358 Federal Register / Vol. 60, No. 2 / Wednesday, January 4, 1995 / Rules and Regulations

12Order No. 571, mimeo at 34.

13 Id.

14Order No. 571, mimeo at 34.

15Order No. 571, mimeo at 17.

1Market-Based Ratemaking for Oil Pipelines,

Order No. 572, 59 FR 59148 (November 16, 1994),

III Stats. & Regs. ¶ 31,007 (1994).

2Sinclair Oil Corporation’s motion to file a brief

in response to the AOPL’s request for rehearing is

denied.

the pipeline the specifics of the format

to be used to provide such

information.12 Moreover, the

Commission also suggested that the

pipeline could request confidential

treatment of the information it

provides.13

It was the Commission’s intent that

the caveats expressed not be limited to

section 347.1(e)(vi), but rather apply to

all the Part 347 information that would

be provided by pipelines. Therefore, the

regulations will be modified to reflect

that information required by Part 347 of

the regulations, release of which would

violate Section 15(13) of the ICA, must

be provided in a format that will protect

any individual shipper. Moreover, the

general statement in Order No. 571 that

the information provided will be

publicly available unless specific

confidential treatment is sought by the

carrier is still applicable.14

E. Finally, AOPL seeks clarification

regarding the use of new Page 700 of

Form No. 6, in particular the

significance of the statement that this

schedule would ‘‘permit a shipper to

compare the change in a shipper’s

individual rate with the change in the

pipeline’s average company-wide barrelmile rate.’’ 15 AOPL claims such a

comparison appears to tell a shipper

nothing concerning the justness and

reasonableness of an individual rate.

The information reported on Page 700

will show how a pipeline’s average

barrel-mile rate changes from one year

to the next. A shipper can then compare

the yearly percentage change in the

average barrel-mile rate with the yearly

percentage change in the rate it is

charged to determine whether there is a

substantial divergence between the rate

of change in the two figures such as to

warrant a challenge to an indexed rate.

Thus, the Page 700 information alone is

not intended to show what a just and

reasonable rate should be.

The Commission Orders

The request for rehearing and

clarification is granted in part and

denied in part, as reflected in the body

of this order.

List of Subjects in 18 CFR part 347

Pipelines, Reporting and

recordkeeping requirements.

By the Commission.

Lois D. Cashell,

Secretary.

In consideration of the foregoing, Part

347, Chapter I, Title 18, Code of Federal

Regulations, is amended, as set forth

below.

PART 347—OIL PIPELINE

DEPRECIATION STUDIES

1. The authority citation for Part 347

continues to read as follows:

Authority: 42 U.S.C. 7101–7352; 49 U.S.C.

60502; 49 App. U.S.C. 1–85.

2. In § 347.1, paragraph (e)

introductory text and paragraph

(e)(5)(vi) are revised to read as follows:

§ 347.1 Material to support request for

newly established or changed property

account depreciation studies.

* * * * *

(e) Information to be provided. The

information in paragraphs (e)(1) through

(5) of this section must be provided as

justification for depreciation changes.

Modifications, additions, and deletions

to these data elements should be made

to reflect the individual circumstances

of the carrier’s properties and

operations. Any information in

paragraphs (e)(1) through (5) of this

section, the release of which would

violate Section 15(13) of the Interstate

Commerce Act, must be provided in a

format that will protect individual

shippers.

* * * * *

(5) * * *

(vi) A list of shipments and their

associated receipt points, delivery

points, and volumes (in barrels) by type

of product (where applicable) for the

most current year.

* * * * *

[FR Doc. 95–117 Filed 1–3–95; 8:45 am]

BILLING CODE 6717–01–P

18 CFR Part 348

[Docket No. RM94–1–001; Order No. 572–

A]

Market-Based Ratemaking for Oil

Pipelines

Issued December 28, 1994.

AGENCY: Federal Energy Regulatory

Commission.

ACTION: Final rule; Order denying

rehearing.

SUMMARY: The Federal Energy

Regulatory Commission is issuing an

order denying the request for rehearing

of Order No. 572, the final rule adopting

filing requirements and procedures with

respect to an application by an oil

pipeline for a determination that it lacks

significant market power in the markets

in which it proposes to charge marketbased rates. The final rule adopted

procedural rules in order to implement

the Commission’s Order 561 marketbased ratemaking policy.

EFFECTIVE DATE: This final rule is

effective January 1, 1995.

FOR FURTHER INFORMATION CONTACT:

Jeffrey A. Braunstein, Office of the

General Counsel, Federal Energy

Regulatory Commission, 825 North

Capitol Street NE., Washington, DC

20426, (202) 208–2114.

SUPPLEMENTARY INFORMATION: In

addition to publishing the full text of

this document in the Federal Register,

the Commission also provides all

interested persons an opportunity to

inspect or copy the contents of this

document during normal business hours

in Room 3104, 941 North Capitol Street

NE., Washington, DC 20426.

The Commission Issuance Posting

System (CIPS), an electronic bulletin

board service, provides access to the

texts of the formal documents issued by

the Commission. CIPS is available at no

charge to the user and may be accessed

using a personal computer with a

modem by dialing (202) 208–1397. To

access CIPS, set your communications

software to 19200, 14400, 12000, 9600,

7200, 4800, 2400, 1200 or 300 bps, full

duplex, no parity, 8 data bits and 1 stop

bit. The full text of this document will

be available on CIPS for 60 days from

the date of issuance in ASCII and

WordPerfect 5.1 format. After 60 days

the document will be archived, but still

accessible. The complete text on

diskette in Wordperfect format may also

be purchased from the Commission’s

copy contractor, La Dorn Systems

Corporation, also located in Room 3104,

941 North Capitol Street NE.,

Washington, DC 20426.

Order Denying Rehearing

Issued December 28, 1994.

On October 28, 1994, the Federal

Energy Regulatory Commission

(Commission) issued Order No. 572 in

which it adopted procedural rules

governing an oil pipeline’s application

for a Commission finding that the oil

pipeline lacks significant market power

in the relevant markets.1 On November

28, 1994, the Association of Oil Pipe

Lines (AOPL) filed a request for

rehearing of Order No. 572.2 As

discussed below, the Commission

denies the AOPL’s request for rehearing.

In Order No. 561, the Commission

adopted section 342.4(b) of the

regulations, which provides that: ‘‘Until
Federal Register / Vol. 60, No. 2 / Wednesday, January 4, 1995 / Rules and Regulations 359

3Request for rehearing at 3, citing, generally, 1B

Moore’s Federal Practice ¶¶ 0.441–0.448.

4 Id. at 4.

5 Id. at 4, 5. The AOPL notes that it has

challenged Order No. 561 on the legal issue by

filing an appeal in the D.C. Circuit. See AOPL v.

FERC, No. 94–1538 (filed August 5, 1994).

6Texaco v. FPC, 417 U.S. 380 (1974); and Farmers

Union Central Exchange, Inc. v. FERC, 734 F.2d

1486, 1510 (D.C. Cir. 1984).

7 In Order No. 572, the Commission referred to

the Permian Basin Area Rate Cases, 390 U.S. 747

(1988), as support for the proposition that the

Commission may impose a moratorium on filings

for market-based rates except under the application

process. In Permian, the Supreme Court held ‘‘that

the Commission may under §§ 5 and 16 [of the

Natural Gas Act] restrict filings under § 4(d) of

proposed rates higher than those determined by the

Commission to be just and reasonable.’’ (at 780) It

is true as the AOPL submits that Permian involved

a temporary moratorium and the Supreme Court

declined to prescribe the limitations of the

Commission’s authority to proscribe moratoria

upon filings in other circumstances. Here, however,

the Commission’s moratorium is also limited in that

once an oil pipeline makes a showing that it lacks

significant market power in the relevant markets, it

is no longer prevented from charging market-based

rates in those markets. In addition, the Supreme

Court’s main concern was with circumstances of

changing costs as opposed to the apparent stability

of production costs in Permian. Of course, under

Order No. 561, the oil pipelines may file for costof-service rates.

8The AOPL further submits that, with respect to

a rate filing, the Commission does not have the

statutory authority to require at the threshold the

kind of filing required by Order No. 572. As

discussed in Order No. 571–A, issued

contemporaneously with this order, the

Commission concludes here that it has the authority

under Section 12(1) of the ICA to adopt filing

requirements at the threshold for rate filings, such

as for market-based rates. Of course, here, the

Commission has adopted the waiver approach

rather than relying on Section 12(1) in connection

with a rate filing.

9Farmers Union Central Exchange, Inc. v. FERC,

734 F.2d 1486,1510 (D.C. Cir. 1984).

10Section 1802(a) of the Act of 1992.

the carrier establishes that it lacks

market power, these rates will be subject

to the applicable ceiling level under

§ 342.3.’’ Order No. 572 built on that

requirement by requiring an oil pipeline

to file an application for a market power

determination rather than a rate filing

under the ICA. Only after the

Commission concludes that the oil

pipeline lacks significant market power

in the markets in which it proposes to

charge market-based rates may it file

market-based rates.

The Commission rejected as collateral

attacks on Order No. 561 the argument

that it had overstepped its authority

under the ICA by precluding an oil

pipeline from charging market-based

rates until the Commission has

determined that the oil pipeline lacks

significant market power in the relevant

markets.

The AOPL maintains that its objection

does not constitute a collateral attack on

Order No. 561 because its objection does

not fall within the definition of

collateral attack as ‘‘an improper

challenge to a prior judgement

attempted through a proceeding that has

an independent purpose.’’ 3 It avers that

it did not object to Order No. 561’s

framework. Rather, it claims that it

raised its objection to an entirely new

subject: ‘‘the detailed market power

application filing requirements

proposed by the NOPR.’’ 4 It concludes:

‘‘When two proposed rules [Order Nos.

561 and 572], addressing different

topics [framework and application],

share a fundamental flaw, and a

commenting party contests that flaw in

each rulemaking, the party’s objection

in the second rulemaking does not

constitute a collateral attack on the first

rulemaking.’’ 5

The Commission denies the AOPL’s

request for rehearing on the collateral

attack issue. It was in Order No. 561 that

the Commission adopted section

342.4(b) of its regulations which

prohibits an oil pipeline from charging

market-based rates until the

Commission determines that it lacks

significant market power in the relevant

markets. This was not an issue in the

present rulemaking proceeding, which

adopted procedural requirements

relating to that determination. Indeed,

the different purpose of the rulemakings

is shown by the fact that if there were

no Order No. 572, Order No. 561’s

requirement, codified in section

342.4(b), about the effectiveness of

market-based rates would still govern.

Nonetheless, the Commission, as in

Order No. 572, will address below the

AOPL’s contentions on the merits.

On the merits, the AOPL maintains

that the Commission has

mischaracterized Order No. 561 as a

permissible waiver procedure when it is

an improper attempt to modify the ICA’s

rate change scheme where the oil

pipeline files a new rate pursuant to

Section 6(3), which is subject to

Commission review under Section

15(7). The AOPL adds that the

application constitutes a rate filing

because the application is inextricably

linked to an oil pipeline’s ability to

charge market-based rates. The AOPL

further maintains that the Commission’s

inconsistent treatment of cost-based and

market-based rates is not justified

because shippers are protected by the

ICA’s refund provisions, oil pipelines

might have an expanded period of lost

revenues if the application process lasts

beyond the statutory seven-month

suspension period, and the Commission

has offered no reason why shippers

need greater protection from presumed

market forces than the statutory

protection from potentially

monopolistic rates.

The Commission denies the AOPL’s

request for rehearing with respect to the

Commission’s statutory authority. An

oil pipeline has no right to charge

market-based rates. Rather, an oil

pipeline must present empirical proof

that it is not a monopoly so that the

Commission can ensure that presumed

market forces are not the basis of

effective rates for the transportation of

oil.6 The Commission has adopted the

market-based ratemaking process as the

procedure that will enable oil pipelines

to prove that they lack significant

market power in the relevant markets

and are thus entitled to an exception to,

that is waiver from, the generally

applicable indexing method and the

maximum just and reasonable rate

allowed thereunder.7 That the market

power determination will affect the oil

pipeline’s ability to charge market-based

rates does not as the AOPL argues,

convert the application into a rate filing.

It merely can lead to such a filing.8

Importantly, the Commission has not

precluded an oil pipeline from making

rate filings to recover its costs under

either the indexing method or a cost-ofservice filing.

It is appropriate that the Commission

has treated cost-based rates and marketbased rates in a different manner by

allowing an oil pipeline to file for costbased rates under Section 6(3) of the

ICA but requiring an oil pipeline to

obtain a market power determination

before it can charge market-based rates.

It is true that both constitute exceptions

to the Commission’s generally

applicable ratemaking method (that is,

indexing) for oil pipelines. However it

is within the Commission’s authority to

determine how an oil pipeline is to

secure permission to charge rates based

on a method that deviates from the

generally applicable method. And the

difference between cost-based rates,

where the cost-of-service method is a

known quantity, and market-based rates

where the Commission must make a

market power determination, justifies

the Commission’s approach of ensuring

that presumed market forces will not be

the basis of effective rates for the

transportation of oil when an oil

pipeline’s application (i.e., its waiver

request) is under consideration.9

The AOPL maintains further that the

Commission erred by adopting rules for

market-based rates that do not comport

with the Act of 1992’s mandate to

‘‘streamline procedures * * * relating

to oil pipelines rates in order to avoid

unnecessary regulating costs and

delays.’’ 10 It argues that the process
360 Federal Register / Vol. 60, No. 2 / Wednesday, January 4, 1995 / Rules and Regulations

adopted by Order No. 572, requiring a

case-in-chief if no protest is filed,

cannot be characterized as a

streamlining measure.

As discussed in Order No. 572, the

Commission has fully complied with

the mandate of the Act of 1992 by

adopting the indexing methodology.

The market-based ratemaking approach

is not generally applicable and, in any,

event, as stated in Order No. 572, does

streamline procedures as to those rates.

Therefore, the Commission denies the

AOPL’s request for rehearing on the

Commission’s conclusion that it did not

violate the Act of 1992.

The Commission Orders

The AOPL’s request for rehearing of

Order No. 572 is denied. By the

Commission.

Lois D. Cashell,

Secretary.

[FR Doc. 95–116 Filed 1–3–95; 8:45 am]

BILLING CODE 6717–01–P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Social Security Administration

20 CFR Part 416

[Regulation No. 16]

RIN 0960–AC96

Supplemental Security Income for the

Aged, Blind, and Disabled; Waiver of

Parent-to-Child Deeming for Certain

Disabled Children

AGENCY: Social Security Administration,

HHS.

ACTION: Final rule.

SUMMARY: This final rule implements

section 8010 of the Omnibus Budget

Reconciliation Act of 1989 which

provides that a disabled child under age

18 who lives with his or her parent(s)

will not have parental income or

resources deemed to him or her if the

child previously received a reduced

supplemental security income (SSI)

benefit (personal needs allowance)

while a resident of a medical facility for

which Medicaid paid more than 50

percent of the cost of the individual’s

care; the child is eligible for medical

assistance under a Medicaid State home

care plan; and the child would

otherwise be ineligible for a Federal SSI

benefit because of the deeming of the

parents’ income or resources. The rule

also provides that, although deeming is

waived in these circumstances, the inkind support and maintenance provided

by the parents will not be counted.

Lastly, when such a child would not be

ineligible because of the deeming of his

parents’ income but would receive a

benefit of less than the amount payable

under section 8010, the child’s benefit

will be $30 a month plus any optional

State supplementation. Any of the

child’s own countable income will then

be deducted from that amount.

EFFECTIVE DATE: This rule is effective

January 4, 1995.

FOR FURTHER INFORMATION CONTACT:

Sandy Bond, 3–B–1 Operations

Building, 6401 Security Boulevard,

Baltimore, MD 21235, (410) 965–1794.

SUPPLEMENTARY INFORMATION: Section

1614(f)(2) of the Social Security Act (the

Act), requires that, for purposes of

determining eligibility for and the

amount of SSI benefits, the income and

resources of a child under age 18 be

deemed to include the income and

resources of a parent (or spouse of a

parent) who is living in the same

household as the child, except to the

extent determined by the Secretary to be

inequitable under the circumstances.

Regulations at § 416.1160 through

§ 416.1169 explain how we deem

income and when it is inequitable to

deem part or all of that income.

Regulations at § 416.1202 through

§ 416.1204a explain how we deem

resources.

Section 8010(a) of Pub. L. 101–239

amended section 1614(f)(2) of the Act to

provide that parental income and

resources shall not be deemed to any

child under age 18 who is disabled,

received SSI benefits under section

1611(e)(1)(B) while in an institution

described in that section, is eligible for

medical assistance under a State home

care plan approved by the Secretary

under the provisions of section 1915(c)

of the Act or authorized under section

1902(e)(3), and, except for this waiver of

deeming, would not be eligible for a

Federal SSI benefit. Section 8010(b)

amended section 1611(e)(1)(B) of the

Act to include eligible children as

described in section 1614(f)(2)(B) of the

Act, among those eligible for the SSI

personal needs allowance. These

provisions became effective June 1,

1990.

The regulation provides that we do

not deem parental income and resources

to disabled children who:

• Previously received SSI personal

needs allowance benefits while

residents of a medical facility for which

Medicaid paid more than fifty percent of

the cost of the individuals’ care;

• Are eligible for medical assistance

under Medicaid State home care plans

approved by the Secretary under the

provisions of section 1915(c) of the Act

or authorized under section 1902(e)(3);

and

• Would otherwise be ineligible for a

Federal SSI benefit because of the

deeming of their parents’ income and/or

resources.

The regulation also provides that

children for whom the deeming rules

are waived may be eligible to receive an

SSI benefit up to the personal needs

allowance (currently $30 monthly), plus

an optional State supplement in certain

States. The optional State supplement

payable to a child for whom the

deeming rules are waived will be

determined by the State and, if the

supplement is administered by the

Federal government, set out in Federal/

State agreements.

Further, the regulation states that inkind support and maintenance provided

by a child’s parent(s), which we do not

count when deeming of parental income

applies, also will not count when

deeming of parental income is waived

under section 1614(f)(2) of the Act.

Otherwise, the counting of such in-kind

support and maintenance could negate

the beneficial effect of section 8010 of

Pub. L. 101–239.

Finally, the regulation addresses the

situation of children who do not meet

the criteria for waiver of deeming only

because parental income is not high

enough to make them ineligible for SSI

benefits but is high enough to result in

an SSI payment that is less than the

amount that would be payable under

section 8010 of Pub. L. 101–239. Under

the regulation, such children would

receive an SSI benefit up to the personal

needs allowance plus any optional State

supplement. Any of the child’s own

countable income would then be

deducted from that amount. This change

is being made under the Secretary’s

discretionary deeming authority in

section 1614(f)(2)(A) of the Act which

allows the Secretary to determine the

extent to which deeming of parental

income and resources is inequitable

under the circumstances. This change is

necessary to prevent anomalies from

being introduced into parent-to-child

deeming.

We published this regulation as a

notice of proposed rulemaking (NPRM)

on September 22, 1993, (58 FR 49249).

The 60-day comment period ended on

November 22, 1993. We received no

comments and are adopting the

regulation as proposed.

Regulatory Procedures

Executive Order No. 12866

We have consulted with the Office of

Management and Budget (OMB) and

determined that this rule does not meet