20 The Commission’s statement is worth reading in whole: ‘‘When oil pipelines file Form No. 6, page 700 on April 18, 2018, they must report an income tax allowance consistent with United Airlines and the Commission’s subsequent holdings denying an MLP an income tax allowance. Based upon page 700 data, the Commission will incorporate the effects of the post-United Airlines’ policy changes (as well as the Tax Cuts and Jobs Act of 2017) on industry-wide oil pipeline costs in the 2020 fiveyear review of the oil pipeline index level. In this way the Commission will ensure that the industrywide reduced costs are incorporated on an industrywide basis as part of the index review.’’ 2018 Income Tax Policy Statement, 162 FERC ¶ 61,227 at P 46. 21 2020 Index Review, 173 FERC ¶ 61,245 at P 16. 22 Id. P 20. 23 Id. P 18. 24 2018 Income Tax Policy Statement, 162 FERC ¶ 61,227 at P 46. 25 Ask anyone who pays their taxes. VerDate Sep<11>2014 15:57 Feb 12, 2021 Jkt 253001 invalidated in United Airlines. That is simply indefensible. * * * * * 11. The Commission’s actions today hand oil pipelines what will amount to a multi-billion-dollar windfall over the next five years. Calling these decisions arbitrary and capricious or unreasoned would let the Commission off easy. They represent a complete abdication of our statutory responsibility to protect consumers—the companies and individuals who will be stuck paying those additional billions of dollars to the oil pipelines. Although our responsibilities under the Interstate Commerce Act don’t always get the same attention from the public as some of our other proceedings, today’s order illustrates the tremendous financial consequences that they can have for everyday customers. I hope that proceedings like today’s lead interested parties everywhere to more closely scrutinize the Commission’s oil orders so that these multi-billion-dollar handouts do not become a matter of course. For these reasons, I respectfully dissent. Richard Glick, Commissioner. [FR Doc. 2021–03120 Filed 2–12–21; 8:45 am] BILLING CODE 6717–01–P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG–2021–0057] RIN 1625–AA00 Emergency Safety Zone; Richmond Entrance Channel, Richmond, CA Coast Guard, DHS. Temporary final rule. AGENCY: ACTION: The Coast Guard is establishing a temporary safety zone in the navigable waters of the Richmond Entrance Channel off of Richmond, CA in support of the safe navigation of vessels and environmental response efforts to address the hydrocarbon release from the Richmond Long Wharf on February 09, 2021. Based on this information, this safety zone is necessary to protect life, vessels, and the maritime environment. Unauthorized persons or vessels are prohibited from entering into, transiting through, or remaining in the safety zone without permission from the Captain of the Port SUMMARY: PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 San Francisco or a Captain of the Port San Francisco designated representative. DATES: This rule is effective without actual notice on February 16, 2021. For the purposes of enforcement, actual notice will be used from 12:01 a.m. February 10, 2021 until February 16, 2021. ADDRESSES: To view documents mentioned in this preamble as being available in the docket, go to https:// www.regulations.gov, type USCG–2021– 0057 in the ‘‘SEARCH’’ box and click ‘‘SEARCH.’’ Click on Open Docket Folder on the line associated with this rule. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call or email Chief Warrant Officer Mickey Price, Waterways Management, U.S. Coast Guard; telephone (415) 399–7442, email SFWaterways@uscg.mil. SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port San Francisco DHS Department of Homeland Security § Section U.S.C. United States Code II. Background Information and Regulatory History The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are ‘‘impracticable, unnecessary, or contrary to the public interest.’’ Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking with respect to this rule because it is impracticable. The Coast Guard received notice of the hydrocarbon release into the waterway and the resulting need for this safety zone on February 9, 2021. It is impracticable to go through the full rulemaking process, including providing a reasonable comment period and considering those comments, because the Coast Guard must establish this emergency temporary safety zone by February 10, 2021. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be contrary to public interest because immediate action is E:\FR\FM\16FER1.SGM 16FER1

Agencies

[Federal Register Volume 86, Number 29 (Tuesday, February 16, 2021)]
[Rules and Regulations]
[Pages 9448-9460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03120]


=======================================================================
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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 342

[Docket No. RM20-14-000]


Five-Year Review of the Oil Pipeline Index

AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: Order establishing index level.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) issues 
this Final Order concluding its five-year review of the index level 
used to determine annual changes to oil pipeline rate ceilings. The 
Commission establishes an index level of Producer Price Index for 
Finished Goods plus 0.78% (PPI-FG+0.78%) for the five-year period 
commencing July 1, 2021.

DATES: This order is effective February 16, 2021.

FOR FURTHER INFORMATION CONTACT: 
Evan Steiner (Legal Information), Office of the General Counsel, 888 
First Street NE, Washington, DC 20426, (202) 502-8792
Monil Patel (Technical Information), Office of Energy Market 
Regulation, 888 First Street NE, Washington, DC 20426, (202) 502-8296

SUPPLEMENTARY INFORMATION: 
    1. On June 18, 2020, the Commission issued a Notice of Inquiry 
initiating its five-year review to establish the oil pipeline index 
level for the July 1, 2021 to June 30, 2026 time period.\1\ The NOI 
requested comment regarding: (a) The proposed index level of Producer 
Price Index for Finished Goods plus 0.09% (PPI-FG+0.09%); and (b) any 
alternative methodologies for calculating the index level.
---------------------------------------------------------------------------

    \1\ Five-Year Review of the Oil Pipeline Index, 171 FERC ] 
61,239, at P 1 (2020) (NOI).
---------------------------------------------------------------------------

    2. For the reasons discussed below, we adopt an index level of PPI-
FG+0.78%. The departure from the NOI results from: (a) Trimming the 
data set to the middle 80% of cost changes; (b) adopting Designated 
Carriers' \2\ proposal to adjust the data set to remove the effects of 
the Commission's 2018 income tax policy change for Master Limited 
Partnership (MLP)-owned pipelines; and (c) updated Form No. 6 filings 
and other corrections to the data set. The Commission's indexing 
calculations and other data analysis are contained in Attachment A to 
this order. As discussed below, we decline to adopt other changes to 
the index calculation proposed by commenters.
---------------------------------------------------------------------------

    \2\ Designated Carriers include Buckeye Partners, L.P., Colonial 
Pipeline Company, Energy Transfer LP, Enterprise Products Partners 
L.P., and Plains All American Pipeline, L.P.
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I. Background

A. Establishment of the Indexing Methodology

    3. The Energy Policy Act of 1992 (EPAct 1992) required the 
Commission to establish a ``simplified and generally applicable'' 
ratemaking methodology \3\ that was consistent with the just and 
reasonable standard of the Interstate Commerce Act (ICA).\4\ To 
implement this mandate, the Commission issued Order No. 561 \5\ 
establishing an indexing methodology that allows oil pipelines to 
change their rates subject to certain ceiling levels as opposed to 
making cost-of-service filings.\6\
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    \3\ Public Law 102-486 1801(a), 106 Stat. 3010 (Oct. 24, 1992). 
This mandate to establish a simplified and generally applicable 
ratemaking methodology specifically excluded the Trans-Alaska 
Pipeline System (TAPS), or any pipeline delivering oil, directly or 
indirectly, into TAPS. Id. 1804(2)(B).
    \4\ 49 U.S.C. app. 1 et seq.
    \5\ Revisions to Oil Pipeline Regulations Pursuant to Energy 
Policy Act of 1992, Order No. 561, 58 FR 58753 (Nov. 4, 1993) FERC 
Stats. & Regs. ] 30,985 (1993) (cross-referenced at 65 FERC ] 
61,109), order on reh'g, Order No. 561-A, FERC Stats. & Regs. ] 
31,000 (1994) (cross-referenced at 68 FERC ] 61,138), aff'd sub nom. 
Ass'n of Oil Pipe Lines v. FERC, 83 F.3d 1424 (D.C. Cir. 1996) (AOPL 
I).
    \6\ Pursuant to the Commission's indexing methodology, oil 
pipelines change their rate ceiling levels effective every July 1 by 
``multiplying the previous index year's ceiling level by the most 
recent index published by the Commission.'' 18 CFR 342.3(d)(1). Oil 
pipelines may adjust their rates to the ceiling levels pursuant to 
Commission's regulations so long as no protest or complaint 
demonstrates that the index rate change substantially diverges from 
the pipeline's cost changes. Id. 343.2(c)(1).
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    4. In Order No. 561, the Commission committed to review the index 
level every five years to ensure that it adequately reflects changes to 
industry costs.\7\ The Commission conducted five-year index reviews in 
2000,\8\ 2005,\9\ 2010,\10\ and 2015.\11\ In the 2015 review, the 
Commission established the index level of PPI-FG+1.23%, to be effective 
for the five-year period beginning July 1, 2016.\12\ The index level 
established herein results from the Commission's fifth five-year review 
of the index level.
---------------------------------------------------------------------------

    \7\ Order No. 561, FERC Stats. & Regs. ] 30,985 at 30,941.
    \8\ Five-Year Review of Oil Pipeline Pricing Index, 93 FERC ] 
61,266 (2000), aff'd in part and remanded in part sub nom. Ass'n of 
Oil Pipe Lines v. FERC, 281 F.3d 239 (D.C. Cir. 2002) (AOPL II), 
order on remand, 102 FERC ] 61,195 (2003), aff'd sub nom. Flying J 
Inc. v. FERC, 363 F.3d 495 (D.C. Cir. 2004).
    \9\ Five-Year Review of Oil Pipeline Pricing Index, 114 FERC ] 
61,293 (2006) (2005 Index Review).
    \10\ Five-Year Review of Oil Pipeline Pricing Index, 133 FERC ] 
61,228 (2010) (2010 Index Review), reh'g denied, 135 FERC ] 61,172 
(2011).
    \11\ Five-Year Review of the Oil Pipeline Index, 153 FERC ] 
61,312 (2015) (2015 Index Review), aff'd sub nom. Ass'n of Oil Pipe 
Lines v. FERC, 876 F.3d 336 (D.C. Cir. 2017) (AOPL III).
    \12\ 2015 Index Review, 153 FERC ] 61,312 at P 9.
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B. The Kahn Methodology

    5. In Order No. 561 and each successive five-year review, the 
Commission has calculated the index level based upon a methodology 
developed by Dr. Alfred E. Kahn.\13\ The Kahn Methodology uses pipeline 
data from Form No. 6, page 700 from the prior five-year period to 
determine an appropriate adjustment to be applied to PPI-FG. The 
calculation is as follows. Each pipeline's cost change on a per-barrel 
mile basis over the prior five-year period (e.g., the years 2014-2019 
in this proceeding) is calculated. In order to remove statistical 
outliers and spurious data, under the Kahn Methodology, the resulting 
data set is trimmed to those oil pipelines in the middle 50% of cost 
changes (middle 50%). The Kahn Methodology then calculates three 
measures of the middle 50%'s central tendency: The median, the mean, 
and a weighted mean.\14\ The Kahn Methodology calculates a composite by 
averaging these measures of central tendency and measures the 
difference between the composite and the PPI-FG over the prior five-
year period. The Commission then sets the index level at PPI-FG plus 
(or minus) this differential.
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    \13\ The United States Court of Appeals for the District of 
Columbia Circuit has affirmed the Commission's use of the Kahn 
Methodology. AOPL I, 83 F.3d at 1433-37; Flying J Inc. v. FERC, 363 
F.3d at 497-500.
    \14\ The weighted mean assigns a different weight to each 
pipeline's cost change based upon the pipeline's total barrel-miles.
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C. The 2020 Five-Year Review

    6. On June 18, 2020, the Commission issued the NOI initiating its 
five-year

[[Page 9449]]

review to establish the index level for the July 1, 2021 to June 30, 
2026 period. The NOI proposed an index level of PPI-FG+0.09% and 
requested comment on this proposal and any alternative methodologies 
for calculating the index level.\15\ The Commission explained that 
commenters could address issues including, but not limited to, 
different data trimming methodologies and whether, and if so how, the 
Commission should reflect the effects of cost-of-service policy changes 
in the index calculation.\16\
---------------------------------------------------------------------------

    \15\ NOI, 171 FERC ] 61,239 at PP 7-8.
    \16\ Id. P 8.
---------------------------------------------------------------------------

II. Comments

    7. Initial comments filed in response to the NOI were due on August 
17, 2020, and reply comments were due on September 11, 2020. Comments 
were filed by the Association of Oil Pipe Lines (AOPL) (together with 
Designated Carriers, Pipelines), Designated Carriers, Kinder Morgan, 
Inc., Colonial Pipeline Company, Joint Commenters,\17\ the Liquids 
Shippers Group (Liquids Shippers),\18\ the Canadian Association of 
Petroleum Producers (CAPP) (together with Joint Commenters and Liquids 
Shippers, Shippers), the Energy Infrastructure Council (EIC), the 
Pipeline Safety Trust, and the Pipeline and Hazardous Materials Safety 
Administration (PHMSA).
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    \17\ Joint Commenters include: The Airlines for America; Chevron 
Products Company; the National Propane Gas Association; and Valero 
Marketing and Supply Company.
    \18\ For purposes of this proceeding, Liquids Shippers include: 
Apache Corporation; Cenovus Energy Marketing Services Ltd.; 
ConocoPhillips Company; Devon Gas Services, L.P.; Equinor Marketing 
& Trading US Inc.; Fieldwood Energy LLC; Marathon Oil Company; 
Murphy Exploration and Production Company--USA; Ovintiv Marketing 
Inc.; and Pioneer Natural Resources USA, Inc.
---------------------------------------------------------------------------

    8. The commenters discuss numerous issues related to the proposed 
index level, including statistical data trimming and whether the index 
should incorporate the effects of the Commission's 2018 policy change 
requiring MLP-owned pipelines to eliminate the income tax allowance and 
previously accrued Accumulated Deferred Income Taxes (ADIT) balances 
from their page 700 summary costs of service (Income Tax Policy 
Change).\19\ In addition, Liquids Shippers propose to replace the 
weighted mean in the Kahn Methodology's calculation of central tendency 
with the weighted median and to replace the returns on equity (ROE) 
reported on page 700 for 2014 and 2019 with standardized, industry-wide 
ROEs for both years. The commenters propose varying index levels, 
including AOPL's proposal to adopt an index level of at least PPI-
FG+0.79%, Designated Carriers' proposals of PPI-FG+1.27% (using the 
middle 80% of cost changes) or PPI-FG+0.82% (using the middle 50%), 
Joint Commenters' proposal of PPI-FG-0.19%, and Liquids Shippers' 
proposal of PPI-FG-1.58%.
---------------------------------------------------------------------------

    \19\ Inquiry Regarding the Commission's Policy for Recovery of 
Income Tax Costs, 162 FERC ] 61,227, at P 8 (2018 Income Tax Policy 
Statement), reh'g denied, 164 FERC ] 61,030, at P 13 (2018).
---------------------------------------------------------------------------

III. Discussion

    9. We adopt an index level of PPI-FG+0.78% for the five-year period 
beginning July 1, 2021. We adopt Designated Carriers' proposed 
adjustment to remove the effects of the Income Tax Policy Change from 
the page 700 data used to derive the index and we adopt Pipelines' 
proposal to calculate the index level using the middle 80% of cost 
changes. We also reject Liquids Shippers' proposals to: (a) Calculate 
the composite measure of the data set's central tendency using the 
median of the barrel-mile weighted unit cost change; and (b) replace 
the reported page 700 ROEs for 2014 and 2019 with standardized ROEs. We 
also address arguments regarding negotiated rate contracts as raised by 
CAPP, pipeline costs resulting from integrity management regulations, 
and the treatment of mergers and acquisitions in the data set.

A. 2018 MLP Income Tax Policy Change

1. Comments
    10. Commenters disagree about whether the Commission should 
incorporate the effects of the Income Tax Policy Change in the index 
calculation.\20\ Pipelines argue that the Income Tax Policy Change 
should not be incorporated and present proposals for adjusting the page 
700 data to remove its effects from the calculation. Shippers oppose 
Pipelines' adjustments and contend that the policy change's effects are 
appropriately reflected in the index.
---------------------------------------------------------------------------

    \20\ Commenters either agree or do not dispute that the effects 
of the Tax Cuts and Jobs Act of 2017 (TCJA) are appropriately 
reflected in the data set; and no adjustment is necessary to reflect 
the Commission's May 21, 2020 policy statement revising its ROE 
policy for natural gas and oil pipelines because that policy change 
occurred after the conclusion of the 2014-2019 period. Inquiry 
Regarding the Commission's Policy for Determining Return on Equity, 
171 FERC ] 61,155 (2020) (ROE Policy Statement).
---------------------------------------------------------------------------

    11. AOPL argues that its proposed adjustment to eliminate the 
effects of the Income Tax Policy Change is necessary to calculate an 
index that accurately measures cost changes incurred during the 2014-
2019 period and predicts the likely rate of future cost changes. 
According to AOPL, eliminating the income tax allowance from page 700 
did not affect costs because MLP pipelines' income tax costs were the 
same before and after the policy change. Thus, AOPL asserts that the 
Commission should remove the policy change's effects to ensure that the 
page 700 data reflects consistent policies.
    12. To remove the policy change's effects from the data set, AOPL's 
witness Dr. Shehadeh proposes to adjust the reported page 700 data for 
pipelines that were MLPs throughout the 2014-2019 period based upon the 
following steps. First, Dr. Shehadeh eliminates the 2014 income tax 
allowance for all pipelines that reduced their page 700 income tax 
allowance for 2016 from a positive number to zero following the Income 
Tax Policy Change.\21\ Second, Dr. Shehadeh adjusts these pipelines' 
2014 page 700 return on rate base to reflect the elimination of their 
previously accumulated ADIT balances.\22\ This adjustment involves, for 
each pipeline: (a) Taking the difference between the 2016 rate base 
reported in the pipeline's April 18, 2017 page 700 filing (with ADIT 
balances included) and the higher 2016 rate base reported in its April 
18, 2018 filing (with ADIT balances removed); (b) adding this amount to 
the 2014 rate base; and (c) calculating the return on the higher 2014 
rate base by multiplying the higher rate base by the 2014 weighted 
average cost of capital.\23\
---------------------------------------------------------------------------

    \21\ 2016 is the only year for which pipelines filed page 700 
data reflecting both the 2018 Income Tax Policy Change and the 
Commission's prior income tax allowance policy. Oil pipelines filed 
page 700 data for 2016 on two occasions: As current-year data in the 
Form No. 6 filings due for submission on April 18, 2017, before the 
Income Tax Policy Change; and as prior-year data in Form No. 6 
filings due for submission on April 18, 2018, after the Income Tax 
Policy Change. See 2018 Income Tax Policy Statement, 162 FERC ] 
61,227 at P 46 & n.83 (directing MLP pipelines to eliminate the 
income tax allowance in the 2016 and 2017 data reported in their 
April 18, 2018 Form No. 6, page 700 filings).
    \22\ AOPL Initial Comments at 28-29 (citing Shehadeh Initial 
Decl. at 14-15).
    \23\ Id.; Shehadeh Initial Decl. at 16.
---------------------------------------------------------------------------

    13. Designated Carriers support AOPL's position and propose to 
extend AOPL's proposed adjustments to all pipelines that were owned by 
MLPs in 2014 and later converted to C-Corporations, not just those 
pipelines that were MLPs throughout the 2014-2019 data period. 
Designated Carriers contend that this approach is necessary to avoid 
treating one class of MLPs (those that were MLPs in 2014 and remained 
MLPs in 2019) differently from another class (those that were MLPs in 
2014 and converted to C-

[[Page 9450]]

Corporations during the review period).\24\
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    \24\ Designated Carriers Initial Comments at 21 (citing Webb 
Initial Affidavit at P 24).
---------------------------------------------------------------------------

    14. Shippers oppose Pipelines' proposed adjustments and argue that 
the Commission should incorporate the effects of the Income Tax Policy 
Change in the index calculation. Shippers contend that the index is 
meant to reflect changes to recoverable pipeline costs as determined 
under the Commission's Opinion No. 154-B cost-of-service 
methodology.\25\ Because the Income Tax Policy Change prohibits MLP 
pipelines from recovering an income tax allowance under that 
methodology, Shippers assert that the index should reflect this 
reduction in recoverable costs.\26\
---------------------------------------------------------------------------

    \25\ Joint Commenters Reply Comments at 13-14 (quoting 2015 
Index Review, 153 FERC ] 61,312 at P 13) (citing AOPL III, 876 F.3d 
at 345-46); Liquids Shippers Reply Comments at 6 (quoting AOPL III, 
876 F.3d at 345; 2015 Index Review, 153 FERC ] 61,312 at P 13).
    \26\ Joint Commenters Initial Comments at 12-15; Joint 
Commenters Reply Comments at 13-15; Liquids Shippers Initial 
Comments at 33-42; Liquids Shippers Reply Comments at 6-7.
---------------------------------------------------------------------------

    15. Furthermore, Shippers claim that adopting Pipelines' proposals 
would contravene the Commission's commitment in the 2018 Income Tax 
Policy Statement to ``incorporate the effects of [the policy change] on 
industry-wide oil pipeline costs'' and ``ensure that the industry-wide 
reduced costs are incorporated on an industry-wide basis as part of'' 
the 2020 five-year review.\27\ Shippers argue that the Commission opted 
to incorporate these effects in the index in lieu of directing 
pipelines to submit rate filings or initiating rate investigations to 
eliminate the income tax double recovery from MLP oil pipeline rates, 
as the Commission did for MLP natural gas pipelines. Thus, Shippers 
contend that the Commission must reflect the elimination of the income 
tax allowance and associated ADIT balances from MLP oil pipelines' page 
700 costs of service in order to bring those pipelines' rates in line 
with their recoverable costs.\28\
---------------------------------------------------------------------------

    \27\ Joint Commenters Reply Comments at 16-17 (quoting 2018 
Income Tax Policy Statement, 162 FERC ] 61,227 at P 46); Liquids 
Shippers Initial Comments at 34-35 (same).
    \28\ Liquids Shippers Initial Comments at 34-35, 40; see also 
Joint Commenters Reply Comments at 16-17 (citing 2018 Income Tax 
Policy Statement, 162 FERC ] 61,227 at P 46).
---------------------------------------------------------------------------

2. Commission Determination
    16. Whether the index should reflect the effects of cost-of-service 
policy changes is an issue of first impression.\29\ For the reasons 
discussed below, we adopt Designated Carriers' proposal to adjust the 
page 700 data set to remove the effects of the Income Tax Policy Change 
from the index calculation. As a result, for all pipelines that were 
MLPs in 2014, we reduce the 2014 income tax allowance to zero and 
revise the 2014 return on rate base to reflect the removal of ADIT. We 
find that this adjustment is necessary to accurately calculate the 
index.
---------------------------------------------------------------------------

    \29\ This issue did not arise prior to the 2015 Index Review 
because the Commission measured industry-wide cost changes in the 
Order No. 561 Rulemaking and the 2000, 2005, and 2010 index reviews 
using Form No. 6 accounting data, rather than the summary cost-of-
service data reported on page 700. Because the Commission did not 
adopt any significant cost-of-service policy changes during the 
2009-2014 review period, the Commission likewise did not have 
occasion to address this issue in the 2015 Index Review.
---------------------------------------------------------------------------

    17. First, the purpose of indexing is to allow the indexed rate to 
keep pace with industry-wide cost changes,\30\ not to reflect 
alterations to the Commission's Opinion No. 154-B cost-of-service 
methodology.\31\ Although the Commission uses the Opinion No. 154-B 
methodology cost data on page 700 for purposes of the five-year review, 
changes to the Opinion No. 154-B methodology itself are distinct from 
the annual changes to the pipeline costs that are input into the 
Opinion No. 154-B methodology. Where the Commission modifies an Opinion 
No. 154-B cost-of-service policy used to measure recoverable costs 
midway through the five-year review period, the Opinion No. 154-B cost 
of service reported on page 700 for the first and last years of the 
period will reflect different sets of policies. Just as a business must 
account for changes to its accounting policies when comparing its costs 
over two different periods, we must make a similar adjustment to the 
reported page 700 data here to derive an ``apples-to-apples'' 
comparison of pipeline cost changes. By contrast, comparing data 
reported under different sets of policies will produce a less accurate 
measure of normal industry-wide cost changes.
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    \30\ Order No. 561, FERC Stats. & Regs. ] 30,985 at 30,948, 
30,950. Capital costs such as income taxes are among the industry-
wide costs that the index is designed to measure. E.g., 2015 Index 
Review, 153 FERC ] 61,312 at P 17.
    \31\ In 2015, the Commission adopted page 700 because it 
included actual total cost-of-service data reflecting the costs 
recoverable under the Opinion No. 154-B methodology. 2015 Index 
Review, 153 FERC ] 61,312 at P 13. We reaffirm that using page 700 
data remains a superior means of measuring those recoverable costs 
as compared to the prior methodology from which the Commission 
departed in the 2015 Index Review. Id. PP 12-16. For example, the 
Opinion No. 154-B methodology reflected on page 700 more 
appropriately addresses capital costs. Id. PP 14-15 & nn.29-30. 
However, the purpose of the index is to address changes to those 
recoverable costs, not changes to what the Commission deems 
recoverable, such as the complete elimination of a particular cost 
category such as the MLP income tax allowance.
---------------------------------------------------------------------------

    18. Second, although we recognize that in the 2018 Income Tax 
Policy Statement the Commission stated that it would ``incorporate the 
effects of the post-United Airlines' policy changes on industry-wide 
oil pipeline costs in the 2020 five-year review of the oil pipeline 
index level,'' \32\ we conclude that the index is not an appropriate 
mechanism for incorporating the post-United Airlines' policy changes. 
The index allows for incremental rate adjustments to enable pipelines 
to recover normal cost changes in future years. It is not a true-up 
designed to remedy prior over- or under-recoveries in pre-existing 
rates resulting from cost-of-service policy changes during the prior 
five-year period. Accordingly, we find that it would be improper to 
address any double recovery via the index.
---------------------------------------------------------------------------

    \32\ 2018 Income Tax Policy Statement, 162 FERC ] 61,227 at P 
46.
---------------------------------------------------------------------------

    19. Third, it is not clear that the double recovery of MLP 
pipelines' income tax costs was ever incorporated into the index. 
Before the Commission updated its calculation of the index in the 2015 
Index Review to use page 700 data, the Kahn Methodology used net 
carrier property as a proxy for capital costs and income taxes.\33\ 
This proxy did not reflect changes in the Commission's Opinion No. 154-
B methodology, including changes to the Commission's income tax 
policy.\34\ As a result, the Commission's prior policies permitting MLP 
pipelines to recover a partial \35\ or full \36\ income tax allowance 
were never directly incorporated into

[[Page 9451]]

the index.\37\ Because no prior index calculation incorporated the 
policies allowing MLP pipelines to recover an index tax allowance, it 
is not necessary to reflect the policy change denying those pipelines 
an income tax allowance in the calculation here.
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    \33\ 2015 Index Review, 153 FERC ] 61,312 at P 14 (citing Order 
No. 561-A, FERC Stats & Regs. ] 31,000 at 31,096, 31,098).
    \34\ Net carrier property measures changes to the book value of 
the pipeline's asset base but does not incorporate changes to the 
costs of financing the asset base, such as ROE. As the Commission 
explained in the 2015 Index Review, the relationship between net 
carrier property and income tax costs is attenuated because income 
taxes are dependent upon the pipeline's ROE, not merely the size of 
the pipeline's asset base. 2015 Index Review, 153 FERC ] 61,312 at P 
14.
    \35\ Under the Commission's Lakehead policy from 1995 to 2005, 
partnership entities like MLP pipelines could recover an income tax 
allowance for income attributable to corporate partners, but not for 
income attributable to individuals or other non-corporate partners. 
See Lakehead Pipe Line Co., L.P., Opinion No. 397, 71 FERC ] 61,338 
(1995), reh'g denied, Opinion No. 397-A, 75 FERC ] 61,181, at 
61,594-99 (1996).
    \36\ In 2005, the Commission departed from the Lakehead policy 
and issued a policy statement announcing that it would permit 
partnership entities to recover an income tax allowance for income 
attributable to all partners regardless of the partner's corporate 
form, to the extent that the partner had an actual or potential 
income tax liability on that income. Inquiry Regarding Income Tax 
Allowances, 111 FERC ] 61,139, at P 32 (2005).
    \37\ MLP pipelines therefore would not have benefitted from 
these policies unless they established an initial cost-based rate 
under 18 CFR 342.2(a) of the Commission's regulations or changed an 
existing rate pursuant to the cost-of-service methodology under 18 
CFR 342.4(a) while these policies were in effect. 18 CFR 342.2(a), 
342.4(a).
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    20. Accordingly, we adopt Designated Carriers' proposal to adjust 
the historical page 700 data for 2014 to remove the effects of the 
Income Tax Policy Change for all pipelines that were MLPs in 2014, 
including those that later converted to a business form (such as a C-
Corporation) eligible to recover an income tax allowance. This approach 
is broader than AOPL's more limited proposal to adjust the data for 
only those pipelines that were MLPs in 2014 and that continued to be 
MLPs for the remainder of the 2014-2019 period. Because the 
Commission's revised income tax allowance policy applies equally to all 
MLP pipelines,\38\ we conclude that it is appropriate to make these 
adjustments for all pipelines that were MLPs in 2014, regardless of 
subsequent changes in corporate form. By applying these adjustments to 
all pipelines subject to the Income Tax Policy Change, we will ensure 
that the entirety of the page 700 data reflects the same MLP income tax 
allowance policy for both 2014 and 2019. Furthermore, those pipelines 
that converted from the MLP form to the corporate form incurred 
increased tax costs as a result of the change in business form. This 
cost change, just like any other cost change, should be reflected in 
the index.\39\
---------------------------------------------------------------------------

    \38\ See 2018 Income Tax Policy Statement, 162 FERC ] 61,227 at 
PP 45-46.
    \39\ As the Commission has explained, investors in MLP pipelines 
and C-Corporation pipelines incur an investor-level income tax cost 
that is reflected in the pipeline's rate of return. SFPP, L.P., 
Opinion No. 511-C, 162 FERC ] 61,228, at PP 22-24 (2018), order on 
reh'g and compliance, Opinion No. 511-D, 166 FERC ] 61,142, at PP 
10-11 (2019), aff'd, SFPP, L.P. v. FERC, 967 F.3d 788, 795-97 (D.C. 
Cir. 2020). However, unlike MLPs, corporations incur an additional 
corporate income tax liability prior to the distributions to 
investors. See Opinion No. 511-C, 162 FERC ] 61,228 at PP 22 n.44, 
25 n.53.
---------------------------------------------------------------------------

B. Statistical Data Trimming

1. Comments
    21. AOPL argues that the Commission should calculate the index 
level by trimming the data set to the middle 80%.\40\ AOPL asserts that 
absent errors in the data, it is preferable to use more data points 
because this makes the measurement of industry-wide cost changes more 
precise.\41\ AOPL contends that using the middle 50% in this proceeding 
would go beyond excluding statistical outliers by removing valuable 
data from the analysis, resulting in a less accurate measurement of 
industry cost changes.\42\
---------------------------------------------------------------------------

    \40\ AOPL Initial Comments at 17-24; AOPL Reply Comments at 7-9.
    \41\ AOPL Initial Comments at 18 (quoting Shehadeh Initial Decl. 
at 23); AOPL Reply Comments at 9.
    \42\ AOPL Initial Comments at 19. Trimming the data set to the 
middle 50% would exclude 80 of the 160 pipelines in the data set, 
whereas trimming to the middle 80% would exclude 32 pipelines.
---------------------------------------------------------------------------

    22. In addition, AOPL maintains that considerations the Commission 
has previously found to support trimming the data set to the middle 50% 
should not control here. It states that whereas the Commission found in 
Order No. 561 that data reporting errors supported restricting the 
analysis to the middle 50%, subsequent improvements in reporting 
accuracy obviated these concerns.\43\ Furthermore, AOPL states that 
contrary to the Commission's finding in the 2015 Index Review, the fact 
that pipelines in the middle 80% are further removed from the median 
does not support excluding their cost data unless that data is 
anomalous or spurious.\44\ Designated Carriers, Kinder Morgan, and EIC 
support AOPL's proposal to rely solely upon the middle 80%.\45\
---------------------------------------------------------------------------

    \43\ AOPL Initial Comments at 21-22 (citing AOPL I, 83 F.3d at 
1433).
    \44\ Id. at 23 (citing AOPL II, 281 F.3d at 245-46).
    \45\ Designated Carriers Initial Comments at 7; Kinder Morgan 
Initial Comments at 3; EIC Comments at 7-8, 17.
---------------------------------------------------------------------------

    23. Shippers oppose use of the middle 80% and argue that the record 
does not provide a sufficient basis for departing from the Commission's 
practice in the 2015 and 2010 Index Reviews of relying solely upon the 
middle 50%.\46\ Shippers cite the Commission's findings in the 2015 and 
2010 Index Reviews that using the middle 50% provides a simple and 
effective method of excluding outlying data from the sample and 
minimizes the need to analyze individual pipeline data. Here, Shippers 
argue that the middle 80% contains outlying data and that AOPL did not 
undertake a company-by-company review of the incremental data included 
in the middle 80% to prove otherwise.\47\ Joint Commenters also contend 
that the middle 80% is more dispersed than the middle 50% in this 
proceeding and the middle 80% in prior index reviews, indicating that 
it contains cost changes that are not representative of typical 
experience.\48\ Moreover, Shippers assert that it is unnecessary to use 
the middle 80% in this proceeding to obtain a representative sample of 
industry cost changes because the middle 50% contains a greater 
percentage of barrel-miles subject to the index (82%) than in the 2015 
Index Review (56%) or the 2010 Index Review (76%).\49\
---------------------------------------------------------------------------

    \46\ Joint Commenters Initial Comments at 15-16; Joint 
Commenters Reply Comments at 5-7; Liquids Shippers Reply Comments at 
17; CAPP Reply Comments at 15-16.
    \47\ Joint Commenters Reply Comments at 10 (citing Brattle Group 
Report at 13-20); Brattle Group Report at 22; Liquids Shippers Reply 
Comments at 19-21 (citing Crowe Reply Aff. at 4-5).
    \48\ Joint Commenters Reply Comments, Brattle Group Report at 
17-20.
    \49\ Joint Commenters Reply Comments at 7-8; Liquids Shippers 
Reply Comments at 26.
---------------------------------------------------------------------------

    24. Shippers further argue that AOPL's arguments for using the 
middle 80% are unavailing and inconsistent with the Commission's 
findings in the 2015 Index Review.\50\ Joint Commenters maintain that 
the Commission has previously rejected the argument that using the 
middle 50% will bias the index calculation downwards.\51\ Liquids 
Shippers state that AOPL incorrectly argues that the sole purpose of 
statistical data trimming is to remove inaccurate data and statistical 
outliers. According to Liquids Shippers, data trimming also serves to 
exclude data that, while accurate, fails to represent normal industry 
cost experience.\52\
---------------------------------------------------------------------------

    \50\ Joint Commenters Reply Comments at 9-11 (quoting 2015 Index 
Review, 153 FERC ] 61,312 at P 42 n.80) (citing 2015 Index Review, 
153 FERC ] 61,312 at P 43); Liquids Shippers Reply Comments at 23-25 
(citing 2015 Index Review, 153 FERC ] 61,312 at PP 40, 43).
    \51\ Joint Commenters Reply Comments, Brattle Report at PP 46-48 
(citing 2015 Index Review, 153 FERC ] 61,312 at P 43; Order No. 561-
A, FERC Stats. & Regs. ] 31,000 at 31,098).
    \52\ Liquids Shippers Reply Comments at 22-23 (citing Order No. 
561-A, FERC Stats. & Regs. ] 31,000 at 31,097).
---------------------------------------------------------------------------

2. Commission Determination
    25. Based upon our review of the instant record, we calculate the 
index level by trimming the data set to the middle 80%. We recognize 
that this is a departure from the Commission's practice in the 2015 and 
2010 Index Reviews of trimming the data set to the middle 50%.\53\ An 
agency may change its position in light of experience or further 
analysis so long as it articulates a satisfactory explanation for its 
new position.\54\ Thus, notwithstanding the

[[Page 9452]]

Commission's determinations in the 2015 and 2010 Index Reviews, the 
Commission ``retain[s] a substantial measure of freedom to refine, 
reformulate, and even reverse [its] precedents in the light of new 
insights'' \55\ if it describes good reasons for the new policy.\56\ In 
the NOI, the Commission requested comments that address whether the 
Commission should continue to trim the data set to the middle 50% or 
adopt an alternative approach to data trimming, including using the 
middle 80%.\57\ Based upon our review of the resulting record, we 
conclude that using the middle 80% is appropriate for this index 
review.
---------------------------------------------------------------------------

    \53\ 2015 Index Review, 153 FERC ] 61,312 at PP 42-44; 2010 
Index Review, 133 FERC ] 61,228 at PP 60-63.
    \54\ E.g., Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 
2125-26 (2016) (``Agencies are free to change their existing 
policies so long as they provide a reasoned explanation for the 
change. . . . But the agency must at least display awareness that it 
is changing position and show that there are good reasons for the 
new policy.'') (internal quotation mark and citations omitted); New 
England Power Generators Ass'n, Inc. v. FERC, 879 F.3d 1192, 1201 
(D.C. Cir. 2018) (``So long as any change is reasonably explained, 
it is not arbitrary and capricious for an agency to change its mind 
in light of experience . . . or further analysis or other factors 
indicating that the agency's earlier decision should be altered or 
abandoned.'' (citing FCC v. Fox Television Studios, 556 U.S. 502, 
514-16 (2009)); Defenders of Wildlife v. Zinke, 856 F.2d 1248, 1262 
(9th Cir. 2017).
    \55\ Davila-Bardales v. INS, 27 F.3d 1, 5 (1st Cir. 1994) 
(citing Rust v. Sullivan, 500 U.S. 173, 186-87 (1991); Motor 
Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 
42 (1983)).
    \56\ FCC v. Fox Television Studios, Inc., 556 U.S. at 515; see 
also id. (explaining that an agency ``need not demonstrate to a 
court's satisfaction that the reasons for the new policy are better 
than the reasons for the old one; it suffices that the new policy is 
permissible under the statute, that there are good reasons for it, 
and that the agency believes it to be better'') (emphasis in 
original).
    \57\ NOI, 171 FERC ] 61,239 at P 9 (citing 2005 Index Review, 
114 FERC ] 61,293).
---------------------------------------------------------------------------

    26. Three primary considerations support using the middle 80% 
instead of the middle 50% in this proceeding. First, we find it is 
appropriate to consider more data in measuring industry-wide cost 
changes rather than less. The Kahn Methodology derives the index level 
by computing the central tendency of a statistically trimmed data 
sample. As a general matter, considering a broader sample of data 
should enhance the Commission's calculation of the central tendency of 
industry cost experience. In this proceeding, using the middle 50% 
would exclude 48 pipelines \58\ from the Commission's review of 
industry-wide cost changes over the 2014-2019 period. We are reluctant 
to discard this additional data.
---------------------------------------------------------------------------

    \58\ Shehadeh Initial Decl. at 26.
---------------------------------------------------------------------------

    27. Second, we find in this proceeding that ``normal'' cost changes 
are best defined by using the inclusive data sample embodied in the 
middle 80%. Prematurely discarding data prior to determining the 
central tendency could skew the index such that it does not actually 
reflect industry-wide trends. By using this inclusive data sample, the 
Commission is able to accurately identify the central tendency of 
industry-wide cost changes that reflects the ``normal'' cost changes 
recoverable by the index.\59\ Moreover, even if the middle 80% (or, for 
that matter, the middle 50%) includes relatively high cost changes at 
its upper bound, the index average will be significantly below that 
upper bound and will not allow pipelines to recover such extraordinary 
costs.\60\ Rather, the index will reflect the central tendency of the 
industry-wide data, which, by definition, represents normal industry-
wide costs. Absent a compelling showing that including data from the 
middle 80% distorts our measurement of the industry-wide central 
tendency, we are inclined to consider this more comprehensive data set.
---------------------------------------------------------------------------

    \59\ The definition of idiosyncratic data can vary from review 
to review. In any given five-year review period, an historically 
high level of cost change (due to, e.g., new regulatory 
requirements) may be widely experienced by pipelines across the 
industry and, accordingly, will be reflected in the central tendency 
of the industry-wide data and thus identified as a ``normal'' cost 
change. On the other hand, if during a different five-year review 
period, only a small number of pipelines experience that same level 
of cost change, then the cost change will be idiosyncratic and will 
differ significantly from the central tendency of the industry-wide 
data. Generally, the best method of identifying normal and 
idiosyncratic costs is to consider an inclusive and broadly 
representative data set such as the middle 80% and to compare those 
costs to the central tendency of that data set.
    \60\ Likewise, if the lower bound of the middle 80% includes 
pipelines with cost changes that are below industry norms, the index 
average will significantly exceed this lower bound.
---------------------------------------------------------------------------

    28. Third, along similar lines, we emphasize that mere generalized 
concerns about outlying or unrepresentative data do not justify 
excluding the experiences of pipelines in the incremental 30% (i.e., 
those pipelines that are included in the middle 80% but not the middle 
50%) from our review of industry cost changes. Unlike in prior index 
reviews, the record in this proceeding does not contain sufficient 
evidence that pipelines in the incremental 30% experienced anomalous 
cost changes that would skew the index. In the 2015 and 2010 Index 
Reviews, commenters presented detailed analyses demonstrating that the 
incremental 30% contained anomalous cost changes resulting from factors 
not broadly shared across the industry that would materially distort 
the index calculation.\61\ The record here does not contain a 
comparably detailed analysis of the incremental 30%. Although Joint 
Commenters identify 7 pipelines (out of 48) with anomalous cost changes 
in the incremental 30%, removing those pipelines from the sample would 
only marginally affect the central tendency of the middle 80%.\62\ 
Furthermore, the record contains no evidence that the cost experiences 
of the remaining 41 pipelines similarly diverged from industry 
norms.\63\ Finally, the mere presence of pipelines with anomalous cost 
experiences in a data sample is not sufficient reason to use an 
alternative sample. The Commission recognized in the 2015 and 2010 
Index Reviews that the middle 50% likely includes pipelines with 
idiosyncratic cost experiences, such as rate base expansions.\64\ 
Accordingly, this record does not justify discarding the additional 
data in the incremental 30% via statistical data trimming to the middle 
50%.\65\
---------------------------------------------------------------------------

    \61\ For instance, commenters proposing various manual data 
trimming methodologies demonstrated that the middle 80% included 
pipelines whose cost changes resulted from idiosyncratic 
circumstances such as major rate base expansions or increases in net 
plant. See 2015 Index Review, 153 FERC ] 61,312 at PP 20-29; 2010 
Index Review, 133 FERC ] 61,228 at PP 34-55.
    \62\ When these pipelines are removed from the data set, the 
mean of the middle 80% declines from 1.46% to 1.29%, while the 
median and weighted mean remain nearly unchanged. This reduces the 
composite central tendency of the middle 80% only marginally, from 
0.78% to 0.72%. Compare Attachment A, Ex. 1, with id., Ex. 6. 
Furthermore, even this limited reduction may be exaggerated because 
it results in part from reducing the overall number of pipelines in 
the sample, which would tend to lower the mean of the sample. 
Additionally, because four of the seven removed pipelines are 
located below the median, it is unsurprising that excluding them 
from the middle 80% would reduce the mean.
    \63\ In using the middle 80% in this proceeding, we observe that 
the index level established herein is nonetheless the lowest index 
since the 2000 Index Review. This mitigates concerns that using the 
middle 80% leads to an anomalous index level.
    \64\ See 2015 Index Review, 153 FERC ] 61,312 at P 33 n.60 
(noting that 26 of the 41 pipelines that commenters proposed to 
exclude for reporting ``non-comparable'' data were included in the 
middle 50%); 2010 Index Review, 133 FERC ] 61,228 at P 48 n.25 
(noting that 7 of the 25 pipelines that a commenter proposed to 
exclude for experiencing rate base expansions were included in the 
middle 50%). Just as the presence of those pipelines did not 
preclude use of the middle 50% in earlier reviews, we find that the 
pipelines Joint Commenters identified do not preclude use of the 
middle 80% in this proceeding.
    \65\ AOPL also argues that the Commission should use the middle 
80% because it conforms more closely to a lognormal distribution 
than the middle 50%. AOPL Initial Comments at 20-21, 24 (citing 
Shehadeh Initial Decl. at 24); AOPL Reply Comments at 8-9. Shippers 
contend that this argument is mathematically flawed and unsound. 
Joint Commenters Reply Comments, Brattle Report at PP 50-54; Liquids 
Shippers Reply Comments at 24-25 (quoting Crowe Reply Aff. at 5). 
Given these objections, we do not rely upon this argument in 
reaching our decision to use the middle 80% here. See also 2015 
Index Review, 153 FERC ] 61,312 at P 43 (rejecting this same 
argument).
---------------------------------------------------------------------------

    29. Shippers' arguments for a contrary result are unavailing. 
Notwithstanding that the middle 80% is more dispersed than in prior 
reviews, the record contains no evidence addressing

[[Page 9453]]

whether the more dispersed cost changes in the incremental 30% resulted 
from pipeline-specific factors rather than from broadly shared 
circumstances representative of ordinary pipeline operations. 
Furthermore, Shippers' own evidence demonstrates the dispersion is 
primarily just a few pipelines at the top of the middle 80%. Although 
it may be possible that analyses of the middle 80% in this proceeding 
similar to those provided in prior index reviews would have raised 
similar concerns about considering the middle 80%, no commenter 
presented such a comprehensive analysis. In the absence of a more 
detailed showing, we prefer to use a larger sample, representing a 
broader array of cost experience, in determining the data set's central 
tendency.
    30. We are likewise unpersuaded by Shippers' reliance upon the 
Commission's findings in the 2015 and 2010 Index Reviews that the 
middle 80% includes pipelines further removed from the median and that 
using the middle 50% provides a more effective method of excluding 
outlying data. As discussed above, we have reconsidered our prior 
findings and now conclude that based upon the record in this 
proceeding, the benefits of considering the additional data in the 
middle 80% outweigh concerns about introducing anomalous data that 
could bias the index calculation.
    31. We also find unpersuasive Shippers' argument that it is 
unnecessary to use the middle 80% to obtain a representative sample of 
industry cost data. We acknowledge that the middle 50% represents a 
greater percentage of barrel-miles subject to the index than in 2015 or 
2010. However, we find that on this record, it is preferable to 
consider additional data that more fully reflects the diversity of 
industry cost experience than the middle 50%.
    32. Similarly, we disagree with Shippers' assertion that using the 
middle 80% here would result in an index that encompasses extraordinary 
cost changes.\66\ As discussed above, the Kahn Methodology determines 
the index level using the central tendency of the trimmed data sample, 
and does not set the index at the sample's upper or lower bounds. Thus, 
using the middle 80% will not allow pipelines at the top or bottom of 
the sample to recover their particular cost changes, which by 
definition would diverge from the experience of pipelines closer to the 
central tendency. Instead, this approach only ensures that those 
pipelines' cost experiences are reflected in calculating the data set's 
central tendency. As discussed above, we find that considering a wide 
spectrum of industry experience will aid the Commission in calculating 
a central tendency that better represents normal industry-wide cost 
changes.
---------------------------------------------------------------------------

    \66\ See Order No. 561-A, FERC Stats. & Regs. ] 31,000 at 31,097 
(rejecting request to adopt index ``sufficiently high and generous 
to encompass even the most extraordinary costs'' because such an 
index ``would provide windfalls to many oil pipelines by allowing 
rate changes substantially above cost changes'').
---------------------------------------------------------------------------

C. Liquids Shippers' Proposal To Calculate the Composite Measure of 
Central Tendency Using the Weighted Median

1. Comments
    33. As discussed above, the Kahn Methodology calculates the median, 
mean, and weighted mean of the data set and averages the results to 
calculate a composite measure of central tendency. Liquids Shippers 
argue that the weighted mean of the data set in this proceeding accords 
undue weight to two pipelines, Colonial and Enbridge Energy, L.P. 
Liquids Shippers allege that these pipelines are substantial outliers 
in terms of barrel-miles and cost changes \67\ and that both reported 
inaccurate page 700 data for 2014 and 2019.\68\ Because the weighted 
mean accords significant weight to these pipelines, Liquids Shippers 
state that using it to calculate the composite measure of central 
tendency will skew the index level upwards and fail to track normal 
industry-wide cost changes.\69\
---------------------------------------------------------------------------

    \67\ Liquids Shippers Initial Comments at 13-15. For instance, 
Liquids Shippers state that Colonial and Enbridge comprise 40% of 
the total barrel-miles for all of the 160 pipelines in the data set. 
Id. In addition, Liquids Shippers claim that Colonial reported a 
higher unit cost change over the 2014-2019 period than 69 of the 80 
pipelines included in the middle 50% and Enbridge reported a higher 
cost change than 47 of those pipelines. Id. at 15.
    \68\ Specifically, Liquids Shippers claim that Colonial reported 
an inaccurate capital structure in both 2014 and 2019 and that 
Enbridge's reported ROEs are inconsistent with Commission policy. 
Id. at 17-19.
    \69\ Id. at 16-19.
---------------------------------------------------------------------------

    34. To remedy this issue, Liquids Shippers propose to replace the 
weighted mean in the index calculation with the median of the barrel-
mile weighted cost changes in the middle 50% (weighted median),\70\ as 
calculated by their witness Elizabeth H. Crowe. Liquids Shippers 
contend that the Commission has recognized that the median is the 
preferred statistical measure of central tendency where the data 
distribution is highly skewed.\71\ Thus, Liquids Shippers argue that 
using the weighted median is a statistically appropriate method of 
ameliorating the undue influence that Colonial and Enbridge exert upon 
the index calculation.\72\ Alternatively, if the Commission decides not 
to replace the weighted mean with the weighted median, Liquids Shippers 
propose reducing the weighting afforded to the weighted mean in the 
Kahn Methodology from 33.3% to 20% or 10%.\73\
---------------------------------------------------------------------------

    \70\ The standard median identifies the cost change for which 
the same number of pipelines have a smaller cost change and a larger 
cost change. By contrast, the weighted median identifies the cost 
change for which the same share of barrel-miles (rather than the 
number of pipelines) is accounted for by the pipelines below and 
above the selected median.
    \71\ Liquids Shippers Initial Comments at 19-20 (quoting Order 
No. 561-A, FERC Stats. & Regs. ] 31,000 at 31,097).
    \72\ Id. at 20.
    \73\ Id. at 20 n.45; Crowe Initial Affidavit at 8-9.
---------------------------------------------------------------------------

    35. Pipelines oppose this proposal and argue that Liquids Shippers 
have not justified modifying the Kahn Methodology to exclude the 
weighted mean. Pipelines disagree with Liquids Shippers' claim that the 
weighted mean affords excessive weight to Colonial or Enbridge. Rather, 
Pipelines assert that averaging the weighted mean with the median and 
unweighted mean ensures that larger pipelines receive appropriate 
weighting in the index calculation, consistent with indexing's aim to 
measure cost changes on an industry-wide basis. Pipelines also assert 
that neither Colonial nor Enbridge is an outlier because both pipelines 
are included in the middle 50% of the data set. In addition, Pipelines 
maintain that Liquids Shippers' allegations regarding Colonial's and 
Enbridge's page 700 inputs are both irrelevant and outside the scope of 
the five-year review. Finally, Pipelines contend that Liquids Shippers' 
calculation of the weighted median is methodologically flawed and would 
distort the index by affording undue weight to smaller pipelines in the 
data set.\74\ Colonial filed separate reply comments echoing these 
arguments and urging the Commission to disregard Liquids Shippers' 
claims regarding its page 700.\75\
---------------------------------------------------------------------------

    \74\ AOPL Reply Comments at 22-27; Designated Carriers Reply 
Comments at 6-13.
    \75\ Colonial Reply Comments at 3-11.
---------------------------------------------------------------------------

2. Commission Determination
    36. We decline to adopt Liquids Shippers' proposal to replace the 
weighted mean with the weighted median. First, removing the weighted 
mean from the index calculation would contravene longstanding 
Commission practice and Dr. Kahn's testimony in the rulemaking 
proceeding that established

[[Page 9454]]

the indexing regime. In proposing to average the weighted mean with the 
median and unweighted mean to derive the composite central tendency, 
Dr. Kahn explained that each of these measures ``captured a significant 
aspect of the composite results from an industry perspective.'' \76\ 
The Commission credited Dr. Kahn's testimony and adopted this approach 
to calculating the composite central tendency in that proceeding and in 
all subsequent five-year reviews. As discussed below, we find that 
Liquids Shippers' arguments do not provide an adequate basis for 
departing from this consistent practice.
---------------------------------------------------------------------------

    \76\ Testimony of Dr. Alfred E. Kahn, Docket No. RM93-11-000, at 
9 (filed Aug. 12, 1993).
---------------------------------------------------------------------------

    37. Second, we reject as unpersuasive Liquids Shippers' claim that 
the Commission should replace the weighted mean merely because it 
provides greater weight to larger pipelines like Colonial and 
Enbridge.\77\ The index strives to track cost changes on an industry-
wide basis among pipelines of all sizes. To this end, the Kahn 
Methodology strikes a balance between large and small pipelines by 
determining the central tendency of the cost data using two measures 
that do not take pipeline size into account (the median and the mean) 
together with the weighted mean, which weights each pipeline's cost 
change by its transported volumes. Including the weighted mean in this 
analysis ensures that the cost-change calculation takes sufficient 
account of pipeline size so that ``minor pipelines do not skew'' the 
result.\78\ Thus, the fact that the weighted mean may accord additional 
weight to larger pipelines in this data set is fully consistent with 
its role in the index calculation. Removing it from the analysis as 
Liquids Shippers propose would upset the balance between large and 
small pipelines that the Kahn Methodology achieves. For this reason, we 
likewise reject Liquids Shippers' alternative proposal to reduce the 
weighting of the weighted mean in the calculation from 33.3% to 20% or 
10%.
---------------------------------------------------------------------------

    \77\ The Commission has previously recognized that large 
pipelines like Colonial can exert significant influence upon the 
weighted mean. 2015 Index Review, 153 FERC ] 61,312 at P 24 n.49 
(explaining that ``[b]ecause Colonial is a large pipeline, it 
heavily influences the weighted average in the Kahn Methodology'').
    \78\ AOPL II, 281 F.3d at 241. Although Order No. 561-A 
recognized that the median is often the preferred statistical 
measure of central tendency where the distribution is highly skewed, 
the Commission made this observation in affirming the use of 
statistical data trimming to derive a median sample of the overall 
data set rather than in the context of using the median to determine 
the data set's central tendency. See Order No. 561-A, FERC Stats. & 
Regs. ] 31,000 at 31,096-97. In that proceeding and in each 
subsequent index review, the Commission has consistently calculated 
the composite measure of central tendency by averaging the median, 
mean, and weighted mean.
---------------------------------------------------------------------------

    38. Third, Ms. Crowe's calculation of the weighted median is 
methodologically flawed. AOPL's witness Dr. Shehadeh testifies that the 
established statistically appropriate method for calculating the 
weighted median, as applied to pipeline cost changes, is to identify 
the cost change in the data set for which the same share of barrel-
miles (rather than the same number of pipelines) is accounted for by 
the pipelines below and above the selected median.\79\ Shehadeh Reply 
Decl. at 11 n.17 (citing Thomas H. Cormen, Introduction to Algorithms 
194 (2009); 6 F.Y. Edgeworth, On Observations Relating to Several 
Quantities 279-85 (1887) (The weighted median may be defined as 
follows:
---------------------------------------------------------------------------

    \79\ Shehadeh Reply Decl. at 11.
    [GRAPHIC] [TIFF OMITTED] TR16FE21.153
    
This value is appropriately derived by ordering the pipelines by cost-
change percentage, computing each pipeline's share of total barrel-
miles, and measuring the cumulative share of total barrel-miles 
represented as each pipeline is included in the sample.\80\ The 
pipeline whose share of total barrel-miles causes the cumulative share 
to reach 50% represents the data set's weighted median.\81\
---------------------------------------------------------------------------

    \80\ For example, consider a set of numbers 3, 4, 6, 10, where 
each number is weighted 1, 2, 3, and 5, respectively. In this 
scenario, the weighted median of the data set would equal 6, because 
including 6 in the set increases the cumulative weighting to 50%. 
(1+2+3)/(1+2+3+5) = 6/11 = 54.55%. By contrast, the standard median 
would be 5, which equals the average of the second and third numbers 
of the set.
    \81\ Dr. Shehadeh correctly performs this calculation using 
Liquids Shippers' data set and derives a weighted median cost change 
of 0.68%, as reported by Enbridge. Shehadeh Reply Decl., App. B, Ex. 
1.
---------------------------------------------------------------------------

    39. Ms. Crowe, however, performed a different calculation by 
identifying the median weighted barrel-mile cost-change percentage and 
dividing that figure by the average of those pipelines' 2014 barrel-
miles.\82\ This calculation departs from the proper method of 
calculating the weighted median discussed above. Rather than identify 
the pipeline that causes the cumulative share of total-barrel miles 
represented in the sample to reach 50%, Ms. Crowe derives the median 
value of the weighted cost-change percentages for 2019 without regard 
to the barrel-miles represented below and above that cost change.\83\ 
Unlike the Commission's calculation of the standard median and Dr. 
Shehadeh's calculation of the weighted median, Ms. Crowe does not order 
pipelines by cost changes, and instead orders them by cost changes 
times barrel-miles.\84\ Thus, the median of Ms. Crowe's data sample 
does not capture the central tendency of industry-wide cost changes, as 
evidenced by the significant and multidirectional fluctuations above 
and

[[Page 9455]]

below the purported median that follow no discernible pattern.\85\ 
Accordingly, we conclude that Ms. Crowe's calculation does not provide 
a useful measure of central tendency for purposes of calculating the 
index.\86\
---------------------------------------------------------------------------

    \82\ Shehadeh Reply Decl. at 13; see also Crowe Initial Aff., 
App. 6 at Cost Changes Tab. Although Ms. Crowe's testimony on this 
issue was unclear, our understanding of her calculation is as 
follows. First, she identified the pipelines with percentage cost 
changes in the middle 50%. Second, she multiplied each pipeline's 
percentage cost change by its barrel-miles. Third, she arranged the 
pipelines based upon these results from smallest to largest. Fourth, 
she determined the median of this data sample. Because Ms. Crowe's 
sample consists of an even number of pipelines, the median lies at 
the midpoint between two pipelines, Hilcorp Pipeline Company, LLC, 
and BOE Pipeline, LLC. Finally, she divided the median percentage 
cost change by those pipelines' 2014 barrel-miles, which produces a 
final result of -0.57%. See Crowe Initial Aff., App. 3, at Cost 
Changes Tab; Shehadeh Reply Decl. at 10, Figure 1 and App. B, at 
Figure 1--Chart Backup Tab.
    \83\ In essence, Ms. Crowe attempts to calculate the weighted 
median by using a modified version of the formula the Commission 
uses to compute the weighted mean.
    \84\ See Crowe Initial Aff., App. 3 at Cost Changes Tab. Under 
this approach, it is unclear whether the median pipeline of a given 
sample reported (a) relatively high cost changes and low barrel-
miles or (b) relatively low cost changes and high barrel-miles.
    \85\ A small shift in the data sample's median would produce 
significant and multidirectional changes in the calculation's 
result. For instance, a median reflecting the pipeline with the next 
lowest weighted percentage change (Wildcat Liquids Caddo LLC) would 
reduce Ms. Crowe's result from 0.57 to -1.74% (a decrease of over 
200%), whereas a median reflecting the next highest change (reported 
by Wesco Pipeline, LLC) would reduce the result by an even greater 
amount, from -0.57% to -2.28% (a decrease of 400%). These haphazard 
results do not reflect a convergence towards a central tendency of 
industry-wide cost changes.
    \86\ In addition to failing to reflect the central tendency of 
industry-wide cost changes, Ms. Crowe's calculation also improperly 
reduces the weighting attributed to larger pipelines in the data 
set. Because Ms. Crowe orders the pipelines by barrel-mile cost 
change times barrel-miles, a pipeline with high barrel-miles would 
likely only lie near the median of the data sample if it reported 
extremely low cost changes. Thus, Ms. Crowe's methodology would 
nullify the influence of larger pipelines upon the index calculation 
and thereby defeat the purpose of relying upon a weighted measure of 
central tendency. See AOPL II, 281 F.3d at 241 (explaining that the 
weighted mean serves to ensure that ``minor firms do not skew the 
result'').
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    40. Fourth, Liquids Shippers' challenges to Colonial's and 
Enbridge's page 700 data are both misplaced and unavailing on the 
merits. Indexing proceedings are not an appropriate forum for 
challenging specific pipelines' page 700 inputs \87\ and the Commission 
has declined to scrutinize individual pipeline data in prior index 
reviews.\88\ In any event, the record does not support Liquids 
Shippers' claim that Colonial and Enbridge reported outlying cost 
changes. Both pipelines are included in the middle 50% of all pipelines 
in the data set, which indicates that their cost experiences did not 
diverge significantly from industry norms. In fact, as Dr. Shehadeh 
demonstrates, Enbridge's reported cost change represents the correctly 
calculated weighted median of the data sample,\89\ refuting Liquids 
Shippers' contention that it is an outlier in terms of cost changes.
---------------------------------------------------------------------------

    \87\ See AOPL I, 83 F.3d at 1437 (holding that the Commission 
did not err in Order No. 561 by declining to periodically review 
individual pipeline costs and instead requiring shippers to 
challenge individual pipeline rates via protests or complaints); see 
also Calnev Pipe Line L.L.C., 127 FERC ] 61,304, at P 5 (2009) 
(``[T]he Commission has made quite clear that it will not review 
allegations regarding the appropriateness of a pipeline's cost of 
service or the accuracy of its accounting in an index proceeding. 
Such allegations must be included in a complaint once the index-
based filing becomes effective.'' (citing SFPP, L.P., 123 FERC ] 
61,317 (2008); BP W. Coast Prods. LLC v. SFPP, L.P., 121 FERC ] 
61,243 (2007)).
    \88\ 2015 Index Review, 153 FERC ] 61,312 at PP 22-30, 33-39 
(declining to adopt manual data trimming proposals that would have 
required analyzing individual pipeline data); 2010 Index Review, 133 
FERC ] 61,228 at PP 48-55 (same).
    \89\ Shehadeh Reply Decl. at 14; see also supra n.81.
---------------------------------------------------------------------------

D. Liquids Shippers' Proposal To Adopt Standardized ROEs for 2014 and 
2019

1. Comments
    41. Liquids Shippers state that the Commission should replace the 
ROEs that pipelines reported on page 700 for 2014 and 2019 with single, 
standardized figures for both years.\90\ Liquids Shippers contend that 
the data used to calculate the index level should conform to the 
Commission's cost-of-service methodology \91\ and that the reported 
ROEs for 2014 and 2019 are inconsistent with this methodology in two 
respects. First, Liquids Shippers claim that pipelines' reported ROEs 
are self-selected and do not reflect what investors would demand in the 
market.\92\ Second, Liquids Shippers state that if all oil pipeline 
rates were litigated at the same time, absent unusual circumstances, 
the Commission would adopt the same ROE for every pipeline because 
regulated pipelines typically fall within a broad range of average 
risk.\93\ Liquids Shippers assert that the reported ROEs conflict with 
this principle because they vary substantially.\94\
---------------------------------------------------------------------------

    \90\ Liquids Shippers Initial Comments at 21-22.
    \91\ Id. at 21, 25 (citing 2015 Index Review, 153 FERC ] 61,312 
at PP 13, 15).
    \92\ Id. at 21 (citing FPC v. Hope Nat. Gas Co., 320 U.S. 591, 
603 (1944); Bluefield Water Works & Improvement Co. v. Pub. Serv. 
Comm'n of W. Va., 262 U.S. 679, 692-93 (1923); Farmers Union Cent. 
Exch., Inc. v. FERC, 734 F.2d 1486, 1502 (D.C. Cir. 1984)).
    \93\ Id. at 22-23. Liquids Shippers assert that regulated 
pipelines typically face comparable risks and that the Commission 
typically sets oil pipeline ROEs at the median of the proxy group 
results. Id.
    \94\ Id. at 23. For instance, Liquids Shippers state that among 
the 160 pipelines included in the untrimmed data set, reported page 
700 ROEs for 2019 ranged from 0.9% to 22.3%. Id. at 24 (citing Crowe 
Initial Aff. at 9).
---------------------------------------------------------------------------

    42. Liquids Shippers also claim that uncertainty surrounding the 
Commission's oil pipeline ROE policy undermines the reliability of the 
reported ROEs for 2019. They state that the Commission initiated a 
review of its ROE policy in Docket No. PL19-4-000 on March 21, 2019 but 
did not clarify its ROE methodology for oil pipelines until it issued 
the ROE Policy Statement on May 21, 2020.\95\ Because oil pipelines 
were required to submit page 700 cost-of-service data for 2019 in April 
2020, Liquids Shippers allege that pipelines were not certain of the 
Commission's prevailing policy when they reported their 2019 ROEs. In 
support of this claim, Liquids Shippers observe that two pipelines 
submitted updated Form No. 6 filings in July 2020 indicating that the 
page 700 ROEs they filed in April 2020 did not comply with the 
Commission's then-applicable policy relying solely upon the DCF 
model.\96\
---------------------------------------------------------------------------

    \95\ Id. at 25-26 (citing Inquiry Regarding the Commission's 
Policy for Determining Return on Equity, 166 FERC ] 61,207 (2019)). 
As discussed above, the Commission issued a policy statement 
revising its ROE methodology for natural gas and oil pipelines on 
May 21, 2020. ROE Policy Statement, 171 FERC ] 61,155.
    \96\ Id. at 27-28 (citing Crowe Initial Aff., App. 4 at 1-2) 
(referring to updated Form No. 6 filings of Plains Pipeline, LP and 
Rocky Mountain Pipeline System LLC).
---------------------------------------------------------------------------

    43. In light of these concerns, Liquids Shippers urge the 
Commission to replace each pipeline's reported page 700 ROE for 2014 
and 2019 with standardized ROEs for purposes of calculating the index 
level. For 2014, Liquids Shippers propose a standardized ROE of 10.29%, 
which 54 pipelines reported in their 2014 page 700 filings.\97\ For 
2019, Liquids Shippers propose to use the 10.02% ROE that Trial Staff 
has proposed in testimony in an ongoing oil pipeline rate proceeding 
based upon data for the six-month period ending in November 2019.\98\
---------------------------------------------------------------------------

    \97\ Ms. Crowe states that 45 pipelines reported a 10.29% ROE on 
their page 700s for 2014. Crowe Initial Aff. at 11-12. However, as 
shown in Attachment A, Exhibit 7 to this order, the Commission's 
review of Form No. 6 filings submitted in 2016 indicates that 54 
pipelines reported this ROE for 2014 in the column on page 700 for 
prior-year data.
    \98\ Liquids Shippers Initial Comments at 30-31; Crowe Initial 
Aff. at 12 (citing Trial Staff, Direct and Answering Cost-Based Rate 
Testimony of Commission Trial Staff Witness Robert J. Keyton, Docket 
Nos. OR18-7-002 et al. (filed Jan. 14, 2020)).
---------------------------------------------------------------------------

    44. Pipelines oppose Liquids Shippers' proposal and disagree with 
their assertions. AOPL disputes Liquids Shippers' claim that variation 
in the reported page 700 ROEs indicates that this data is unreliable or 
inconsistent with Commission policy.\99\ Pipelines contend, moreover, 
that the Commission found in the 2015 Index Review that statistical 
data trimming is sufficient to remove pipelines with outlying equity 
cost changes from the data set and that Liquids Shippers' arguments do 
not undermine this conclusion.\100\ In addition, AOPL argues that 
Liquids Shippers failed to support their proposed standardized ROEs and 
that adopting their proposal would complicate the five-year review by 
introducing complex cost-of-service ratemaking issues.\101\
---------------------------------------------------------------------------

    \99\ AOPL Reply Comments at 30.
    \100\ Id. at 28 (quoting 2015 Index Review, 153 FERC ] 61,312 at 
P 17); Designated Carriers Reply Comments at 13-14 (same).
    \101\ AOPL Reply Comments at 32.

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[[Page 9456]]

2. Commission Determination
    45. We decline to adopt Liquids Shippers' proposal to replace the 
reported page 700 ROE data for 2014 and 2019 with standardized ROEs. We 
conclude that Liquids Shippers have not adequately demonstrated that 
the reported page 700 ROEs are unreliable or inconsistent with 
Commission policy.
    46. Contrary to Liquids Shippers' contention, the fact that page 
700 ROEs are self-reported does not demonstrate that this data is 
unreliable or fails to capture the returns that investors would demand 
in the market. Rather, one of the primary reasons the Commission 
updated the index calculation to use page 700 data is that this data is 
based upon ``established ratemaking techniques.'' \102\ During the 
2014-2019 period, these techniques included determining ROE using the 
DCF model, which is designed to reflect investors' required returns. 
The instructions on page 700 required pipelines to determine their ROE 
(as well as other page 700 inputs) consistent with this methodology and 
pipelines submitted page 700 under oath and subject to sanction if 
there were purposeful errors in their reported data.\103\ In addition, 
if a pipeline makes any major changes to its application of the Opinion 
No. 154-B methodology in preparing page 700, it must describe such 
changes in a footnote on page 700. Given these facts, we find that 
Liquids Shippers have not adequately demonstrated that the reported 
page 700 ROE data is unreliable merely because pipelines self-
reported.\104\
---------------------------------------------------------------------------

    \102\ 2015 Index Review, 153 FERC ] 61,312 at P 15.
    \103\ See BP W. Coast Prods. LLC v. SFPP, L.P., 121 FERC ] 
61,243, at P 9 (observing that ``pipelines submit their FERC Form 
No. 6 under oath and exposes the pipeline and its employees to civil 
and criminal sanctions if there are purposeful errors in'' applying 
the Commission's existing cost-of-service methodology to develop the 
underlying cost inputs). Furthermore, the Commission calculates the 
index level based upon changes in cost over the applicable review 
period, rather than total costs in a given year. Because the last 
year of any particular review period (e.g., 2014-2019) is the first 
year of the next review period (e.g., 2019-2024), any attempt by 
pipelines to distort the index calculation by reporting inflated 
cost data in the last year of one period would harm their interests 
by establishing a higher cost baseline in the first year of the next 
period.
    \104\ If a shipper determines that a pipeline has reported 
inaccurate data on its page 700, the shipper may file a complaint 
alleging that the pipeline did not properly apply the Opinion No. 
154-B methodology in developing its page 700 cost inputs. See BP W. 
Coast Prods. LLC v. SFPP, L.P., 121 FERC ] 61,243 at P 9 (explaining 
that shippers may file ``a complaint that provides reasonable 
grounds to conclude that the pipeline did not properly apply its 
existing cost-of-service methodology to develop the underlying cost 
inputs used to develop the Page 700 in its annual FERC Form No. 6, 
or the inputs were improperly entered into its accounts or the 
calculation.'').
---------------------------------------------------------------------------

    47. Similarly, variation among page 700 ROEs does not indicate that 
the reported ROE data is unreliable. To the contrary, multiple factors 
can cause the DCF model to yield different results for different 
pipelines. For example, even when analyzing data from the same time 
period, the appropriate proxy group may vary from pipeline to pipeline 
depending upon differences in risk. Liquids Shippers themselves 
acknowledge \105\ that although the Commission typically sets the real 
ROE for oil pipelines at the median of the proxy group results, it may 
set the ROE above or below the median where the record demonstrates 
that the pipeline faces anomalously high or low risks.\106\ 
Accordingly, the fact that pipelines reported different ROEs for the 
same years does not demonstrate that this data is inaccurate or 
inconsistent with Commission policy. Moreover, the Commission explained 
in the 2015 Index Review that to the extent a particular pipeline's per 
barrel-mile equity cost changes departed substantially from industry 
norms, that pipeline would not be among the middle 50% used to 
calculate the index level.\107\ Similarly, such pipelines would not be 
among the middle 80% used to calculate the index level in this 
proceeding. Liquids Shippers provide no basis for altering this 
conclusion.
---------------------------------------------------------------------------

    \105\ See Liquids Shippers Initial Comments at 22-23 (quoting El 
Paso Nat. Gas Co., Opinion No. 528, 145 FERC ] 61,040, at P 592 
(2013)).
    \106\ E.g., BP Pipelines (Alaska) Inc., Opinion No. 502, 123 
FERC ] 61,287, at P 195 (2008) (citing Transcon. Gas Pipe Line 
Corp., Opinion No. 414-A, 84 FERC ] 61,084, at 61,423-24 (1998)), 
order on reh'g and compliance, 125 FERC ] 61,215 (2008), reh'g 
denied, 127 FERC ] 61,317 (2009), aff'd sub nom. Flint Hills Res. 
Alaska, LLC v. FERC, 726 F.3d 881 (D.C. Cir. 2010).
    \107\ 2015 Index Review, 153 FERC ] 61,312 at P 17.
---------------------------------------------------------------------------

    49. We conclude, moreover, that Liquids Shippers have not supported 
their proposed standardized ROEs. For 2014, Liquids Shippers seek to 
replace all pipelines' reported ROEs with an ROE figure that only 29% 
of pipelines reported for that year.\108\ However, Liquids Shippers do 
not demonstrate that this figure accurately measures the investor-
required cost of equity for all pipelines in the data set. Similarly, 
Liquids Shippers do not justify why the Commission should adopt, as the 
2019 ROE for all pipelines in the data set, a figure that a participant 
has proposed in an ongoing hearing on which neither the Presiding Judge 
nor the Commission have opined.\109\ Given that oil pipelines have 
diverse business models and different risk levels, we cannot simply 
assume that any single ROE could reflect the investor-required return 
for all pipelines in the data set.
---------------------------------------------------------------------------

    \108\ Whereas Liquids Shippers state that 45 of 158 pipelines 
filing page 700 for 2014 reported an ROE of 10.29%, the Commission's 
review of Form No. 6 data indicates that 54 of 184 filing pipelines 
reported that particular ROE for 2014. Compare Liquids Shippers 
Initial Comments at 31 with Attachment A, Ex. 7.
    \109\ According to the most recent procedural schedule adopted 
in Docket Nos. OR18-7-002 et al., the initial decision in that 
proceeding is currently scheduled for issuance on May 28, 2021. 
Epsilon Trading, LLC v. Colonial Pipeline Co., Docket No. OR18-7-
002, at Attachment A (June 23, 2020).
---------------------------------------------------------------------------

    50. Finally, we find that adopting Liquids Shippers' proposal would 
undermine indexing's purpose as a simplified and streamlined ratemaking 
regime. Whereas the Kahn Methodology promotes simplification by relying 
upon reported page 700 data, Liquids Shippers' proposal would require 
the Commission, in this proceeding and in future five-year reviews, to 
undertake separate analyses to determine just and reasonable industry-
wide ROEs for the first and last years of the five-year review period. 
Determining a just and reasonable ROE, particularly on an industry-wide 
basis, would be a complex and fact-intensive inquiry that could require 
considerable time and resources to resolve. The Commission explained in 
the NOI that addressing such complex cost-of-service issues would 
improperly complicate and prolong the five-year review process in 
violation of EPAct 1992's mandate for simplified and streamlined 
ratemaking,\110\ and Liquids Shippers have not refuted these concerns.
---------------------------------------------------------------------------

    \110\ NOI, 171 FERC ] 61,239 at P 11.
---------------------------------------------------------------------------

E. CAPP's Argument Regarding Negotiated Rate Contracts

1. Comments
    51. CAPP argues that the Commission should quantify the effects of 
negotiated rate contracts upon oil pipelines' reported costs of equity. 
CAPP states that these contracts typically contain provisions such as 
shipper volume commitments that serve to transfer risk from the 
pipeline to its shippers and that failing to reflect pipelines' reduced 
risks in the page 700 data could improperly inflate the index 
calculation.\111\ CAPP notes that the Commission found in the 2015 
Index Review that the page 700 total cost-of-service would reflect any 
reduction in the pipeline's risk, but argues that the page 700 data in 
this proceeding does not indicate whether this occurred over the 2014-
2019 period.\112\ To provide

[[Page 9457]]

increased transparency, CAPP urges the Commission to consider requiring 
pipelines to provide shippers with the workpapers underlying their page 
700 calculations.\113\ AOPL contends CAPP's claims are unsupported and 
that the Commission has previously rejected this precise argument.\114\
---------------------------------------------------------------------------

    \111\ CAPP Initial Comments at 2-5.
    \112\ Id. at 4 (quoting 2015 Index Review, 153 FERC ] 61,312 at 
P 28).
    \113\ Id. at 5.
    \114\ AOPL Reply Comments at 33-37.
---------------------------------------------------------------------------

2. Commission Determination
    52. We find CAPP's arguments unpersuasive. First, as the Commission 
explained in the 2015 Index Review, ``[t]o the extent that volume 
commitments in [negotiated rate] agreements have reduced the pipeline's 
risk, the page 700 total cost of service would reflect this reduction 
in the embedded costs of equity and costs of debt.'' \115\ These 
effects would tend to reduce pipeline costs and thereby produce a lower 
index level, rendering CAPP's concerns unfounded. Although CAPP 
questions whether the effects of reduced pipeline risk are reflected in 
the page 700 data, it provides no basis for the Commission to conclude 
that the reported data fails to adequately account for pipelines' risks 
in measuring changes in cost of equity and costs of debt.
---------------------------------------------------------------------------

    \115\ 2015 Index Review, 153 FERC ] 61,312 at P 28.
---------------------------------------------------------------------------

    53. Second, to the extent that CAPP requests that the Commission 
review individual pipeline data to evaluate the effects of contract 
rates upon the pipeline's risks, this request is both unsupported and 
misplaced. CAPP has not presented any method for quantifying any 
disparity in the risks pipelines face when using contract rates versus 
non-contract rates. Although CAPP states that the Commission should 
consider requiring pipelines to provide shippers with the workpapers 
underlying their page 700 cost of service calculations, it has not 
explained how these workpapers would aid in identifying differences in 
risk between contract and non-contract rates. Moreover, as CAPP itself 
acknowledges, the Commission recently declined to require pipelines to 
provide workpapers \116\ and CAPP has not provided a sufficient basis 
for the Commission to revisit this decision here. More broadly, the 
Kahn Methodology measures changes in barrel-mile costs on a generic, 
industry-wide basis. Thus, in calculating the index level, the 
Commission does not scrutinize the inputs underlying individual 
pipelines' page 700 data. Accordingly, the review that CAPP appears to 
seek would exceed the scope of the five-year index review and conflict 
with streamlined and simplified ratemaking.\117\
---------------------------------------------------------------------------

    \116\ Revisions to Indexing Policies and Page 700 of FERC Form 
No. 6, 170 FERC ] 61,134, at P 6 (2020).
    \117\ As discussed above, if a shipper determines that a 
particular pipeline's page 700 inputs do not accord with the 
Commission's existing Opinion No. 154-B methodology, it may file a 
complaint to that effect with the Commission. BP W. Coast Prods. LLC 
v. SFPP, L.P., 121 FERC ] 61,243 at P 9.
---------------------------------------------------------------------------

F. Pipeline Costs Resulting From Integrity Management Regulations and 
Other Developments

1. Comments
    54. AOPL states that oil pipelines have experienced significant 
cost increases due to pipeline safety and integrity measures and that 
these costs are likely to increase in the future.\118\ AOPL submits a 
declaration from William R. Byrd identifying new and continuing 
regulatory obligations related to pipeline integrity as well as other 
factors affecting pipeline costs, such as expenditures related to 
security and cybersecurity, opposition to pipeline infrastructure, and 
the COVID-19 pandemic.\119\ Mr. Byrd also describes anticipated 
regulatory requirements that he states will increase pipelines' 
obligations and compliance costs in the future.\120\ AOPL maintains 
that pipelines' ability to undertake future expansions and adopt 
environmental, safety, and security measures in compliance with 
applicable regulatory requirements depends upon the Commission adopting 
an index level that allows pipelines to recover expected future cost 
increases.\121\
---------------------------------------------------------------------------

    \118\ AOPL Initial Comments at 36-39; Declaration of William R. 
Byrd, P.E. at 21.
    \119\ Byrd Declaration at 7-17.
    \120\ Id. at 17-20.
    \121\ AOPL Initial Comments at 40 (quoting 2005 Index Review, 
114 FERC ] 61,293 at P 63).
---------------------------------------------------------------------------

    55. Other commenters make similar assertions. PST states that 
pipeline safety requirements have increased over the last five years 
and that setting the index level too low could reduce pipelines' 
incentives to invest in safety measures.\122\ EIC echoes AOPL's 
statements regarding increasing costs and explains that pipelines' 
ability to invest in building and operating facilities depends upon 
ready access to capital markets and a predictable regulatory 
environment that reduces investment risks. Thus, EIC asserts that the 
Commission should be mindful that an insufficiently high index level 
could impair pipelines' ability to attract investment.\123\
---------------------------------------------------------------------------

    \122\ PST Comments at 1-2.
    \123\ EIC Comments at 7, 11-16.
---------------------------------------------------------------------------

    56. PHMSA filed comments describing safety rules it has enacted 
since the 2015 Index Review as well as several pending rulemakings 
that, if adopted, would impose additional costs upon pipeline 
operators. Although it takes no position on the specific index level 
the Commission should adopt, PHMSA states that the index should reflect 
the costs that its existing and future regulations impose upon pipeline 
operators.\124\
---------------------------------------------------------------------------

    \124\ PHMSA Reply Comments at 1-4.
---------------------------------------------------------------------------

    57. Shippers reject these arguments and contend that the Commission 
has previously found that future costs are speculative and 
inappropriate for inclusion in the index calculation.\125\ Liquids 
Shippers argue that costs related to safety or integrity measures 
incurred during the 2014-2019 period should be reflected in the page 
700 data.\126\ In addition, Joint Commenters and Liquids Shippers 
contend that if safety or integrity-related costs are not captured in 
this index calculation, they will be reflected in future index reviews 
and pipelines may seek to recover those costs in the interim through 
cost-of-service rate filings, where appropriate.\127\
---------------------------------------------------------------------------

    \125\ Joint Commenters Reply Comments at 19-20 (quoting 2010 
Index Review, 133 FERC ] 61,312 at P 125); Liquids Shippers Reply 
Comments at 31-32 (same); CAPP Initial Comments at 2.
    \126\ Liquids Shippers Reply Comments at 33.
    \127\ Joint Commenters Reply Comments at 20; Liquids Shippers 
Reply Comments at 33.
---------------------------------------------------------------------------

2. Commission Determination
    58. We decline to alter our calculation of the index level based 
upon the arguments concerning safety or integrity-related costs. To the 
extent that new or continuing regulatory requirements caused pipelines' 
barrel-mile costs to increase during the 2014-2019 period, those cost 
changes would be reflected in the page 700 data.\128\ We also decline 
to adjust the index calculation based upon projections of future costs 
or other developments occurring after the conclusion of the 2014-2019 
period. As the Commission has previously explained, future cost 
projections related to regulatory changes are speculative and 
inappropriate for inclusion in the index.\129\ Additionally, because 
the Kahn Methodology only considers cost changes incurred during

[[Page 9458]]

the prior five years, regulatory changes and other developments 
occurring after the 2014-2019 period concluded on December 31, 2019, 
are beyond the scope of this index review.\130\ To the extent that such 
developments affect barrel-mile costs going forward, the Commission 
will incorporate those cost changes as reflected in page 700 cost-of-
service data in future index calculations.
---------------------------------------------------------------------------

    \128\ If such obligations result in a substantial divergence 
between a pipeline's actual costs and the rate resulting from 
application of the index, the pipeline may file to change its rate 
using the Commission's cost-of-service methodology pursuant to 18 
CFR 342.4(a) of the Commission's regulations. 18 CFR 342.4(a); see 
also Order No. 561, FERC Stats. & Regs. ] 30,985 at 30,957 
(explaining that ``such circumstances as increased safety or 
environmental regulations may justify the use of a cost-of-service 
methodology'').
    \129\ 2010 Index Review, 133 FERC ] 61,228 at P 125.
    \130\ Cost changes incurred during the 2019-2024 period as a 
result of integrity management and other regulatory obligations will 
be addressed in the 2025 index review.
---------------------------------------------------------------------------

G. Treatment of Mergers in the Data Set

1. Comments
    59. To account for mergers that occurred during the study period, 
the Kahn Methodology adds the separate costs the pipelines reported on 
Form No. 6 in the first year of the data set (e.g., 2014) and compares 
this sum to the newly combined company's costs in the last year of the 
data set (e.g., 2019).\131\ The Commission employs a similar process 
for addressing divestitures, adding the separate costs that the 
pipelines reported on Form No. 6 in the last year of the data set and 
comparing this sum to the previously combined company's costs in the 
first year of the data set. Joint Commenters and AOPL each propose to 
adjust the data set to account for merger activity that they claim 
occurred during the 2014-2019 period but was not reflected in the data 
underlying the Commission's proposal in the NOI.
---------------------------------------------------------------------------

    \131\ 2015 Index Review, 153 FERC ] 61,312 at P 38. The 
Commission has explained that without this step, the absorbed 
pipeline's cost data would be needlessly discarded. Id.
---------------------------------------------------------------------------

    60. Joint Commenters propose to account for six additional mergers: 
(1) Plains Southcap Inc. and Plains Pipeline, LP; (2) Red River Crude 
Pipeline LLC and Enterprise Crude Pipeline LLC; (3) Regency Liquids 
Pipeline LLC and Lone Start NGL Pipeline LP; (4) Independent Trading & 
Transportation Company I, L.L.C. and Hiland Crude, LLC; (5) Phillips 66 
Pipeline LLC and Phillips 66 Carrier LLC; and (6) Excel Pipeline LLC 
and Sunoco Pipeline L.P.\132\ AOPL proposes to reflect the Excel-Sunoco 
merger and two additional mergers: (i) Mid-Valley Pipeline Company and 
Energy Transfer Crude Oil Company LLC (Energy Transfer Crude); and (ii) 
The Premcor Pipeline Co. and Valero Partners Lucas, LLC (Valero 
Lucas).\133\ Joint Commenters disagree with AOPL's proposals to reflect 
mergers between Mid-Valley-Energy Transfer Crude and Premcor-Valero 
Lucas.\134\
---------------------------------------------------------------------------

    \132\ Joint Commenters Reply Comments, Brattle Group Report, 
Attachment D at 2, 4-7 (Data Merger Analysis).
    \133\ Shehadeh Initial Decl., Ex. A1 (Companies Consolidated to 
Adjust for Mergers, Acquisitions, and Changes in Corporate Form 
2014-2019).
    \134\ Joint Commenters Reply Comments, Brattle Group Report at 
48-50.
---------------------------------------------------------------------------

2. Commission Determination
    61. We will adjust the data set to reflect mergers between: (1) 
Plains Southcap Inc. and Plains Pipeline, LP; (2) Red River Crude 
Pipeline LLC and Enterprise Crude Pipeline LLC; (3) Regency Liquids 
Pipeline LLC and Lone Star NGL Pipeline LP; (4) Independent Trading & 
Transportation Company I, L.L.C. and Hiland Crude, LLC; (5) Phillips 66 
Pipeline LLC and Phillips 66 Carrier LLC; and (6) Excel Pipeline LLC 
and Sunoco Pipeline L.P.\135\ We have verified through a review of Form 
No. 6 data that these mergers took place during the 2014-2019 period 
and will therefore revise the data set to combine these pipelines' 
costs in 2019 as appropriate.
---------------------------------------------------------------------------

    \135\ The Commission identified the Excel Pipeline LLC-Sunoco 
Pipeline L.P. merger in the NOI proposal but did not combine their 
data for 2019.
---------------------------------------------------------------------------

    62. We decline, however, to adopt AOPL's proposal to reflect 
mergers between Mid-Valley-Energy Transfer Crude and Premcor-Valero 
Lucas. We find that the record does not support adjusting the Form No. 
6 data to reflect these mergers. For instance, a review of the total 
miles owned at year end does not indicate that any transfer of assets 
took place between these companies during the review period.\136\ The 
Commission's review of other Form No. 6 data likewise did not confirm 
whether these mergers in fact took place.\137\
---------------------------------------------------------------------------

    \136\ Joint Commenters Reply Comments, Brattle Report at 49-50.
    \137\ For example, despite its alleged merger with Energy 
Transfer Partners, Mid-Valley continued filing Form No. 6 in its own 
name for each year of the review period through 2019.
---------------------------------------------------------------------------

IV. 2021-2026 Oil Pipeline Index

    63. Based upon the foregoing, we calculate the index level used to 
determine annual changes to oil pipeline rate ceilings for the five-
year period beginning July 1, 2021 as follows. First, as shown in 
Attachment A (Exhibit 2) we remove those pipelines that did not provide 
Form No. 6, page 700 data or provided incomplete data. Second, as shown 
in Attachment A (Exhibit 5), we consider the data on Form No. 6, page 
700 to calculate each pipeline's cost change on a per barrel-mile basis 
over the prior five-year period (e.g., the years 2014-2019 in this 
proceeding). Third, to remove statistical outliers and spurious or 
unrepresentative data, we trim the data set to those pipelines in the 
middle 80% of cost changes. Fourth, as shown in Attachment A (Exhibit 
5), we calculate three measures of the middle 80%'s central tendency: 
The median, the mean, and a weighted mean. Fifth, we calculate a 
composite by taking a simple average of those three measures of central 
tendency, as shown in Attachment A (Exhibit 1). Finally, we compare 
this composite to the value of the PPI-FG index data over the same 
period (0.52% in this proceeding) and set the index level at PPI-FG 
plus (or minus) this differential. Using these calculations, we 
establish an index level of PPI-FG+0.78% for the five-year period 
beginning July 1, 2021.

The Commission Orders

    Consistent with the discussion in this order, the Commission 
determines that the appropriate oil pipeline index level for the next 
five years, July 1, 2021 through June 30, 2026, is PPI-FG+0.78%.

    By the Commission. Commissioner Glick is dissenting with a 
separate statement attached. Commissioner Clements is not 
participating.

    Issued: December 17, 2020.
Kimberly D. Bose,
Secretary.

Federal Energy Regulatory Commission

Five-Year Review of Oil Pipeline Index

Glick, Commissioner, Dissenting
    1. Today's order is a complete abdication of the Commission's 
responsibility to protect oil pipeline customers. It overthrows well-
established Commission policy and goes back on explicit promises we 
made to customers just a few years ago. As a result, the Commission is 
handing oil pipelines a multi-billion-dollar windfall for which 
customers are left to pick up the tab. I dissent strongly from those 
unreasoned and indefensible determinations.
* * * * *
    2. A little background is necessary to appreciate just how 
seriously the Commission has fallen down on the job. In the Energy 
Policy Act of 1992, Congress directed the Commission to promulgate a 
rule to simplify its ratemaking methodology for oil pipelines.\1\ 
Shortly thereafter, the Commission issued Order No. 561, which adopted 
an indexing methodology as part of the Commission's approach for 
regulating

[[Page 9459]]

oil pipeline rates.\2\ Under that approach, if an oil pipeline 
increases its rates by less than the annual ceiling established by the 
index, the pipeline does not need to justify those rates through a 
cost-of-service filing.\3\ The majority of oil pipelines under the 
Commission's jurisdiction use this index to demonstrate that their rate 
increases are just and reasonable.
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    \1\ Energy Policy Act of 1992, Public Law 102-486, 1801(a) (Oct. 
24, 1992) (codified at 42 U.S.C. 7172 note (2006)).
    \2\ Revisions to Oil Pipeline Reguls. Pursuant to Energy Pol'y 
Act of 1992, Order No. 561, FERC Stats. & Regs. ] 30,985, at 30,955 
(1993) (cross-referenced at 65 FERC ] 61,109), order on reh'g, Order 
No. 561-A, FERC Stats. & Regs. ] 31,000 (1994) (cross-referenced at 
68 FERC ] 61,138), aff'd sub nom. Ass'n of Oil Pipe Lines v. FERC, 
83 F.3d 1424 (D.C. Cir. 1996).
    \3\ At least absent a protest to the update. See Order No. 561, 
FERC Stats. & Regs. ] 30,985 at 30,947.
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    3. Following Order No. 561, the Commission updates the index every 
five years to ensure that it represents a reasonable measure of the 
annual change in a typical oil pipeline's cost of service. To set the 
annual index, the Commission calculates each jurisdictional pipeline's 
change in its cost-of-service over the previous five-year period--we 
call this oil pipelines' ``cost change data.'' The Commission then uses 
that data to determine an appropriate adjustment to the Producer Price 
Index for Finished Goods (PPI-FG) established by the U.S. Department of 
Labor.\4\ To avoid outliers or other anomalous, unrepresentative cost 
data, the Commission has historically relied on only the cost change 
data for the middle 50% of pipelines when updating the index--that is, 
it excludes data from the 25% of pipelines with the lowest cost changes 
and the data from the 25% of pipelines with the highest.\5\
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    \4\ Five-Year Rev. of the Oil Pipeline Index, 173 FERC ] 61,245, 
at P 5 (2020) (2020 Index Review). The resulting index level is 
expressed as the PPI-FG plus or minus a value that corresponds to 
the cost change data adjustment.
    \5\ This practice of excluding the top and bottom 25% was part 
of Dr. Alfred Kahn's original proposal that the Commission adopted 
in 1994. Ass'n of Oil Pipe Lines v. FERC, 876 F.3d 336, 340 (D.C. 
Cir. 2017) (noting that in 1994 Dr. Kahn ``omitted from his analysis 
the pipelines within the upper and lower 25 percent of the cost 
spectrum in order to exclude statistical outliers and incomplete or 
questionable data'').
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    4. In June of this year, the Commission issued a notice of inquiry 
that commenced its five-year update to the index. In that notice, the 
Commission proposed an index level of PPI-FG+0.09, based on our 
historical practice of relying on the middle 50% of cost change 
data.\6\ Today's order tosses that historical practice aside and 
establishes an index level that is nearly ten times higher at PPI-
FG+0.78.\7\ That order of magnitude increase is largely the result of a 
pair of unreasoned, illogical and unsupported changes that lack any 
meaningful support in the record before us. I'll discuss them in turn.
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    \6\ Five-Year Rev. of the Oil Pipeline Index, 171 FERC ] 61,239, 
at P 9 (2020).
    \7\ 2020 Index Review, 173 FERC ] 61,245 at P 2.
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    5. The Commission's first major mistake is to abandon its well-
established practice of updating the index using the cost change data 
from the middle 50% of oil pipelines. As noted, in order to weed out 
potential anomalous, unrepresentative cost data and ensure that the 
cost change data reflects the experience of a typical pipeline, the 
Commission's established practice is to ``trim'' the data down to the 
middle 50% of cost changes. The Commission has explained that relying 
only on those central values best approximates the operations of a 
typical pipeline because it prevents the Commission from relying on 
unrepresentative cost changes, such as a one-time increase in rate 
base, plant retirement, significant expansions or acquisitions, or 
localized changes in supply and demand.\8\
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    \8\ Five-Year Rev. of Oil Pricing Index, 133 FERC ] 61,228, at P 
61 (2010) (citing Order No. 561-A, FERC Stats. & Regs. ] 31,000 at 
31,097) (2010 Index Review); Five-Year Rev. of Oil Pipeline Index, 
153 FERC ] 61,312, at P 24 (2015) (2015 Index Review).
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    6. Today's order abandons that approach and instead uses the data 
from the middle 80% of pipelines.\9\ That change dramatically increases 
the likelihood that the updated index will reflect anomalous data that 
does not shed light on the cost changes experienced by a typical 
pipeline, which, in practice, skews the index upwards. Relying upon 
those relative outliers is particularly inappropriate here since the 
middle 50% of pipelines corresponds to a much larger percentage of the 
total barrel-miles shipped over the last five years than in previous 
index updates.\10\ In other words, the middle 50% already corresponds 
to a significantly larger percentage of total oil transportation 
service provided than in previous index updates, which would seem to 
undermine any need to expand the data set.
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    \9\ 2020 Index Review, 173 FERC ] 61,245 at P 25.
    \10\ The middle 50% of this data set contains 82% of total 
barrel-miles subject to the index while, in 2015 and 2010, the 
middle 50% contained only 56% and 76% of total barrel-miles, 
respectively. Id. P 23.
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    7. The Commission's justification for abandoning the 50% approach 
consists of nothing more than variations on the theme that more data is 
better.\11\ But, as with most things in life, quality is more important 
than quantity. Including more cost change data is not necessarily an 
improvement when there is good reason to believe that the incremental 
data is made up of outliers whose experience is less representative of 
a typical oil pipeline with a normal cost structure. As noted, the 
purpose of the index is to approximate a typical oil pipeline's change 
in cost--an exercise that does not benefit from including cost change 
data from pipelines that are, by definition, unrepresentative of the 
average pipeline.\12\ And that is exactly why the Commission has 
consistently rejected replacing the 50% approach with the 80% approach 
adopted in today's order.\13\ In addition, the Commission chastises 
shippers for not arguing that every pipeline whose cost change data 
would have been excluded using the middle 50% was an outlier.\14\ As an 
initial matter, the shippers did provide illustrative data explaining 
why seven of those pipelines' cost change data was not representative, 
which you might think would suffice to support the Commission 
continuing its historical practice.\15\ In any case, the burden to show 
that the index is reasonable is on the Commission, and it cannot be 
carried simply by arguing that the shippers should have done more.
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    \11\ Id. PP 26-29.
    \12\ See 2015 Index Review, 153 FERC ] 61,312 at P 43 (``[B]y 
definition, costs at the top (or bottom) of the middle 80 percent 
deviate significantly from the cost experience of other pipelines. 
To the extent that the middle 80 percent data conforms to a 
lognormal distribution, outlying cost increases per barrel-mile will 
not be offset by similarly outlying cost decreases. Thus, using the 
middle 80 percent would skew the index upward based upon these 
outlying cost increases, which is contrary to the objective of the 
index to reflect normal industry-wide cost changes.''); 2010 Index 
Review, 133 FERC ] 61,228 at P 63 (``[T]he use of the middle 50 
minimizes the risk of including pipelines that experienced either 
large increases or decreases in cost (or errant data) that may be 
included in an 80 percent sample, while still capturing changes from 
a broad spectrum of the pipeline industry.'').
    \13\ See 2015 Index Review, 153 FERC ] 61,312 at PP 42-44; 2010 
Index Review, 133 FERC ] 61,228 at PP 60-63.
    \14\ 2020 Index Review, 173 FERC ] 61,245 at P 28.
    \15\ Id.
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    8. The Commission's second major mistake is to break its promise to 
protect ratepayers following the U.S. Court of Appeals for the District 
of Columbia Circuit's decision in United Airlines v. FERC,\16\ which 
struck down the Commission's practice of allowing Master Limited 
Partnerships (MLPs) to double recover their income tax cost.\17\ As a 
result of that decision, MLPs may no longer recover an income tax

[[Page 9460]]

allowance in their cost of service.\18\ Following United Airlines, in 
2018, the Commission required natural gas pipelines to immediately 
eliminate that double recovery,\19\ but declined to require something 
similar for oil pipelines, promising, quite explicitly, that it would 
address the issue when it next updated the index.\20\
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    \16\ United Airlines, Inc. v. FERC, 827 F.3d 122 (D.C. Cir. 
2016) (finding that the Commission permitted a double recovery of 
income tax costs by allowing an MLP to recover both an income tax 
allowance and a return on equity determined pursuant to the 
discounted cash flow methodology, which already reflects income tax 
costs).
    \17\ Inquiry Regarding the Commission's Pol. for Recovery of 
Income Tax Costs, 162 FERC ] 61,227 (2018 Income Tax Policy 
Statement), reh'g denied, 164 FERC ] 61,030 (2018).
    \18\ Id. P 2.
    \19\ Interstate & Intrastate Nat. Gas Pipelines; Rate Changes 
Relating to Fed. Income Tax Rate, 162 FERC ] 61,226 (2018).
    \20\ The Commission's statement is worth reading in whole: 
``When oil pipelines file Form No. 6, page 700 on April 18, 2018, 
they must report an income tax allowance consistent with United 
Airlines and the Commission's subsequent holdings denying an MLP an 
income tax allowance. Based upon page 700 data, the Commission will 
incorporate the effects of the post-United Airlines' policy changes 
(as well as the Tax Cuts and Jobs Act of 2017) on industry-wide oil 
pipeline costs in the 2020 five-year review of the oil pipeline 
index level. In this way the Commission will ensure that the 
industry-wide reduced costs are incorporated on an industry-wide 
basis as part of the index review.'' 2018 Income Tax Policy 
Statement, 162 FERC ] 61,227 at P 46.
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    9. So much for that. In today's order, the Commission goes back on 
its word and allows any oil pipeline that was an MLP in 2014 to 
retroactively remove its income tax allowance from its 2014 cost-of-
service data.\21\ That change juices the data to make it look like oil 
pipeline costs increased by more than they actually did between 2014 
and 2019, thereby leading to a higher index value. And, as if that 
weren't bad enough, today's order also allows any pipeline that 
transitioned from an MLP to a C-Corporation, thereby regaining the 
right to an income tax allowance, to remove the income tax allowance 
from their 2014 numbers.\22\ The result is, you guessed it, another 
increase in the cost change data, a higher index level, and more 
expensive rates for customers.
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    \21\ 2020 Index Review, 173 FERC ] 61,245 at P 16.
    \22\ Id. P 20.
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    10. Nothing in today's order justifies that result. The Commission 
summarily concludes that the index update is not an appropriate vehicle 
for incorporating the post-United Airlines' policy changes.\23\ That 
proposition is hardly self-evident, especially given that all five 
then-Commissioners felt differently just two years ago.\24\ In any 
case, the fact of the matter is that tax costs are real costs,\25\ 
meaning that oil pipelines' costs in the past five years have changed 
as a result of the United Airlines decision. Finally, reneging on our 
promise in the 2018 Income Tax Policy Statement perpetuates the effects 
of the double recovery gravy train that the court invalidated in United 
Airlines. That is simply indefensible.
---------------------------------------------------------------------------

    \23\ Id. P 18.
    \24\ 2018 Income Tax Policy Statement, 162 FERC ] 61,227 at P 
46.
    \25\ Ask anyone who pays their taxes.
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* * * * *
    11. The Commission's actions today hand oil pipelines what will 
amount to a multi-billion-dollar windfall over the next five years. 
Calling these decisions arbitrary and capricious or unreasoned would 
let the Commission off easy. They represent a complete abdication of 
our statutory responsibility to protect consumers--the companies and 
individuals who will be stuck paying those additional billions of 
dollars to the oil pipelines. Although our responsibilities under the 
Interstate Commerce Act don't always get the same attention from the 
public as some of our other proceedings, today's order illustrates the 
tremendous financial consequences that they can have for everyday 
customers. I hope that proceedings like today's lead interested parties 
everywhere to more closely scrutinize the Commission's oil orders so 
that these multi-billion-dollar handouts do not become a matter of 
course.
    For these reasons, I respectfully dissent.

Richard Glick,

Commissioner.

[FR Doc. 2021-03120 Filed 2-12-21; 8:45 am]
BILLING CODE 6717-01-P

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