Federal Register / Vol. 72, No. 45 / Thursday, March 8, 2007 / Notices 10513 

free at (866) 208–3676, or for TTY, 

contact (202) 502–8659. 

m. Individuals desiring to be included 

on the Commission’s mailing list should 

so indicate by writing to the Secretary 

of the Commission. 

n. Comments, Protests, or Motions to 

Intervene—Anyone may submit 

comments, a protest, or a motion to 

intervene in accordance with the 

requirements of Rules of Practice and 

Procedure, 18 CFR 385.210, .211, .214. 

In determining the appropriate action to 

take, the Commission will consider all 

protests or other comments filed, but 

only those who file a motion to 

intervene in accordance with the 

Commission’s Rules may become a 

party to the proceeding. Any comments, 

protests, or motions to intervene must 

be received on or before the specified 

comment date for the particular 

application. 

o. Filing and Service of Responsive 

Documents—Any filings must bear in 

all capital letters the title 

‘‘COMMENTS’’, 

‘‘RECOMMENDATIONS FOR TERMS 

AND CONDITIONS’’, ‘‘PROTEST’’, OR 

‘‘MOTION TO INTERVENE’’, as 

applicable, and the Project Number of 

the particular application to which the 

filing refers. A copy of any motion to 

intervene must also be served upon each 

representative of the Applicant 

specified in the particular application. 

p. Agency Comments—Federal, state, 

and local agencies are invited to file 

comments on the described 

applications. A copy of the applications 

may be obtained by agencies directly 

from the Applicant. If an agency does 

not file comments within the time 

specified for filing comments, it will be 

presumed to have no comments. One 

copy of an agency’s comments must also 

be sent to the Applicant’s 

representatives. 

Magalie R. Salas, 

Secretary. 

[FR Doc. E7–3968 Filed 3–7–07; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

Notice of Application Accepted for 

Filing, Soliciting Motions To Intervene 

and Protests, Ready for Environmental 

Analysis, and Soliciting Comments, 

Recommendations, Terms and 

Conditions, and Fishway Prescriptions 

March 2, 2007. 

Take notice that the following 

hydroelectric application has been filed 

with the Commission and is available 

for public inspection. 

a. Application Type: Amendment of 

license to upgrade the installed 

capacity. 

b. Project No.: 2778–035. 

c. Date Filed: August 17, 2006. 

d. Applicant: Idaho Power Company. 

e. Name of Project: Shoshone Falls. 

f. Location: The project is located on 

the on the Snake River in Jerome and 

Twin Falls Counties, Idaho. Part of the 

project occupies lands owned by the 

Bureau of Land Management. 

g. Filed Pursuant to: Federal Power 

Act, 16 U.S.C. 791a–825r. 

h. Applicant Contact: Tom R. Saldin, 

Senior Vice President, Idaho Power Co., 

P.O. Box 70, Boise, Idaho 83707. Tel: 

(208) 388–2550. Also, Mr. Nathan F. 

Gardiner, Idaho Power Co., P.O. Box 70, 

Boise, Idaho 83707. Tel: (208) 388–2975. 

i. FERC Contact: Any questions on 

this notice should be addressed to 

Vedula Sarma at (202) 502–6190 or 

vedula.sarma@ferc.gov. 

j. Deadline for filing motions to 

intervene and protests, comments, 

recommendations, preliminary terms 

and conditions, and preliminary 

fishway prescriptions is 60 days from 

the issuance of this notice; reply 

comments are due 105 days from the 

issuance date of this notice. All 

documents (original and eight copies) 

should be filed with: Secretary, Federal 

Energy Regulatory Commission, 888 

First Street, NE., Washington, DC 20426. 

The Commission’s Rules of Practice 

require all intervenors filing documents 

with the Commission to serve a copy of 

that document on each person on the 

official service list for the project. 

Further, if an intervenor files comments 

or documents with the Commission 

relating to the merits of an issue that 

may affect the responsibilities of a 

particular resource agency, they must 

also serve a copy of the document on 

that resource agency. 

Motions to intervene, protests, 

comments, recommendations, terms and 

conditions, and fishway prescriptions 

may be filed electronically via the 

Internet in lieu of paper. The 

Commission strongly encourages 

electronic filings. See 18 CFR 

385.2001(a)(1)(iii) and the instructions 

on the Commission’s Web site (http:// 

www.ferc.gov) under the ‘‘e-Filing’’ link. 

k. This application has been accepted 

for filing and is ready for further 

environmental analysis. On February 

27, 2007, Commission staff issued a 

draft environmental assessment to 

facilitate the generation of further 

analysis on the proposed project 

expansion. Idaho Power Company (IPC) 

proposes to demolish a section of the 

Shoshone Falls powerhouse built in 

1907 and containing two generating 

units 0.4 MW, and 0.6 MW and replace 

it with a new powerhouse containing a 

50 MW generating unit. The project’s 

authorized installed capacity would 

increase from 11,875 kilowatts (kW) to 

60,875 kW, and the hydraulic capacity 

would increase from 815 cubic feet per 

second (cfs) to 4,815 cfs. The IPC also 

requests an extension of the license term 

for the project from 30 to 50 years. 

l. A copy of the application is 

available for review at the Commission 

in the Public Reference Room or may be 

viewed on the Commission’s Web site at 

http://www.ferc.gov using the 

‘‘eLibrary’’ link. Enter the docket 

number excluding the last three digits in 

the docket number field to access the 

document. For assistance, contact FERC 

Online Support at 

FERCOnlineSupport@ferc.gov or tollfree at 1–866–208–3676, or for TTY, 

202–502–8659. A copy is also available 

for inspection and reproduction at the 

address in item h above. 

Register online at http:// 

www.ferc.gov/esubscribenow.htm to be 

notified via e-mail of new filings and 

issuances related to this or other 

pending projects. For assistance, contact 

FERC Online Support. 

m. Anyone may submit comments, a 

protest, or a motion to intervene in 

accordance with the requirements of 

Rules of Practice and Procedure, 18 CFR 

385.210, .211, .214. In determining the 

appropriate action to take, the 

Commission will consider all protests or 

other comments filed, but only those 

who file a motion to intervene in 

accordance with the Commission’s 

Rules may become a party to the 

proceeding. Any comments, protests, or 

motions to intervene must be received 

on or before the specified comment date 

for the particular application. 

All filings must (1) Bear in all capital 

letters the title ‘‘PROTEST’’, ‘‘MOTION 

TO INTERVENE’’, ‘‘COMMENTS,’’

‘‘REPLY COMMENTS,’’

‘‘RECOMMENDATIONS,’’ ‘‘ TERMS 

AND CONDITIONS,’’ or ‘‘ FISHWAY 

PRESCRIPTIONS;’’ (2) set forth in the 

heading the name of the applicant and 

the project number of the application to 

which the filing responds; (3) furnish 

the name, address, and telephone 

number of the person protesting or 

intervening; and (4) otherwise comply 

with the requirements of 18 CFR 

385.2001 through 385.2005. All 

comments, recommendations, terms and 

conditions or prescriptions must set 

forth their evidentiary basis and 

otherwise comply with the requirements 

of 18 CFR 4.34(b). All comments, 

recommendations, terms and conditions 


sroberts on PROD1PC70 with NOTICES
10514 Federal Register / Vol. 72, No. 45 / Thursday, March 8, 2007 / Notices 

1 112 FERC ¶ 61,292 (2005). 

2Arkla Gathering Service Co., 67 FERC ¶ 61,257, 

at 61,871 (1994), order on reh’g, 69 FERC ¶ 61,280 

(1994), reh’g denied, 70 FERC ¶ 61,079 (1995), 

reconsideration denied, 71 FERC ¶ 61,297 (1995) 

(collectively, Arkla), aff’d in part and reversed in 

part, Conoco Inc. v. FERC, 90 F.3d 536 (D.C. Cir. 

1996) (Conoco). 

3Arkla, 67 FERC at 61,871. 

4Williams Gas Processing-Gulf Coast Co., L.P. v. 

FERC, 373 F.3d 1335 (D.C. Cir. 2004) (Williams Gas 

Processing). 

5The Wellhead Decontrol Act of 1989 removed 

all first sales from Commission jurisdiction. 

6Section 2(6) of the NGA defines ‘‘natural-gas 

company’’ as ‘‘a person engaged in the 

transportation of natural gas in interstate commerce, 

or the sale in interstate commerce of such gas for 

resale.’’

7The Commission first articulated the primary 

function test in Farmland Industries, Inc., 23 FERC 

¶ 61,063 (1983). The Commission subsequently 

modified the test in Amerada Hess Corp., 52 FERC 

¶ 61,268 (1990). 

8Regulation of Natural Gas Pipelines After Partial 

Wellhead Decontrol, Order No. 436, 50 Fed. Reg. 

42,408 (Oct. 18, 1985), FERC Stats. & Regs. ¶ 30,665 

at 31,554 (1985), vacated and remanded, 

Associated Gas Distributors v. FERC, 824 F.2d 981 

(D.C. Cir. 1987), cert. denied, 485 U.S. 1006 (1988), 

readopted on an interim basis, Order No. 500, 52 

FR 30,334 (Aug. 14, 1987), FERC Stats. & Regs. 

¶ 30,761 (1987), remanded, American Gas Ass’n v. 

FERC, 888 F.2d 136 (D.C. Cir. 1989), readopted, 

Order No. 500–H, 54 FR 52,344 (Dec. 21, 1989), 

FERC Stats. & Regs. ¶ 30,867 (1989), reh’g granted 

in part and denied in part, Order No. 500–I, 55 FR 

6,605 (Feb. 26, 1990), FERC Stats. & Regs. ¶ 30,880 

(1990), aff’d in part and remanded in part, 

American Gas Ass’n v. FERC, 912 F.2d 1496 (D.C. 

Cir. 1990), cert. denied, 498 U.S. 1084 (1991). 

or prescriptions should relate to project 

works which are the subject of the 

license amendment. Agencies may 

obtain copies of the application directly 

from the applicant. A copy of any 

protest or motion to intervene must be 

served upon each representative of the 

applicant specified in the particular 

application. A copy of all other filings 

in reference to this application must be 

accompanied by proof of service on all 

persons listed in the service list 

prepared by the Commission in this 

proceeding, in accordance with 18 CFR 

4.34(b) and 385.2010. 

n. An applicant must file no later than 

60 days following the date of issuance 

of this notice of acceptance and ready 

for environmental analysis provided for 

in § 4.34(b)(5)(i): (1) A copy of the water 

quality certification; (2) a copy of the 

request for certification, including proof 

of the date on which the certifying 

agency received the request; or (3) 

evidence of waiver of water quality 

certification. 

Magalie R. Salas, 

Secretary. 

[FR Doc. E7–4122 Filed 3–7–07; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

[Docket No. PL05–10–000] 

Criteria for Reassertion of Jurisdiction 

Over the Gathering Services of Natural 

Gas Company Affiliates 

February 15, 2007. 

AGENCY: Federal Energy Regulatory 

Commission, DOE. 

ACTION: Order Terminating Proceeding 

and Clarifying Policy. 

SUMMARY: The Federal Energy 

Regulatory Commission is terminating 

the instant proceeding. The Commission 

also finds that it may only assert 

jurisdiction over a gathering provider 

affiliated with an interstate pipeline 

when the gatherer has used its market 

power over gathering to benefit the 

pipeline in its performance of 

jurisdictional transportation or sales 

service and that benefit is contrary to 

the Commission’s policies concerning 

jurisdictional service adopted pursuant 

to the NGA. Further, the order clarifies 

that, where the gathering affiliate has 

engaged in the type of conduct 

described above as justifying an 

assertion of jurisdiction, the 

Commission need not also find 

‘‘concerned action’’ between the 

pipeline and its gathering affiliate. 

FOR FURTHER INFORMATION CONTACT: 

Richard Howe, Office of the General 

Counsel, Federal Energy Regulatory 

Commission, 888 First Street, NE., 

Washington, DC 20426. (202) 502–8389. 

SUPPLEMENTARY INFORMATION: 

Before Commissioners: Joseph T. Kelliher, 

Chairman; Suedeen G. Kelly, Marc Spitzer, 

Philip D. Moeller, and Jon Wellinghoff. 

Order Terminating Proceeding and 

Clarifying Policy 

1. In September 2005, the 

Commission issued a Notice of Inquiry 

(NOI) 1 to evaluate possible changes in 

the criteria set forth in Arkla Gathering 

Service Co.2 for determining when the 

Commission may assert Natural Gas Act 

(NGA) jurisdiction over the gathering 

activities of a gathering affiliate of a 

natural gas pipeline to guard against 

abusive practices by the affiliated 

companies. In Arkla, the Commission 

held that gathering affiliates of interstate 

pipelines are generally exempt from the 

Commission’s NGA jurisdiction. 

However, the Commission also held that 

‘‘if an affiliated gatherer acts in concert 

with its pipeline affiliate in connection 

with the transportation of gas in 

interstate commerce and in a manner 

that frustrates the Commission’s 

effective regulation of the interstate 

pipeline, then the Commission may look 

through, or disregard, the separate 

corporate structures and treat the 

pipeline and gatherer as a single 

entity.’’ 3

2. In Williams Gas Processing—Gulf 

Coast Company, L.P. v. FERC,4 the 

United States Court of Appeals for the 

District of Columbia Circuit vacated and 

remanded Commission orders, in which 

the Commission had sought to reassert 

jurisdiction over certain affiliated 

gathering activities under the criteria set 

forth in Arkla. The court held that the 

Commission had not met its own test 

under Arkla for reassertion of 

jurisdiction. In light of the court’s 

holding that the circumstances 

presented by the Williams Gas 

Processing case did not satisfy the Arkla 

test, the Commission determined to 

explore whether that test should be 

modified. To assist this reevaluation of 

the Arkla test, the Commission issued 

the NOI, asking parties to submit 

comments and respond to a number of 

specific questions. After carefully 

reviewing the comments, the 

Commission has determined not to 

change its current policies with respect 

to affiliated gatherers, although we do 

clarify the existing Arkla test. 

I. Statutory and Regulatory Backdrop 

3. Section 1(b) of the NGA gives the 

Commission jurisdiction over (1) 

transportation of natural gas in 

interstate commerce, (2) sales in 

interstate commerce of natural gas for 

resale,5 and ‘‘natural gas companies’’ 6

engaged in such transportation or sales. 

However, section 1(b) exempts 

‘‘gathering of natural gas’’ from 

Commission jurisdiction. The 

Commission uses the ‘‘primary 

function’’ test to determine whether a 

facility is devoted to jurisdictional 

interstate transportation or nonjurisdictional gathering of natural gas.7

Under that test, the Commission relies 

on various physical characteristics of 

the facilities to determine their 

jurisdictional status. 

4. Before Order No. 436,8 interstate 

natural gas pipelines generally did not 

perform transportation-only or 

gathering-only services. Rather, they 

used all their facilities, including any 

gathering facilities they owned, to 

provide a bundled transportation and 

sale for resale service, for which they 

charged a single bundled rate. The 

United States Supreme Court held that 

the gathering exemption did not 

foreclose the Commission from 

reflecting ‘‘the production and gathering 


sroberts on PROD1PC70 with NOTICES