Federal Register / Vol. 70, No. 184 / Friday, September 23, 2005 / Notices 55819 

1Arkla 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 Conoco Inc. v. FERC, 90 

F.3d 536 (D.C. Cir. 1996) (Conoco). 

2Williams Gas Processing Co., L.P. v. FERC, 373 

F.3d 1335 (2004) (Williams Gas Processing). 

3Williams Gas Processing, at 1342. 

4 Id. at 1342. 

5 Id. 

ACTION: Submission for Office of 

Management and Budget (OMB) review; 

comment request. 

SUMMARY: The Department of Energy 

(DOE) has submitted an information 

collection package to the OMB for 

extension under the provisions of the 

Paperwork Reduction Act of 1995. The 

package requests a three-year extension 

of its Security, OMB Control Number 

1910–1800. This information collection 

package covers information necessary 

for DOE management to exercise 

management oversight and control over 

their contractors. The collections consist 

of information (1) for the nuclear 

materials control and accountability for 

DOE-owned and—leased facilities and 

DOE-owned nuclear materials at other 

facilities that are exempt from licensing 

by the NRC; (2) for the protection of 

classified information, special nuclear 

materials and other national security 

assets (DOE site self-assessments and 

site security plans); and (3) on DOE 

Federal and contractors traveling to 

foreign countries; for tracking and 

recording background information on 

foreign nationals having access to DOE 

facilities and information; and 

collection of Foreign Ownership, 

Control or Influence data from bidders 

on DOE contracts requiring personnel 

security clearances. 

DATES: Comments regarding this 

collection must be received on or before 

October 24, 2005. If you anticipate that 

you will be submitting comments, but 

find it difficult to do so within the 

period of time allowed by this notice, 

please advise the OMB Desk Officer of 

your intention to make a submission as 

soon as possible. The Desk Officer may 

be telephoned at 202–395–4650. 

ADDRESSES: Written comments should 

be sent to: DOE Desk Officer, Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, New 

Executive Office Building, Room 10102, 

735 17th Street, NW., Washington, DC 

20503. 

Comments should also be addressed 

to: Sharon A. Evelin, Director, IM–11/ 

Germantown Bldg., U.S. Department of 

Energy, 1000 Independence Ave SW., 

Washington, DC 20585–1290, and to: 

Kathy Murphy, SP–1.22 Germantown 

Building, U.S. Department of Energy, 

19901 Germantown Road, Germantown, 

Maryland 20874–1290. 

FOR FURTHER INFORMATION CONTACT: 

Sharon A. Evelin and Kathy Murphy, at 

the addresses listed above in 

ADDRESSES. 

SUPPLEMENTARY INFORMATION: This 

package contains: (1) OMB No.: 1910–

1800; (2) Package Title: Security (3) 

Purpose: for DOE management to 

exercise management oversight and 

control over their contractors; (4) 

Estimated Number of Respondents: 

39,136; (5) Estimated Total Burden 

Hours: 249,955; (6) Number of 

Collections: The package contains 

fourteen (14) information and/or 

recordkeeping requirements. 

Statutory Authority: Department of Energy 

Organization Act, Public Law 95–91, of 

August 4, 1977. 

Sharon A. Evelin, 

Director, Records Management Division, 

Office of the Chief Information Officer. 

[FR Doc. 05–19038 Filed 9–22–05; 8:45 am] 

BILLING CODE 6450–01–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; Notice of 

Inquiry 

September 15, 2005. 

1. This order institutes a notice of 

inquiry to evaluate possible changes in 

the criteria set forth in Arkla Gathering 

Service Co.1 employed by the 

Commission in evaluating whether and 

under what circumstances the 

Commission may invoke its ‘‘in 

connection with’’ jurisdiction to guard 

against abusive practices by natural gas 

companies and their gathering affiliates. 

2. The Arkla test involves a 

determination that, as a result of the 

concerted action of a pipeline and its 

gathering affiliate, the Commission’s 

effective regulation of the pipeline is 

circumvented. In a recent decision,2 the 

United States Court of Appeals for the 

District of Columbia found that the 

Commission had misapplied the criteria 

set forth in Arkla. Under Arkla, the 

Commission’s ability to reassert 

jurisdiction is limited to abuses directly 

related to the affiliate’s unique 

relationship with an interstate pipeline, 

such as tying gathering service to the 

pipeline’s jurisdictional transmission 

service or cross-subsidization between 

the affiliate’s gathering rates and the 

pipeline’s transmission rates. The court 

stated that Arkla permits a reassertion of 

jurisdiction in circumstances ‘‘limited 

to’’ abuses ‘‘directly related to the 

affiliate’s unique relationship with an 

interstate pipeline,’’ such as ‘‘tying 

gathering service to the pipeline’s 

jurisdictional transmission service,’’ or 

‘‘cross-subsidization between the 

affiliate’s gathering rates and the 

pipeline’s transmission rates.’’ 3 The 

court found that, in the case before it, 

the gathering affiliate’s affiliation with 

the pipeline was ‘‘utterly irrelevant to 

its ability to charge high rates, or to 

impose onerous conditions for gathering 

service.’’ 4 Instead, the affiliate ‘‘could 

do these things for one reason only ‘‘

because it was a recently deregulated 

monopolist in the North Padre gathering 

market.’’ 5 Accordingly, the court held 

that the Commission had not met its 

own test under Arkla for reassertion of 

jurisdiction and vacated and remanded 

the Commission’s orders. 

3. The Commission is interested in 

reevaluating both its legal authority to 

reassert jurisdiction and the policy 

considerations in deciding whether to 

do so. To assist this reevaluation of the 

Arkla test, the Commission is seeking 

comment on the following questions: 

1. Is there an inherent anticompetitive issue when pipelines spindown gathering facilities to affiliates or 

are concerns about the behavior of 

affiliated gatherers unique to certain 

specific pipeline/affiliate relationships, 

such as those articulated by Shell in its 

request for rehearing in the Shell v. 

Transco proceeding in Docket No. 

RP02–99–010? 

2. Once a pipeline has spun-down its 

gathering services into an affiliated 

company, is it common for the affiliated 

gatherer to seek higher rates for its 

gathering services than the rates charged 

by the pipeline for those services prior 

to the spin-down? 

a. How do the rates of non-affiliated 

gatherers compare to the rates of 

affiliated gatherers? 

b. Have the rates charged by affiliated 

gatherers had an impact on well shutins? 

3. What factors are relevant in 

determining whether a gathering 

affiliate is separate from its pipeline 

affiliate and independent from its 

pipeline affiliate in performing its 

gathering functions? 

4. Must a gathering affiliate be 

physically separate and separately 

staffed in order to be independent of its 

pipeline affiliate? 

5. Because the basis of initially 

disclaiming NGA section 4 and 5 ‘‘in 

55820 Federal Register / Vol. 70, No. 184 / Friday, September 23, 2005 / Notices 

1Panhandle III, 337 U.S. at 508–09, 69 S.Ct. at 

1257–58. 

2Conoco Inc. v. FERC, 90 F.3rd 536 at 552 (D.C. 

Cir. 1996), cert. denied, 519 U.S. 1142 (1997). 

connection with’’ rate and service 

jurisdiction is solely a change in 

ownership of the gathering facilities, is 

it necessary for the Commission to 

require a showing of collusion or 

abusive conduct in order to reassert 

jurisdiction, if it is found that the 

transfer of the facilities is a sham and/ 

or there is no real, de facto separate 

corporate ownership? 

6. What kind of conduct should 

trigger the Commission’s reassertion of 

jurisdiction over the gathering services 

of a pipeline affiliate? 

7. Should the Commission be 

especially concerned about the actions 

of gathering affiliates when they control 

access to an essential facility in order to 

gain access to the interstate pipeline 

grid? 

8. Should a showing of ‘‘concerted 

action’’ by the gathering affiliate and the 

pipeline be required, or should it be 

sufficient for the gathering affiliate 

alone to have engaged in 

anticompetitive or otherwise 

objectionable behavior to trigger the 

Commission’s reassertion of 

jurisdiction? 

9. What kind of activities would 

constitute ‘‘concerted action’’ between 

the gathering affiliate and its affiliated 

pipeline for purposes of circumventing 

the Commission’s effective regulation of 

the pipeline? 

10. What incentives do states have to 

ensure that providers of gathering 

services do not engage in 

anticompetitive behavior? 

11. Is there a gap between state 

regulation of gathering services and the 

Commission’s regulation of natural gas 

companies, and, if so, what is the nature 

of that gap? 

12. Should the Commission view the 

conduct of offshore affiliated gatherers 

differently from onshore affiliated 

gatherers due to the lack of state 

regulation offshore? 

13. What criteria should the 

Commission employ in reasserting NGA 

section 4 and 5 ‘‘in connection with’’

jurisdiction over gathering rates and 

services following a spin-down of 

gathering facilities by a pipeline to an 

affiliate? 

Procedure for Comments 

4. The Commission invites interested 

persons to submit comments, and other 

information on the matters, issues and 

specific questions identified in this 

notice. Comments are due 60 days from 

the date of publication in the Federal 

Register. Comments must refer to 

Docket No. PL05–10–000, and must 

include the commentor’s name, the 

organization they represent, if 

applicable, and their address. 

5. To facilitate the Commission’s 

review of the comments, the 

Commission requests that commentors 

provide an executive summary of their 

position. In addition, the Commission 

requests that commentors identify each 

specific question posed by the Notice of 

Inquiry that their comments address and 

to use appropriate headings. Comments 

should be double-spaced. 

6. Comments may be filed on paper or 

electronically via the eFiling link on the 

Commission’s Web site at http:// 

www.ferc.gov. The Commission accepts 

most standard word processing formats 

and commentors may attach additional 

files with supporting information in 

certain other file formats. Commentors 

filing electronically do not need to make 

a paper filing. Commentors that are not 

able to file comments electronically 

must send an original and 14 copies of 

their comments to: Federal Energy 

Regulatory Commission, Office of the 

Secretary, 888 First Street NE., 

Washington, DC 20426. 

7. All comments will be placed in the 

Commission’s public files and may be 

viewed, printed, or downloaded 

remotely as described in the Document 

Availability section below. Commentors 

are not required to serve copies of their 

comments on other commentors. 

Document Availability 

8. In addition to publishing the full 

text of this document in the Federal 

Register, the Commission provides all 

interested persons an opportunity to 

view and/or print the contents of this 

document via the Internet through the 

Commission’s Home Page (http:// 

www.ferc.gov) and in the Commission’s 

Public Reference Room during normal 

business hours (8:30 a.m. to 5 p.m. 

eastern time) at 888 First Street, NE., 

Room 2A, Washington DC 20426. 

9. From the Commission’s Home Page 

on the Internet, this information is 

available in the Commission’s document 

management system, eLibrary. The full 

text of this document is available on 

eLibrary in PDF and Microsoft Word 

format for viewing, printing, and/or 

downloading. To access this document 

in eLibrary, type the docket number 

(excluding the last three digits) in the 

docket number field. 

10. User assistance is available for 

eLibrary and the Commission’s Web site 

during normal business hours. For 

assistance, please contact the 

Commission’s Online Support at 1–866–

208–3676 (toll free) or 202–502–6652 (email at FERCOnlineSupport@ferc.gov) 

or the Public Reference Room at 202–

502–8371, TTY 202–502–8659 (e-mail at 

public.referenceroom@ferc.gov). 

By direction of the Commission. 

Commissioner Brownell concurring with a 

separate statement attached. 

Magalie R. Salas, 

Secretary. 

Notice of Inquiry on Criteria for 

Reassertion Jurisdiction Over the 

Gathering Services of Natural Gas 

Company Affiliates. 

BROWNELL, Commissioner, 

concurring: 

Today we issue a Notice of Inquiry 

(NOI) to evaluate possible changes in 

the criteria for invoking the 

Commission’s ‘‘in connection with’’

jurisdiction. I appreciate the need to 

guard against affiliate abuse. However, I 

think it is important to put the questions 

proffered in the NOI in context. 

In Panhandle, the Supreme Court 

found that sections 4, 5 and 7 of the 

NGA do not concern gathering and only 

extend to the interstate transportation of 

gas by their express terms.1 In Conoco, 

the court expressly stated that where an 

activity or entity falls within the section 

1(b) gathering exemption of the NGA, 

the other provisions of the NGA, 

including the ‘‘in connection with’’

language in sections 4 and 5 neither 

expand our jurisdiction nor override the 

gathering exemption.2 Therefore, the 

fundamental question for me is whether 

any new test has a direct nexus to our 

effective regulation of the interstate 

pipeline, not the gatherer. I am hard 

pressed to find that necessary linkage 

even if a spun-down entity seeks a 

higher rate for its services or is an 

essential access point to the interstate 

grid. In either situation, the Commission 

will continue to employ its section 4 

and 5 NGA authority to ensure that the 

pipeline’s rates remain just and 

reasonable. 

Since Order 636, the Commission has 

approved a number of proposals to spindown (as well as spin-off) gathering 

facilities because such transfers 

eliminated unnecessary costs from 

interstate rates and the stand-alone 

gatherer could more efficiently utilize 

the facilities involved. There have been 

very few complaints. 

I urge commenters to consider 

whether there is a need for a new test 

and, if so, how any new test is 

consistent with the limits of our current 

statutory authority. 

Dated: 

Nora Mead Brownell, 

Commissioner. 

[FR Doc. 05–19001 Filed 9–22–05; 8:45 am] 

BILLING CODE 6717–01–P