70056 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations 

50 16 CFR 424.1. 

51Rule Amendment, 54 FR at 35463. 

52To the extent that there is any ambiguity about 

the meaning of ‘‘raincheck,’’ it is proper to interpret 

the term consistently with the purpose of the Rule. 

See Public Citizen v. U.S. Dept. of Justice, 491 U.S. 

440, 455 (1989). 

53Notice of Proposed Rulemaking, 50 FR at 

43230. See also Id. at 43225 (‘‘the Rule could 

produce benefits by saving shoppers an extra trip 

back to the same store or to another store to 

purchase the advertised item (the ‘trip gain’).’’); 

Rule Amendment, 54 FR at 35459 (the Rule benefits 

consumers ‘‘through the avoidance of trip losses 

(‘the trip gain’), which are losses that result from 

the expense of wasted trips to retail outlets for 

advertised items that are unavailable.’’); Id. at 35463 

(‘‘Savings that have been realized by consumers 

[from the Rule] are principally the result of 

reduction in the number of unsuccessful trips made 

to purchase items that are not in stock.’’). 

54Cosser, Dexter, Lewis, Wright, Ickes, Heiser, 

Cummings, John K, Rasley. 

55Cummings, Boyd, Thorson, Ickes. 

56Thorson proposed amending the Rule to 

require retail food stores to ‘‘duplicate conditions 

at the time of the sale . . .’’ Thorson at 1. 

57Section 553 of the Administrative Procedure 

Act, 5 U.S.C. 553(b)(3)(B), provides that, when an 

agency for good cause finds that notice and public 

procedure are impracticable, unnecessary, or 

contrary to the public interest, the agency may issue 

a final rule without providing notice and an 

opportunity for public comment. The Commission 

has determined that there is good cause for making 

this technical correction final without prior 

opportunity for comment, because this is merely a 

technical change to correct a typographical error 

and is not a substantive change. 

58This will harmonize the Rule with the 

Commission’s normal practice, which is not to 

publish dissents in the Code of Federal Regulations. 

The dissents will remain available to the public at 

54 FR 35468. 

raincheck at all, and the defense is not 

available to it.50

Similarly, a store that offers a 

‘‘raincheck’’ that expires before the store 

restocks the advertised item cannot use 

the defense. The raincheck must 

provide ‘‘compensation equal to that of 

the advertised savings.’’ 51 A raincheck 

that expires before consumers can use it 

has no value, much less value equal to 

the advertised savings. Therefore, it is 

not a ‘‘raincheck’’ at all. 

These clear requirements are 

consistent with the purpose of the 

‘‘raincheck’’ defense.52 The defense 

protects consumers’ ability to purchase 

items at advertised sale prices without 

‘‘needless transportation cost[s].’’ 53

Using a raincheck, a consumer can 

purchase an item at the sale price 

during the consumer’s next trip to the 

store, thereby avoiding extra travel time 

or expenses. Failing to offer rainchecks 

at the time it cannot make advertised 

products readily available to consumers, 

such as when a store refuses to provide 

rainchecks until a sale ends, would 

require consumers to make additional 

trips and pay extra travel costs, thereby 

undermining the purpose of the Rule.54

C. Consequential Costs From 

Unavailability 

Four comments noted that consumers 

may not realize all savings even when 

offered rainchecks or comparable 

merchandise under the defenses in 

paragraphs 424.2(b), (c), or (d) of the 

Rule.55 For example, promotions such 

as ‘‘Register Rewards’’ or coupon 

doubling may expire before consumers 

can use rainchecks, or manufacturers’ 

coupons may not apply to similar 

products offered under the defense in 16 

CFR 424.2(c). Therefore, these 

comments proposed amending the Rule 

to require retail food stores to 

compensate consumers for 

consequential costs caused by 

unavailability.56

The record, however, does not contain 

evidence regarding the nature or extent 

of any such consequential losses. Nor 

does it contain evidence to support a 

factual determination regarding the 

potential costs or benefits of amending 

the Rule to require compensation for 

consequential costs from unavailability. 

Consequently, the Commission does not 

propose amending the Rule at this time 

to require compensation for 

consequential losses. 

VII. Conclusion 

For the reasons described above, the 

Commission has determined to retain 

the current Retail Food Store 

Advertising and Marketing Practices 

Rule, issue a Rule amendment 

correcting a typographical error,57 and 

cease publishing dissents to the Rule’s 

previous amendment.58

List of Subjects in 16 CFR Part 424 

Advertising, Foods, Trade practices. 

For the reasons set forth in the 

preamble, the Federal Trade 

Commission amends 16 CFR part 424, 

as follows: 

PART 424—RETAIL FOOD STORE 

ADVERTISING AND MARKETING 

PRACTICES 

■ 1. The authority citation for part 424 

is revised to read as follows: 

Authority: 15 U.S.C. 41–58. 

§ 424.1 [Amended] 

■ 2. Amend § 424.1 by removing the 

words ‘‘In connection with the sale of 

offering for sale’’ and adding, in their 

place, the words ‘‘In connection with 

the sale or offering for sale’’. 

§ 424.2 [Amended] 

■ 3. Remove the two statements that 

follow the text of § 424.2(d). 

By direction of the Commission. 

Donald S. Clark, 

Secretary. 

[FR Doc. 2014–27798 Filed 11–24–14; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Parts 2, 157, and 380 

[Docket No. RM12–11–002; Order No. 

790–A] 

Revisions to Auxiliary Installations, 

Replacement Facilities, and Siting and 

Maintenance Regulations 

AGENCY: Federal Energy Regulatory 

Commission, Energy. 

ACTION: Final rule; order on rehearing 

and clarification. 

SUMMARY: On rehearing, the Federal 

Energy Regulatory Commission 

(Commission) reaffirms its basic 

determinations in Order No. 790 and 

modifies and clarifies certain aspects of 

the Final Rule. Order No. 790 amended 

the Commission’s regulations to clarify 

that auxiliary installations added to 

existing or proposed interstate 

transmission facilities under the 

Commission’s regulations must be 

located within the authorized right-ofway or site for existing facilities or the 

right-of-way or site to be used for 

facilities proposed in a pending 

application for case-specific certificate 

authority or in a prior notice filing 

under the Commission’s blanket 

certificate regulations, and use only the 

same temporary work space that was or 

will be used to construct the existing or 

proposed facilities. Order No. 790 also 

codified the common industry practice 

of notifying landowners prior to coming 

onto their property to undertake 

projects, or certain replacements, or 

certain maintenance activities. 

DATES: This rule is effective January 26, 

2015. 

FOR FURTHER INFORMATION CONTACT: 

Katherine Liberty, Office of the General 

Counsel, Federal Energy Regulatory 

Commission, 888 First Street NE., 

Washington, DC 20426, (202) 502– 

6491, katherine.liberty@ferc.gov. 

Gordon Wagner, Office of the General 

Counsel, Federal Energy Regulatory 

Commission, 888 First Street NE., 

Washington, DC 20426, (202) 502– 

8947, gordon.wagner@ferc.gov. 

Howard Wheeler, Office of Energy 

Projects, Federal Energy Regulatory 

Commission, 888 First Street NE., 


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Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations 70057 

1 18 CFR 2.55 (2014). 

2Revisions to Auxiliary Installations, 

Replacement Facilities, and Siting and 

Maintenance Regulations, Order No. 790, 78 FR 

72794–801 (Dec. 4, 2013), FERC Stats. & Regs. 

¶ 31,351 (2013) (cross-referenced at 145 FERC 

¶ 61,154 (2013)). 

3 15 U.S.C. 717f(c)(1)(A) (2012). 

4 Filing of Applications for Certificates of Public 

Convenience and Necessity, Notice of Proposed 

Rulemaking, NOPR, 13 FR 6253, at 6254 (October 

23, 1948). 

5 18 CFR 2.55 (2014). 

6 Id. 2.55(a)(1). But for the inclusion of pig 

launchers/receivers in 1999, this list has remained 

unaltered since section 2.55 was put in place in 

1949. Note that if a pipeline company wants to 

install any facilities specifically named in section 

2.55(a)(1), but will not be installing them only for 

the purpose of obtaining more efficient or more 

economical operation of existing or proposed 

interstate transmission facilities, then the company 

cannot rely on section 2.55(a). See Algonquin Gas 

Transmission Company, 57 FERC ¶ 61,052 (1991); 

West Texas Gas, Inc., 62 FERC ¶ 61,039 (1993); and 

Natural Gas Pipeline Company of America, 114 

FERC ¶ 61,061, at n.4 (2006). 

Washington, DC 20426, (202) 502– 

8688, howard.wheeler@ferc.gov. 

Shannon Jones, Office of Energy 

Projects, Federal Energy Regulatory 

Commission, 888 First Street NE., 

Washington, DC 20426, (202) 502– 

6410, shannon.jones@ferc.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

Paragraph 

numbers 

I. Background .......................................................................................................................................................................................... 3 

II. Discussion .......................................................................................................................................................................................... 11 

A. Section 2.55(a) Auxiliary Facilities ........................................................................................................................................... 11 

1. Commission’s Jurisdiction ................................................................................................................................................... 12 

2. Section 2.55 Siting and Construction Limitations ............................................................................................................. 26 

3. INGAA’s Response to the NOPR ......................................................................................................................................... 40 

4. Compliance With Executive Orders .................................................................................................................................... 43 

B. Landowner Notification ............................................................................................................................................................. 44 

1. Waiver of Five-Day Prior Notice ......................................................................................................................................... 45 

2. Emergency Exemption to Notice Requirement .................................................................................................................. 47 

3. Affected Landowners ........................................................................................................................................................... 50 

4. One-Call Obligations ............................................................................................................................................................ 53 

5. Burden Resulting From the Landowner Notification Requirement .................................................................................. 54 

C. Consistency With the Commission’s Regulations ..................................................................................................................... 61 

III. Information Collection Statement .................................................................................................................................................... 63 

IV. Environmental Analysis ................................................................................................................................................................... 65 

V. Document Availability ...................................................................................................................................................................... 66 

VI. Effective Date and Congressional Notification ............................................................................................................................... 69 

Final Rule—Order on Rehearing and 

Clarification 

1. On November 22, 2013, the Federal 

Energy Regulatory Commission 

(Commission) issued a Final Rule in 

Order No. 790 that amended its 

regulations, effective February 3, 2014, 

to: (1) Clarify that auxiliary installations 

added to existing or proposed interstate 

transmission facilities under section 

2.55 of the Commission’s regulations 1

must (a) be located within the 

authorized right-of-way or site for 

existing facilities or the right-of-way or 

site to be used for facilities proposed in 

a pending application for case-specific 

certificate authority or in a prior notice 

filing under the Commission’s Part 157 

blanket certificate regulations, and (b) 

use only the same temporary work space 

that was or will be used to construct 

existing or proposed facilities; and (2) 

codify the common industry practice of 

notifying landowners prior to coming 

onto their property to undertake section 

2.55 projects, certain Part 157, Subpart 

F replacements, or certain section 

380.15 maintenance activities.2

2. The Commission received two 

requests for rehearing and clarification 

of the Final Rule, one filed by the 

Interstate Natural Gas Association of 

America (INGAA) and the other filed 

jointly by National Fuel Gas Supply 

Corporation and Empire Pipeline, Inc. 

(referred to collectively as ‘‘National 

Fuel’’). As discussed below, this order 

denies the requests for rehearing and 

grants and denies the requests for 

clarification. 

I. Background 

3. Section 7(c)(1)(A) of the Natural 

Gas Act (NGA) requires a natural gas 

company to have certificate 

authorization for the ‘‘construction or 

extension of any facilities.’’ 3 To ‘‘avoid 

the filing and consideration of 

unnecessary applications for 

certificates,’’ 4 i.e., to save the time and 

expense that would otherwise be 

expended by companies and the 

Commission in undertaking a full, 

formal NGA section 7 certificate 

proceeding for every modification to a 

jurisdictional pipeline system, section 

2.55 establishes that for the purposes of 

section 7(c), ‘‘the word facilities as used 

therein shall be interpreted to exclude’’ 

auxiliary and replacement facilities.5

Thus, while an auxiliary or replacement 

facility that qualifies for purposes of 

section 2.55 remains subject to the 

Commission’s NGA jurisdiction, it does 

not require an individual, facilityspecific section 7(c) certificate 

authorization. 

4. Facilities that qualify under section 

2.55(a) must be ‘‘merely auxiliary or 

appurtenant to an authorized or 

proposed pipeline transmission system’’ 

and installed ‘‘only for the purpose of 

obtaining more efficient or more 

economical operation of the authorized 

or proposed transmission facilities,’’ 

such as ‘‘[v]alves; drips; pig launchers/ 

receivers; yard and station piping; 

cathodic protection equipment; gas 

cleaning, cooling and dehydration 

equipment; residual refining equipment; 

water pumping, treatment and cooling 

equipment; electrical and 

communication equipment; and 

buildings.’’ 6 A company must provide 

the Commission with at least 30 days 

prior notice if it plans to rely on section 

2.55 to construct auxiliary facilities in 

conjunction with: (1) A project for 

which case-specific certificate authority 

has already been received but which is 

not yet in service; (2) a proposed project 

for which a case-specific certificate 

application is pending; or (3) facilities 

that will be constructed subject to the 

prior notice provisions of the Part 157, 

Subpart F blanket certificate regulations. 

5. Section 2.55(b) permits companies 

to replace facilities that are or will soon 

be physically deteriorated or obsolete, 

so long as doing so will not result in a 

reduction or abandonment of service 

and the replacement facilities will have 

a substantially equivalent designed 


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70058 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations 

7 18 CFR 2.55(b) (2014). 

8 Id. 2.55(b)(ii). 9The requirement that a company give at least 30 

days prior notice to the Commission before 

commencing a replacement project applies if the 

project will exceed the current cost limit for 

projects automatically authorized under the Part 

157 blanket certificate regulations. However, unlike 

the blanket certificate regulations, section 2.55 

places no cost limits on auxiliary installations or 

replacement projects that qualify under that section. 

10On May 2, 2012, MidAmerican Energy Pipeline 

Group (which includes Kern River Gas 

Transmission Company and Northern Natural Gas 

Company) filed a motion to intervene and 

comments in support of INGAA’s petition. 

11 5 U.S.C. 553 (2012). 

12Revisions to Auxiliary Installations, 

Replacement Facilities, and Siting and 

Maintenance Regulations, NOPR, 78 FR 679, at 683 

(Jan. 4, 2013), FERC Stats. & Regs. ¶ 32,696 (2012) 

(cross-referenced at 141 FERC ¶ 61,228 (2012)). 

While section 380.15 covers siting, construction, 

and maintenance, our existing regulations already 

have notification requirements in place applicable 

to siting and construction; consequently, the 

additional prior notice requirement described in the 

new section 380.15(c) will apply exclusively to 

maintenance activities. 

13 Filing of Applications for Certificates of Public 

Convenience and Necessity, 14 FR 681 (February 

16, 1949). 

14Section 2.55(c), which describes new delivery 

points, was subsequently removed by Order No. 

148–A, 49 FPC 1046 (1973). Delivery points are 

now included among the facilities that may be 

constructed and operated pursuant to blanket 

certificate authority. See 18 CFR 157.211 (2014). 

15 INGAA’s Request for Rehearing at 22. 

delivery capacity.7 All replacement 

facilities constructed under section 

2.55(b) must be located within the 

existing facilities’ previously authorized 

right-of-way or on the same site as the 

facilities being replaced and must be 

constructed using the same temporary 

work spaces used to construct the 

existing facilities.8 Section 2.55(b) 

replacement projects can go forward 

without case-specific or blanket 

certificate authorization. However, 

companies must provide the 

Commission with 30 days prior notice 

before undertaking more expensive 

replacement projects.9

6. On April 2, 2012, INGAA filed a 

petition requesting that the Commission 

clarify that installations of auxiliary 

facilities under section 2.55(a) are not 

restricted to the rights-of-way and 

temporary work spaces used to 

construct the existing facilities that will 

be augmented by the auxiliary 

facilities.10 INGAA stated that it was 

seeking such clarification because 

Commission staff has stated in 

discussions with pipeline 

representatives and in industry 

meetings that companies undertaking 

section 2.55(a) auxiliary installations to 

augment existing facilities that are 

already in service must stay within the 

right-of-way or site for the existing 

facilities and restrict construction 

activities to previously used work 

spaces. INGAA disagreed with these 

constraints, arguing that section 2.55(a) 

activities had not been limited in this 

way in the past, and that Commission 

staff’s position amounted to rulemaking 

without the opportunity for notice and 

comment, contrary to the requirements 

of the Administrative Procedure Act 

(APA).11 Pursuant to section 

385.207(a)(4) of the Commission’s Rules 

of Practice and Procedure, INGAA 

requested that the Commission confirm 

INGAA’s view that the siting and work 

space constraints stated by staff do not 

apply to section 2.55(a) auxiliary 

installations. 

7. On December 20, 2012, the 

Commission issued a NOPR proposing 

to revise section 2.55(a) to clarify that, 

as with section 2.55(b), all projects must 

take place within a company’s 

authorized right-of-way or facility site 

and use only previously approved work 

spaces. In addition, the NOPR proposed 

to add a 10-day landowner notification 

requirement for section 2.55 auxiliary 

and replacement facilities and for 

section 380.15 maintenance activities.12

8. On November 22, 2013, the 

Commission issued the Final Rule to 

revise its regulations to clarify that all 

section 2.55(a) auxiliary installations 

added to existing or proposed interstate 

transmission facilities must be located 

within the authorized right-of-way or 

site for the existing or proposed 

facilities and use only the same 

temporary work space used to construct 

the existing or proposed facilities. In 

addition, the Final Rule adopted 

regulations to provide a landowner with 

notice at least five days prior to 

commencing an auxiliary or 

replacement project under section 2.55 

or a maintenance activity under section 

380.15 that causes a ground disturbance 

on the landowner’s property. 

9. On December 23, 2013, INGAA and 

National Fuel each filed a request for 

rehearing of the Final Rule’s 

determination that all auxiliary 

installations added to existing or 

proposed interstate transmission 

facilities must be located within the 

authorized right-of-way or site for the 

existing or proposed facilities and use 

only the same temporary work space 

used to construct the existing or 

proposed facilities. 

10. In regard to the Final Rule’s 

landowner notification requirements, 

INGAA and National Fuel request that 

the Commission clarify that: (1) The 

landowner notification requirements 

may be waived with the landowner’s 

consent; (2) the provision that enables 

companies to waive the landowner 

notification requirements for ‘‘activities 

required to respond to an emergency’’ 

includes activities done for safety, U.S. 

Department of Transportation (DOT) 

compliance, or environmental or 

unplanned maintenance reasons; (3) the 

landowner notification requirement 

does not apply when a pipeline 

company is required on short notice to 

mark its facilities on a landowner’s 

property because the landowner or a 

third party will be digging near the 

pipeline company’s facilities; and (4) 

the landowner notification does not 

apply to landowners whose property is 

crossed en route to a proposed grounddisturbing maintenance activity, or to 

areas located entirely within the fence 

line of an existing, above-ground facility 

site. 

II. Discussion 

A. Section 2.55(a) Auxiliary Facilities 

11. The Final Rule revised the 

Commission’s regulations to clarify that 

all section 2.55(a) auxiliary installations 

added to existing or proposed interstate 

transmission facilities must be located 

within the authorized right-of-way or 

site for the existing or proposed 

facilities and use only the same 

temporary work space used to construct 

the existing or proposed facilities. 

1. Commission’s Jurisdiction 

12. INGAA persists in its contention 

that section 2.55(a) facilities are beyond 

the Commission’s jurisdiction. This is a 

fundamental misreading of this 

regulatory provision’s intent and 

application. 

13. In 1949, Order No. 148, by 

‘‘amendment of general rules and 

regulations governing the filing of 

applications for certificates of public 

convenience and necessity under 

section 7(c),’’ 13 added section 2.55 to 

our regulations to permit the 

construction and operation of auxiliary, 

replacement, and delivery point 

facilities without the need to obtain 

individual certificates for such 

facilities.14 INGAA maintains that ‘‘[i]n 

Order No. 148, the Commission 

distinguished between jurisdictional 

facilities necessary for the 

transportation of natural gas in 

interstate commerce and nonjurisdictional installations.’’ 15 The 

Commission did not. What the 

Commission did, as explained in the 

NOPR prior to Order No. 148, was ‘‘to 

permit natural-gas companies subject to 

the jurisdiction of the Commission’’ to 

add a restricted set of facilities to, and 

replace parts of, an existing system 

‘‘without further authorization from the 

Commission . . . to avoid the filing and 


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Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations 70059 

16 13 FR 6253–54 (October 23, 1948). 

17 14 FR 681. 

18Order No. 790, FERC Stats. & Regs. ¶ 31,351 at 

P 16. 

19 INGAA’s Request for Rehearing at 39. 

20Order No. 790, FERC Stats. & Regs. ¶ 31,351 at 

P 13 (footnote omitted). 

21Revision of Existing Regulations Under Part 

157 and Related Sections of the commission’s 

Regulations Under the Natural Gas Act, Order No. 

603, 64 FR 26572 at 26575; FERC Stats. & Regs. 

¶ 31,073 at 30,784–85 (1999). 

22As discussed in the Final Rule, Order No. 603 

was prompted by a company’s inappropriate 

reliance on section 2.55(b) to abandon 91 miles of 

pipeline and install new, larger-diameter pipeline, 

portions of which were placed outside the right-ofway of the abandoned pipeline. See Order No. 603, 

FERC Stats. & Regs. ¶ 31,073, at 30,783–84 (1999), 

and Order No. 790, FERC Stats. & Regs. ¶ 31,351, 

at P 17 (2013) (citing Arkla Energy Resources 

Company, 67 FERC ¶ 61,173 (1994) (Arkla), order 

on reh’g, NorAm Gas Transmission Company, 70 

FERC ¶ 61,030 (1995) (NorAm)). Arkla was in the 

process of changing its name to NorAm at the time 

the Commission issued its order finding that Arkla’s 

replacement project did not qualify to go forward 

under section 2.55(b). Thus, Arkla sought rehearing 

under its new name, NorAm. 

consideration of unnecessary 

applications for certificates.’’ 16

(Emphasis added.) Order No. 148 

accomplished this by deeming that 

‘‘[f]or the purposes of section 7(c),’’ i.e., 

with respect to the section of the NGA 

which requires that natural gas 

companies obtain prior certificate 

authorization to construct or acquire 

jurisdictional facilities, ‘‘the word 

‘facilities’ as used therein shall be 

interpreted to exclude’’ auxiliary, 

replacement, and delivery point 

facilities.17 In other words, to reduce the 

burden on the industry and to aid our 

own administrative efficiency, the 

Commission allowed natural gas 

companies already holding section 7 

certificate authorization for existing 

natural gas facilities to make limited 

modifications to those facilities without 

the need to first obtain separate, 

additional, case-specific certificate 

authorization for each modification. In 

the Final Rule, we compared section 

2.55 to our later actions to enable 

companies to act without first 

submitting an individual certificate 

application, stating: 

Section 2.55 is both a precursor and 

complement to our Part 157 blanket 

certificate program. By providing non-casespecific certificate authorization for limited 

classes of facilities, the section 2.55 and 

blanket certificate regulations permit 

companies to satisfy the requirements of 

section 7(c) without having to apply for 

individual case-specific certificates for each 

and every modification to their systems.18

14. Thus, Order No. 148 did not and 

could not remove jurisdictional 

facilities from our jurisdiction, but 

carved out a class of facilities in section 

2.55 that could be added onto, or could 

replace, parts of a larger certificated 

system without the need for further 

review because the auxiliary or 

replacement facilities will be within the 

same rights-of-way and use the same 

work spaces that were reviewed by the 

Commission prior to construction of the 

existing facilities at that location. In 

describing the facilities authorized 

under section 2.55, Order No. 148 did 

not make any jurisdictional distinction 

among section 2.55(a) auxiliary 

installations, section 2.55(b) 

replacements, and section 2.55(c) 

delivery points, indicating all section 

2.55 facilities share the same 

jurisdictional status. INGAA 

acknowledges that 2.55 replacement 

facilities are subject to our jurisdiction, 

stating: 

The facilities in question, both those being 

replaced and those doing the replacing once 

they are in service, are jurisdictional under 

NGA Section 7. The new replacement 

facilities once in service assume the 

certificated position previously occupied by 

the facilities being replaced. . . . The new 

facilities, just like the facilities that they 

replaced, are required to provide the 

pipeline’s previously certificated 

jurisdictional service. In addition, as 

replacements of existing facilities, Section 

2.55(b) projects by definition and by their 

very nature involve an existing right of 

way.19

15. Section 2.55(a) auxiliary 

installations, which are limited to 

facilities that improve the operation of 

a jurisdictional system, have the same 

jurisdictional status as the undisputedly 

jurisdictional replacements. As stated in 

the Final Rule: 

All section 2.55 facilities are integrated 

into a larger interstate transmission system 

and serve no function other than to enable 

that system to perform its jurisdictional 

functions more efficiently or economically; 

just as the larger system is jurisdictional, the 

component parts of that system, including 

auxiliary facilities installed pursuant to 

section 2.55, are jurisdictional as well.20

Accordingly, the facilities identified in 

section 2.55 are permitted to be put in 

place pursuant to the certificate 

authorization of the pipeline system that 

they modify, and are consequently as 

jurisdictional as, and subject to the same 

constraints imposed upon, the system 

that they modify, including siting and 

workspace constraints. 

16. INGAA argues that because Order 

No. 603 amended section 2.55(b) to 

explicitly state that replacements must 

use the same right-of-way and 

workspaces as the facilities being 

replaced, but did not amend section 

2.55(a) to state the same with respect to 

auxiliary facilities, the Commission’s 

intent was to impose these restrictions 

on replacements alone. INGAA is 

incorrect in suggesting that it was not 

until Order No. 603 that the 

Commission viewed section 2.55 as 

limiting all construction activities under 

that section to existing, previously 

studied and approved rights-of-way. 

The Commission stated in Order No. 

603 that ‘‘[c]urrent Policy requires that 

replacement facilities must be placed in 

the existing ROW’’; ‘‘we are not 

allowing additional ROW width under 

Section 2.55’’; and ‘‘we will continue to 

follow Commission policy and limit the 

pipeline’s use of property to construct 

facilities under Section 2.55 to the 

existing ROW.’’ 21

17. The discussion in Order No. 603 

made clear that the Commission has 

always viewed all activities under 

section 2.55 as being limited to existing 

rights-of-way and facility sites. The 

Commission focused on section 2.55(b) 

in Order No. 603 because it was aware 

that some companies incorrectly viewed 

that section as providing authorization 

for them to undertake replacement 

projects using new, not previously 

studied rights-of-way, and thereby in 

theory, swap out large portions of their 

systems under section 2.55(b) with no 

limit as to project size and potential 

impacts.22 At the time, the Commission 

had no intimations of companies 

similarly relying on section 2.55(a) to 

place auxiliary installations in 

greenfield areas. Furthermore, the 

Commission still assumed that there 

was no need for companies to go outside 

existing rights-of-way to install section 

2.55(a) facilities that are ‘‘merely 

auxiliary or appurtenant’’ to and ‘‘only 

for the purpose’’ of enhancing the 

operation of a pipeline’s other 

authorized facilities. It has been only 

relatively recently that Commission 

staff’s discussions with industry 

representatives and INGAA’s petition 

have made it clear that an explicit 

statement of siting limitations is also 

needed in section 2.55(a) to clarify that 

auxiliary installations also must stay 

within previously authorized 

boundaries. 

18. Specifically, over the last several 

years, concerns about potential 

noncompliance with siting restrictions 

for auxiliary installations under section 

2.55 have been conveyed by industry 

representatives and landowners to 

Commission staff. Although the 

concerns presented have not resulted in 

an enforcement action, staff has 

explained the spatial limitations on 

construction activities under section 


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

24 87 FERC ¶ 61,324, at 62,259, n.7, reh’g denied, 

89 FERC ¶ 61,047 (1999). 

25Order No. 603, FERC Stats. & Regs. ¶ 31,073 at 

30,781 (emphasis added). 

26 INGAA’s Request for Rehearing at 39. 

27 Id. at 13–14. 

28We have made policy changes to landowner 

notification requirements in this proceeding; 

however, these notification changes were made 

after considering alternatives and providing an 

explanation for the changes. 

2.55(a) in response to inquiries by 

industry representatives and 

landowners and in presentations and 

conversations at public forums. In part, 

it was these statements by staff that 

motivated INGAA to submit its petition. 

19. In addressing space limitations on 

auxiliary installations under section 

2.55(a) in this rulemaking proceeding, 

we have responded as we did in Order 

No. 603 when we became aware that 

companies were improperly relying on 

section 2.55(b) to construct replacement 

facilities in new rights-of-way. In this 

proceeding, we confirmed the position 

we expressed in Order No. 603 that 

construction activities under section 

2.55 are restricted to projects confined 

to the footprint of existing facilities or 

the right-of-way of other facilities 

proposed in a case-specific certificate 

application or under the prior notice 

provisions of the blanket certificate 

regulations, and revised our regulations 

to codify this clarification. Again, the 

fact that we did not take the opportunity 

in Order No. 603 to insert explanatory 

language in section 2.55(a) shows only 

that the focus of the Commission’s 

concern in 1999 was to address the 

identified issue of replacement facilities 

being installed outside existing rightsof-way, and was not, as INGAA 

contends, indicative of a deliberate 

intent by the Commission to apply 

spatial limitations to replacement 

projects but not to auxiliary projects. 

20. INGAA relies on National Fuel 

Gas Supply Corporation v. FERC, 468 

F.3d 831 (D.C. Cir. 2006) (National Fuel) 

to support its argument. In National 

Fuel, the D.C. Circuit remanded back to 

the Commission a final rule that 

extended the Commission’s Standards 

of Conduct regulations, which already 

applied to pipeline companies’ 

relationships with their marketing 

affiliates, to also apply to a pipeline 

company’s relationships with their nonmarketing affiliates (e.g., affiliated 

producers, gatherers, and processors). 

The court found no record evidence of 

a real problem, and explained that if the 

Commission chose on remand to rely 

solely on a theoretical threat, it would 

need to explain how the potential 

danger of improper communications 

between pipelines and entities other 

than their marketing affiliates justified 

the regulatory restrictions on their 

interactions and why the normal 

complaint process under NGA section 5 

would not suffice.23

21. Our action here is not analogous 

to National Fuel, where the Commission 

sought to extend regulatory restrictions 

to new entities without documentation 

of abuse. Here, we are not expanding 

our regulatory reach based on potential 

industry activities; instead, we are 

simply clarifying the existing bounds of 

the regulatory authority provided by 

section 2.55(a). Further, whereas the 

section 5 complaint process can 

adequately address the economic 

consequences of unfair competitive 

practices after the fact, irreparable and 

unnecessary environmental damage can 

result from companies’ relying on 

section 2.55 of the regulations to 

construct new facilities in areas that the 

Commission has not had an opportunity 

to environmentally review. 

22. INGAA maintains that Order No. 

603 describes auxiliary facilities as 

exempt from the Commission’s 

jurisdiction. In support of its position, 

INGAA points to CNG Transmission 

Corp.,24 in which the Commission 

stated that Order No. 603 ‘‘amends 

Section 2.55(a) to specifically identify 

pig launchers as non-jurisdictional 

auxiliary equipment.’’ 

23. Order No. 603 admittedly refers to 

auxiliary facilities in a manner that 

might be misconstrued as deeming 

auxiliary facilities to be 

nonjurisdictional. However, Order No. 

603’s discussion of auxiliary facilities 

opens with the statement that ‘‘Section 

2.55 defines facilities that are excluded 

from the requirements of section 7(c) of 

the NGA and may, therefore, be 

constructed without additional 

certificate authority.’’ 25 No additional 

certificate authority is needed because 

section 2.55 can be relied upon to 

construct qualifying auxiliary and 

replacement facilities under the 

umbrella of the company’s certificate 

authority for the facilities being 

augmented or replaced. Thus, the 

‘exemption’ provided by section 2.55 is 

not an exemption from NGA 

jurisdiction, but an exemption from the 

need to apply for additional casespecific certificate authorization or rely 

on blanket authorization under NGA 

section 7 for qualifying activities. The 

Commission’s failure to carefully choose 

its words in contexts where the 

jurisdictional status of pig launchers 

and other auxiliary facilities was not 

being challenged does not change the 

fact that all of the facilities addressed by 

section 2.55 are jurisdictional facilities. 

24. INGAA accepts that replacement 

facilities ‘‘assume the certificated 

position previously occupied by the 

facilities being replaced,’’ but does not 

believe auxiliary facilities are subject to 

any certificate authority, and 

consequently characterizes section 

2.55(a) and section 2.55(b) as 

representing ‘‘intrinsically different 

concepts.’’ 26 We find no intrinsic 

difference. The facilities described 

under section 2.55 serve to enhance the 

operation or update the facilities of an 

existing system. Section 2.55(a) 

auxiliary facilities must serve the 

purpose of making a system function 

more efficiently or economically, and 

section 2.55(b) replacements serve to 

improve reliability and safety. Thus, 

conceptually, section 2.55 auxiliary 

facilities and replacement facilities both 

serve the same purpose: They constitute 

relatively modest modifications to a 

system that do not alter the physical 

parameters of or services provided by 

the system. 

25. INGAA maintains that in stating 

that section 2.55(a) auxiliary facilities 

are jurisdictional, the ‘‘Commission 

erred by not considering reasonable 

alternatives to its chosen policy and by 

not giving a reasoned explanation for its 

rejection of such alternatives.’’ 27

INGAA is correct that when embarking 

on a new regulatory initiative, we 

consider various alternatives before we 

act, and then provide a reasoned 

explanation for our choice of action. 

Here, however, in responding to 

INGAA’s petition requesting 

confirmation of its claim that auxiliary 

facilities are nonjurisdictional, we were 

not faced with a choice among policy 

alternatives; instead, we acted to correct 

a misunderstanding of the status of 

section 2.55 facilities by confirming that 

all such facilities are subject to the 

Commission’s jurisdiction under section 

7 of the NGA. Thus, our response did 

not contemplate potential policy 

choices, but clarified the existing policy 

embodied in section 2.55 that provides 

for the installation of auxiliary and 

replacement facilities described in that 

section under the certificate authority 

that authorized the facilities being 

enhanced or replaced. This rulemaking 

proceeding may have served to remind 

some companies of the existing spatial 

limitations on the placement of 

auxiliary and replacement facilities 

under section 2.55, but has not added 

any new additional regulatory 

restrictions on where facilities may be 

constructed under section 2.55.28


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29 INGAA’s Request for Rehearing at 4. 30 INGAA’s Request for Rehearing at 32. 31 Id. at 11 and 43. 32Trunkline Gas Company, Docket No. CP84– 

394–000, letter order signed by the Director of the 

Commission’s Office of Pipeline Regulation, dated 

May 25, 1984; FERC eLibrary Accession No. 

19840601–0118. 33 Id. 

34Order No. 790, FERC Stats. & Regs. ¶ 31,351 at 

P 36. 35Letter signed by the Director of the 

Commission’s Office of Pipeline Regulations, dated 

December 16, 1997; FERC eLibrary Accession No. 

19971223–0120. 36Letter signed by the Director of the 

Commission’s Office of Pipeline Regulation, dated 

April 3, 1998; FERC eLibrary Accession No. 

19980408–0242. 37NOPR, FERC Stats. & Regs. ¶ 32,696 at P 11, 

n.18 and Order No. 790, FERC Stats. & Regs. 

¶ 31,351 at P 35. 38 INGAA’s Request for Rehearing at 32. INGAA 

also claims that based on the cited letter orders 

issued under delegated authority, members of the 

Commission’s staff were aware, when the 

Commission issued Order Nos. 603 and 603–A in 

1999, that companies were making auxiliary 

installations outside existing rights-of-way and 

workspaces. Id. at 11 and 43. 39 INGAA’s April 2, 2012 Petition at 1. 40 INGAA’s Request for Rehearing at 4. 

2. Section 2.55 Siting and 

Construction Limitations 

26. On rehearing, INGAA reiterates its 

argument that Commission staff has 

been aware companies have been 

relying on section 2.55 to install 

auxiliary facilities outside existing 

rights-of-way in some instances, and 

that this claimed awareness on staff’s 

part supports INGAA’s position that our 

Final Rule’s regulatory revisions to 

clarify the right-of-way and workplace 

constraints on auxiliary installations 

constitutes a ‘‘change [to] what had been 

the plain and universal understanding 

of that provision for approximately 60 

years.’’ 29 In support, INGAA cites two 

instances in which Commission staff 

issued a letter order that appears to 

acquiesce to a company’s plans to rely 

on section 2.55 to install auxiliary 

facilities outside an established right-ofway.30 INGAA also claims that based on 

the cited letter orders issued under 

delegated authority, members of the 

Commission’s staff were aware, when 

the Commission issued Order Nos. 603 

and 603–A in 1999, that pipelines were 

making auxiliary installations outside 

existing rights-of-way and 

workspaces.31

27. In the situation underlying the 

first staff letter, a company sought casespecific certificate authorization to add 

a slug catcher (a facility to remove 

liquids from a gas stream) to an existing 

pipeline system.32 Staff determined no 

additional certificate authority was 

needed because the proposed slug 

catcher ‘‘is an auxiliary installation that 

would increase the efficiency and 

enhance the flexibility of operation with 

no apparent change in the capacity of 

the existing Terrebonne System.’’ 33 We 

reiterate our observation from the Final 

Rule that although the application for 

certificate authorization indicated that a 

portion of the proposed slug catcher 

would be located outside the existing 

right-of-way, there is ‘‘no indication that 

the location of the new facilities was 

taken into account in the one-page, twoparagraph staff letter,’’ and staff’s failure 

to recognize that some of the proposed 

facilities would be outside of the 

existing right-of-way appears to have 

been ‘‘an oversight that led to a wrong 

result, since locating any of the planned 

new auxiliary facilities outside the 

existing right-of-way should have 

disqualified the project for purposes of 

section 2.55(a).’’ 34

28. The second instance concerns 

staff’s response to a proposal to install 

cathodic protection equipment. In a 

December 1997 letter, staff responded to 

a company’s description of a new 

project to add cathodic protection to an 

existing pipeline by reminding the 

company that because part of the project 

would be in a new right-of-way, the 

company could not rely on section 

2.55(a), but would have to file a casespecific section 7 certificate 

application.35 In an April 1998 letter, 

staff responded to the same company’s 

description of what appears to be the 

same project, and finds it may proceed 

under section 2.55(a).36 As discussed in 

the Final Rule, these letters are not 

necessarily in conflict, because the 

company may have altered its proposed 

project in response to the first letter so 

as to comply with the right-of-way 

restriction. If not, then as we stated in 

the NOPR and Final Rule, the April 

1998 letter did not reflect Commission 

policy correctly.37

29. INGAA finds our review of these 

letter orders to be ‘‘cursory and 

unconvincing,’’ and insists ‘‘that the 

existence of these delegated orders 

entirely undermines the Commission’s 

foundation for its Final Rule,’’ 38 which 

INGAA characterizes as a disingenuous 

claim that the Commission has not been 

aware that companies have been relying 

on section 2.55 to install auxiliary 

facilities outside existing rights-of-way. 

This characterization is incorrect and is 

also inconsistent with INGAA’s stated 

motive for submitting its petition, which 

was that members of the Commission’s 

staff were taking the position in 

discussions with industry 

representatives that section 2.55(a) only 

applies to auxiliary facilities installed in 

existing rights-of-way using previously 

approved work spaces.39 Further, while 

INGAA’s petition emphasized that some 

companies have relied in good faith on 

the misunderstanding that section 

2.55(a) allows auxiliary facilities to be 

installed in new areas, INGAA’s petition 

did not identify and we are not aware 

of any specific instances where 

companies have disregarded the 

guidance offered by Commission staff. 

30. In any event, our review of the 

two cited letter orders was sufficient to 

establish that if staff concluded in those 

situations that the companies could rely 

on section 2.55(a) to build auxiliary 

facilities outside the existing rights-ofway, then those particular staff 

interpretations were in error. While staff 

makes every effort to accurately reflect 

the Commission’s practice, procedures, 

policy, and regulatory requirements, 

staff’s statements of opinion and 

regulatory interpretations, as INGAA 

and the industry it represents are well 

aware, are not binding on the 

Commission. Further, neither of the two 

unpublished letter orders cited by 

INGAA explicitly articulates a policy of 

allowing section 2.55(a) facilities 

outside an established project boundary 

or has any other precedential value, and 

INGAA provides no other evidence to 

support what it claims is the ‘‘plain and 

universal understanding of [section 

2.55(a)].’’ 40 We are unaware of any 

other staff opinions or issuances under 

delegated authority, much less any 

determinations by the Commission 

itself, that provide support for INGAA’s 

assertions that our Final Rule 

announced a sharp departure from prior 

Commission policy and imposed, rather 

than clarified, the spatial constraints on 

section 2.55(a) facilities. 

31. In clarifying the spatial constraint 

for section 2.55 facilities, we 

commented in the Final Rule that absent 

such a constraint, companies could 

traverse and disturb unexamined areas. 

Specifically, we explained that our goal 

is to ensure that the authorization 

provided by section 2.55 does not 

inadvertently work to deprive the 

Commission of the opportunity to 

conduct an environmental review and 

impose appropriate mitigation measures 

in any situation where a company’s 

construction activities may have adverse 

environmental impacts. Thus, the 

regulations provide that even when all 

planned auxiliary facilities can be 

located entirely within an existing rightof-way, if a company plans to construct 

the auxiliary facilities in conjunction 

with other construction activities 

proposed in a case-specific certificate 

application or under the blanket 

certificate regulations’ prior notice 

provisions, the company may not 


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70062 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations 

41 18 CFR 2.55(a)(2)(ii) and (iii) (2014). See Order 

No. 790, FERC Stats. & Regs. ¶ 31,351 at P 50. 

42 INGAA’s Request for Rehearing at 34. 

43 Id. at 8. 

44Sections 157.206(b)(2)(i)–(xii) require that 

companies planning to undertake construction 

activities under Part 157 blanket certificate 

authority obtain, prior to commencing construction, 

any necessary permits or approvals from and 

comply with conditions imposed by the agencies 

charged with specific NEPA responsibilities under 

the Clean Water Act, Clean Air Act, National 

Historic Preservation Act, Archeological and 

Historic Preservation Act, Coastal Zone 

Management Act, Endangered Species Act, Wild 

and Scenic Rivers Act, National Wilderness Act, 

National Parks and Recreation Act, the MagnusonStevens Fishery Conservation and Management Act, 

and executive orders requiring evaluation of the 

potential effects of actions on floodplains and 

wetlands. 

45See, e.g., Northwest Pipeline Corporation, 68 

FERC ¶ 61,336, at 62,345–46 (1994) (Commission 

staff protested a construction proposal filed under 

the prior notice provisions, withdrawing the protest 

after its environmental concerns were addressed); 

Williams Natural Gas Company, 66 FERC ¶ 62,114 

(1994) (following staff’s protest to Williams’ prior 

notice filing proposing to abandon 19 miles 

pipeline by removal, the Commission’s Director of 

the Office of Pipeline and Producer Regulation 

authorized the activity subject to Williams’ 

implementation of certain mitigation measures and 

environmental conditions); and Natural Gas 

Pipeline Company of America, 64 FERC ¶ 62,041 

(1993) (Commission staff protested Natural’s prior 

notice filing proposing to abandon delivery taps, 

delaying authorization of the abandonment until 

Natural received a permit from the U.S. 

Environmental Protection Agency which included 

conditions addressing the disposal of material 

potentially contaminated with polychlorinated 

biphenyls). 

46See, e.g., Algonquin Gas Transmission 

Company, 57 FERC ¶ 61,052 (1991); West Texas 

Gas, Inc., 62 FERC ¶ 61,039 (1993); and Natural Gas 

Pipeline Company of America, 114 FERC ¶ 61,061 

(2006). 

47Order No. 790, FERC Stats. & Regs. ¶ 31,351 at 

P 22 and n.39. 

undertake the section 2.55 construction 

until the auxiliary facilities have been 

identified and considered by the 

Commission in its environmental 

review in the proceeding on the other 

proposed facilities and the other 

facilities have been authorized.41

32. INGAA replies that independent 

of the Commission’s requirements, 

companies must comply with 

environmental laws imposed by other 

federal and state authorities, and argues 

that in the past these other 

environmental laws have provided 

satisfactory environmental oversight of 

companies’ auxiliary installation 

projects outside existing rights-of-way.42

INGAA asserts, therefore, that there is 

no reason for the Commission to 

conduct NEPA reviews before 

companies undertake auxiliary 

installations involving construction 

activities that will disturb areas not 

previously studied by the Commission. 

33. We have NEPA responsibilities 

with respect to construction activities 

that companies undertake based on 

Commission-granted authorization, and 

we cannot waive these responsibilities 

solely because other agencies may have 

complementary or overlapping NEPA 

responsibilities of their own. INGAA 

objects to what it describes as the 

Commission’s effort to limit the location 

of ‘‘auxiliary installations through 

arguments based on a different pipeline 

activity, the replacement of facilities,’’ 

and asserts that replacement and 

auxiliary ‘‘activities are materially 

different and historically have been 

treated differently by the 

Commission.’’ 43 However, while 

section 2.55(b) replacement projects are 

generally of a larger scale than section 

2.55(a) auxiliary installations and thus 

are more likely to involve significant 

ground disturbance, many activities that 

can qualify for construction under 

section 2.55(a), for example, installation 

of pig launchers/receivers and cathodic 

protection equipment, can also involve 

significant ground disturbance, as well 

as visual, noise, and other impacts. 

Thus, if a company will need to use new 

right-of-way or other areas that have not 

been authorized by the Commission to 

construct auxiliary facilities, the 

company cannot proceed with the 

construction under section 2.55. Rather, 

the company must proceed under the 

Part 157 blanket certificate regulations 

or, if the project will not qualify under 

the blanket certificate regulations, then 

file an application for case-specific 

certificate authorization. By way of 

comparison, whereas section 2.55 does 

not include environmental conditions 

because it does not provide any 

authorization for construction activities 

outside areas that have been or will be 

subject to the Commission’s 

environmental review, the blanket 

certificate regulations, which do 

contemplate such activities, include 

environmental conditions in section 

157.206(b) requiring pipeline companies 

to comply, prior to commencing 

construction, with numerous 

environmental laws enforced by other 

agencies to ensure that sensitive 

environmental areas will not be 

adversely impacted by activities, 

including activities under the automatic 

provisions, that will involve ground 

disturbance or changes to operational 

air and noise emissions.44 Section 

2.55(a) does not include such specific 

requirements because we did not 

contemplate that auxiliary facilities 

would be located outside of areas that 

either have been or will be subject to the 

Commission’s environmental study and 

any appropriate environmental 

mitigation measures. 

34. Section 2.55 and blanket 

certificate authority embody two 

different types of certificate 

authorization. The certificate authority 

for auxiliary installations under section 

2.55(a), which does not include any 

specific environmental conditions, 

derives from either (1) the certificate for 

the existing facilities to be augmented, 

and thus the auxiliary facilities can only 

use areas previously authorized by the 

Commission for the construction of the 

existing facilities, or (2) the certificate 

authority being sought by the company 

for other new facilities, in which case 

both the new facilities and the planned 

auxiliary facilities will be subject to an 

environmental review by the 

Commission. While blanket certificate 

authority can be relied upon to obtain 

new right-of-way and to use previously 

undisturbed areas, any blanket 

certificate construction that would 

involve ground disturbance or changes 

to operational air and noise emissions 

will be subject, as discussed above, to 

section 157.206(b)’s environmental 

conditions. In addition, we note that a 

company’s prior notice blanket 

certificate activities, even those that will 

be confined entirely to an existing rightof-way previously studied and 

authorized by the Commission, can be 

protested by staff based on 

environmental concerns, thus subjecting 

the proposal to additional review.45

35. In practice, we have highlighted 

the difference in section 2.55 and 

blanket certificate activities by rejecting 

companies’ reliance on section 2.55(a) 

to install facilities that do not meet the 

siting or function requirements, thereby 

requiring the companies to rely on 

blanket authorization or case-specific 

certification for such facilities.46

36. In seeking to bolster their position, 

commenters on the NOPR posited 

extreme situations, arguing for example, 

that since the Commission included 

‘‘buildings’’ as an example of a 2.55(a) 

facility, and a new corporate 

headquarters cannot be constructed 

entirely within an existing pipeline 

right-of-way, the Commission could not 

have intended 2.55(a) facilities to be 

confined to existing rights-of-way. The 

Commission responded to this in the 

Final Rule by noting that a corporate 

headquarters is not a natural gas facility; 

thus, such construction does not require 

any certificate authorization under the 

NGA.47 On rehearing, INGAA turns its 

focus to communication towers, arguing 

that since they, like office buildings, 

may be located remotely from the 

pipeline; we should find that they, too, 


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48Our discussion here should provide adequate 

clarification for INGAA, which professes to be 

puzzled by our statement in the Final Rule that 

although ‘‘types of facilities are specifically listed 

in section 2.55(a) [this] does not mean that 

companies can necessarily rely in all instances on 

section 2.55(a) to install them.’’ Order No. 790, 

FERC Stats. & Regs. ¶ 31,351 at P 25. 

49National Fuel’s Request for Rehearing at 6. 

50See INGAA’s Request for Rehearing at 51. 

51See Order No. 790, FERC Stats. & Regs. 

¶ 31,351 at P 46. 

are exempt from Commission 

jurisdiction. We do not agree. 

37. A communication tower 

constructed by an interstate pipeline 

company for the purpose of supporting 

equipment used to monitor (and 

possibly control) the pipeline system’s 

operation is a natural gas facility subject 

to our jurisdiction under the NGA. If the 

tower (or a building, or any facility or 

equipment which serves exclusively to 

make a pipeline’s operations more 

efficient or economical) can be installed 

within an existing (or proposed) 

authorized area, the company can 

proceed under section 2.55(a). However, 

if it will be located outside an 

authorized area, then that facility must 

be constructed under either blanket or 

case-specific certificate authority. 

Although some of the types of facilities 

named in section 2.55(a) have evolved 

significantly since 1949, the function of 

the named facilities remains the same: 

They are incidental additions to an 

interstate transmission system, 

dependent upon and integrated into that 

larger system. Further, section 2.55(a) 

describes qualifying facilities as 

‘‘[i]nstallations . . . which are merely 

auxiliary or appurtenant to an 

authorized or proposed transmission 

pipeline system,’’ indicating that section 

2.55(a) is only intended to apply to 

facilities that will be attached to or 

adjacent to the components of the 

system they support. When a company 

is able to construct facilities meeting 

this description in an area that has been 

or will be reviewed for environmental 

purposes by the Commission, then the 

company may proceed with such 

construction under section 2.55(a). 

However, it may be the case in many 

instances that a company will want or 

need to locate some of the auxiliary 

facilities specifically listed in section 

2.55(a)—in particular, communication, 

pig launching/receiving, and cathodic 

protection equipment—in locations 

requiring the use of additional rights-ofway, larger easements, or temporary 

work spaces that have not been 

included previously in an 

environmental review performed by the 

Commission. In those situations, the 

companies will need to proceed under 

an alternative form of authorization (i.e., 

under a blanket or case-specific 

certificate).48

38. National Fuel asks whether 

‘‘improvements such as buildings, 

roads, and parking lots for central 

offices, field and other offices, 

warehouses, [and] equipment yards’’ 

can qualify under section 2.55(a).49 We 

clarify they can, provided they meet 

section 2.55’s location and function 

requirements. We note the Final Rule 

revised the section 157.202 definition of 

‘‘eligible facility’’ to specify that 

auxiliary installations that will not 

qualify under section 2.55(a) because 

they will not satisfy that section’s 

location or work space constraints may 

qualify for authorization under a 

company’s blanket certificate. 

Companies will need to seek casespecific authorization for auxiliary 

facilities that are also not eligible for 

blanket authorization (e.g., facilities that 

would exceed the cost limits specified 

in section 157.208(d)). 

39. Finally, we note that because 

section 2.55 facilities are constructed 

and operated under the certificate 

authorization for the facilities that they 

augment or replace, prior authorization 

under NGA section 7(b) is necessary 

before a pipeline company can abandon 

auxiliary and replacement facilities 

constructed under section 2.55. INGAA 

complains that we neglected to address 

the ‘‘burden of seeking such 

abandonment authority.’’ 50 The 

requirement for prior authorization 

under section 7(b) to abandon 

certificated facilities is statutory and 

cannot be waived by the Commission. 

Further, while section 157.202(b)(3) of 

the blanket certificate regulations states 

that for purposes of those regulations 

‘‘‘Facility’ does not include the items 

described in section 2.55,’’ we 

explained in the Final Rule that section 

157.202(b)(3) only prevents companies 

from relying on their Part 157 blanket 

certificates to undertake activities, i.e., 

the construction and operation of 

qualifying auxiliary and replacement 

facilities, that qualify under section 

2.55.51 We clarify here that section 

157.202(b)(3) of the blanket certificate 

regulations does not preclude a pipeline 

company from relying on its Part 157 

blanket certificate and the abandonment 

authority provided by section 157.216 to 

abandon facilities constructed under 

section 2.55, provided the abandonment 

activity will meet the applicable 

environmental conditions and cost 

limits (i.e., the facilities to be abandoned 

could be constructed under the blanket 

certificate regulations’ current cost 

limits, regardless of what the original 

construction costs may have been). We 

expect that activities to abandon most 

auxiliary facilities and many 

replacement facilities constructed under 

section 2.55 can satisfy these 

conditions, and thus enable companies 

to go forward with abandonments under 

section 157.216 of the blanket certificate 

regulations. 

3. INGAA’s Response to the NOPR 

40. INGAA objects to our treating its 

January 22, 2013 submission in 

response to the NOPR as a comment on 

the NOPR rather than as a request for 

rehearing of the underlying rejection of 

INGAA’s position regarding the scope of 

authority provided by section 2.55(a). 

41. As described in the Final Rule and 

above, the NOPR was issued in response 

to INGAA’s petition requesting that we 

‘‘affirm’’ that installations of auxiliary 

facilities under section 2.55(a) are not 

restricted to the rights-of-way and 

temporary work spaces used to 

construct the existing facilities that will 

be augmented by the auxiliary facilities. 

We declined to do so, explaining in the 

NOPR that the Commission has never 

viewed section 2.55(a) as providing any 

authorization for pipeline companies to 

construct auxiliary facilities outside 

areas subject to environmental review 

and authorization by the Commission. 

On January 22, 2013, INGAA file a 

pleading styled ‘‘Request for 

Rehearing.’’ However, while the 

Commission’s Office of the Secretary 

issued a tolling order (Order Granting 

Rehearing for Further Consideration) on 

February 20, 2013, such an order is not 

dispositive of the procedural posture of 

the underlying pleading (i.e., issuance 

of a tolling order in response to a 

submission styled as a request for 

rehearing does not constitute a finding 

by the Commission that rehearing 

indeed lies on the issues raised in the 

filing). 

42. In this instance, as noted in the 

Final Rule, the Commission ultimately 

determined to treat the January 22, 2013 

pleading as comments on the NOPR, 

explaining that the NOPR’s clarification 

of the existing scope of the authority 

bestowed by section 2.55(a) did not 

‘‘effect any change [in our regulations]; 

rather, it articulated existing, longstanding constraints and obligations 

with respect to auxiliary installations. 

Because the NOPR does not constitute 

an instant Final Rule [as alleged by 

INGAA], we find no cause to consider 

requests for rehearing in response to the 


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70064 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations 

52Order No. 790, FERC Stats. & Regs. ¶ 31,351 at 

n.19. 

53Order No. 790, FERC Stats. & Regs. ¶ 31,351 at 

P 50. 

54 INGAA’s Request for Rehearing at 41. 

55Order No. 790, FERC Stats. & Regs. ¶ 31,351 at 

P 44. 56 INGAA’s Request for Rehearing at 15 (citing 18 

CFR 157.203(d)(1) (2014)). Section 157.203 of the 

Commission’s regulations requires companies to 

give landowners notice at least 45 days prior to 

commencing construction under its automatic 

blanket certificate authority. A landowner may 

waive the 45-day prior notice requirement in 

writing so long as notice has been provided. 

57Order No. 790, FERC Stats. & Regs. ¶ 31,351 at 

P 63. 58 Id. 59 INGAA’s Request for Rehearing at 16 and 

National Fuel’s Request for Rehearing at 3. 60 18 CFR 157.203(d)(3) (2014). 

NOPR.’’ 52 The Commission’s 

procedural choice to issue a NOPR in 

response to INGAA’s petition and to 

treat its January 22, 2013 submission as 

comments rather than as a rehearing 

request did not deprive INGAA of any 

due process. Issuance of the NOPR 

provided INGAA the opportunity to 

present arguments that the Commission 

should amend section 2.55(a) to expand 

the scope of construction that can be 

done under that section. We also 

considered and responded to the 

concerns and arguments presented in 

INGAA’s January 22, 2013 filing in the 

Final Rule. Further, our issuance of the 

NOPR provided the notice and comment 

forum which INGAA urged was 

required before more rigorous 

enforcement of the section 2.55(a) 

locational restrictions. As explained in 

the Final Rule, we do not intend to look 

back in order to determine whether 

installation of auxiliary facilities prior 

to the effective date of the Final Rule 

conform to section 2.55(a) siting 

limitations or pursue any enforcement 

action with respect to any installations 

prior to the effective date of the Final 

Rule that do not conform to section 

2.55(a) siting limitations, unless it 

comes to our attention that remedial 

environmental measures need to be 

taken.53

4. Compliance With Executive Orders 

43. INGAA repeats its claim that our 

action is inconsistent with Executive 

Orders directing agencies to avoid 

unduly burdensome regulations.54 The 

impetus behind and function of section 

2.55 is to reduce regulatory burdens by 

providing a means for companies to 

install facilities without the need to 

obtain blanket or case-specific 

certificate authorization and our 

clarification of its operation imposes no 

new burden. We acknowledged that 

some additional burden will be 

associated with new landowner 

notification requirements adopted by 

the Final Rule, but we found that the 

anticipated benefits justify this new 

regulation. Further, as discussed below, 

in response to comments on the 

landowner notification requirement 

adopted by the Final Rule, we 

significantly reduce the number of 

instances in which companies will be 

required to contact landowners before 

entering upon their properties. These 

revisions will substantially reduce the 

burden associated with providing prior 

notification. Finally, as previously 

observed, the Commission has directed 

staff to perform an internal assessment 

of the effectiveness of our regulations, as 

we are continually seeking to streamline 

our regulations in order to foster 

competitive markets, facilitate enhanced 

competition, and avoid imposing undue 

burdens on regulated entities or 

unnecessary costs on those entities or 

their customers.55

B. Landowner Notification 

44. The Final Rule adopted 

regulations requiring companies to 

notify landowners prior to initiating 

auxiliary and replacement projects or 

maintenance activities to give 

landowners adequate notice (to the 

extent practicable) of a company 

entering onto their property in order to 

avoid potential conflict between 

landowners and gas companies. 

Specifically, the Final Rule added a new 

section 2.55(c) and revised existing 

section 380.15(c) to require a natural gas 

company to make a good faith effort to 

notify landowners at least five days in 

advance of commencing an auxiliary or 

replacement project or of any 

maintenance that will cause ground 

disturbance. The notice must include: 

(1) A brief description of the activity to 

be conducted or facilities to be added or 

replaced and the expected effects on 

landowners; (2) the name and phone 

number of a company representative 

who is knowledgeable about the project; 

and (3) a description of the 

Commission’s Dispute Resolution 

Division Helpline and its phone 

number, as explained in section 1b.21(g) 

of the Commission’s regulations. 

1. Waiver of Five-Day Prior Notice 

45. INGAA requests we clarify that so 

long as a company provides landowners 

with at least five days advance notice, 

landowners can waive all or part of the 

post-notice waiting period. INGAA 

states that allowance for the waiver 

would be similar to the landowner 

notice waiver provision under the 

blanket certificate regulations, which 

allows a company that has given a 

landowner notice of a project to proceed 

before the end of the required postnotice waiting period, provided the 

landowner gives written approval to do 

so.56

46. We agree that landowners, once 

notified, should be allowed to waive 

any portion of the post-notice waiting 

period by giving written approval. 

Accordingly, we will modify sections 

2.55(c) and 380.15(c) to permit 

landowners to waive the post-notice 

waiting period. 

2. Emergency Exemption to Notice 

Requirement 

47. The Final Rule provided that 

‘‘[f]or activities required to respond to 

an emergency, the five-day prior notice 

period does not apply’’ under sections 

2.55 and 380.15,57 reasoning that 

companies should not hesitate to 

undertake immediate action in an 

emergency situation. However, that any 

events that do not necessitate immediate 

access to system facilities would still be 

subject to a minimum five-day prior 

notice.58

48. INGAA and National Fuel request 

that we clarify the scope of the 

emergency exemption provided by 

sections 2.55(c) and 380.15(c) by 

revising those sections to be consistent 

with the language in section 

157.203(d)(3) of the blanket certificate 

regulations.59 Specifically, section 

157.203(d)(3) states that the requirement 

for prior notification to landowners does 

not apply when a company needs to 

initiate construction activities under 

section 2.55 or maintenance activities 

under section 380.15 done for safety, 

DOT compliance, or environmental or 

unplanned maintenance reasons that are 

not foreseen and that require immediate 

attention by the company.60 We will 

revise sections 2.55(c) and 380.15(c) as 

requested. However, the exemption 

from the requirement for prior notice to 

landowners is only intended to apply in 

unforeseen situations where a company 

needs to take immediate action to 

correct a sudden incompatibility with 

DOT safety requirements or to avoid 

imminent danger or harm to life, 

property, or the environment. Therefore, 

while many routine and scheduled 

activities are safety-related or necessary 

to maintain or come into compliance 

with DOT regulations, such routine, 

foreseeable, or scheduled activities are 

not emergencies, and are not exempt 

from the requirement for prior notice to 

landowners. 

49. National Fuel asserts that if an 

emergency activity is exempt from the 

prior landowner notification 

requirements under section 2.55(c) or 


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61National Fuel’s Request for Rehearing at 4. 62Order No. 790, FERC Stats. & Regs. ¶ 31,351 at 

P 56. 63 INGAA’s Request for Rehearing at 16–17 and 

National Fuel’s Request for Rehearing at 4–5. 64NOPR, FERC Stats. & Regs. ¶ 32,696 at P 30. 

65Order No. 790, FERC Stats. & Regs. ¶ 31,351 at 

P 56. 

66We note that this clarification does not exempt 

companies from complying with the terms of any 

existing easement agreements or any applicable 

state or local laws governing the use of or access 

to property not within a company’s rights-of-way or 

facility sites. 

67 Id. 

68The ‘‘One Call’’ program is a service used by 

public utilities and some private sector companies 

(e.g., oil pipeline and cable television) to provide 

pre-construction information to contractors or other 

maintenance workers on the location of 

underground pipes, cables, and culverts. Similar 

utility-marking programs go by different names in 

different regions. 

69 INGAA’s Request for Rehearing at 17. 

70National Fuel notes that ‘‘to determine and 

mark the precise location of its facilities . . . may 

require some excavation.’’ National Fuel’s Request 

for Rehearing at 3–4. 

71 INGAA’s Request for Rehearing at 17–18. 

72National Fuel’s Request for Rehearing at 6. 

73Order No. 790, FERC Stats. & Regs. ¶ 31,351 at 

P 77 and n.115. 

section 380.15(c), there should be no 

need for a pipeline to rely on and 

comply with the provisions of Part 284, 

Subpart I, of the Commission’s 

regulations.61 We agree and clarify that 

when companies seek to act under 

section 2.55 or section 380.15(c), and 

need to act promptly to respond to an 

emergency, and are thus unable to 

provide landowners with at least five 

days advance notice, then the 

emergency nature of the action 

functions as a waiver of the prior notice 

requirement. Thus, provided that with 

the exception of prior notice, an 

emergency response action meets all 

other section 2.55 or section 380.15(c) 

requirements, a company may proceed 

under section 2.55 or section 380.15(c). 

However, any emergency response 

action that would not qualify under 

section 2.55 or section 380.15(c) (e.g., 

construction which would take place 

outside previously approved areas), 

would require a company to proceed 

under other emergency authority, such 

as Part 284, Subpart I. 

3. Affected Landowners 

50. The Final Rule stated that prior 

notification be provided to ‘‘affected 

landowners,’’ described in sections 

2.55(c) and 380.15(c), as property 

owners that will be ‘‘directly affected 

(i.e., crossed or used), by the proposed 

activity, including all rights-of-way, 

facility sites (including compressor 

stations, well sites, and all aboveground facilities), access roads, pipe and 

contractor yards, and temporary work 

space.’’ 62 INGAA and National Fuel 

request that the Commission clarify that 

‘‘affected landowners’’ only include 

landowners that will be subject to 

ground disturbance on their properties, 

and not landowners whose property is 

merely crossed and not otherwise 

disturbed.63

51. As proposed in the NOPR, section 

2.55(c) and 380.15(c) would have 

required a company to give prior 

notification to all landowners whose 

property would be used or crossed. As 

proposed in the NOPR, sections 2.55(c) 

and 380.15(c) also would have required 

a company to give prior notification to 

owners of abutting properties and the 

owners of residences within 50 feet.64

However, in response to comments on 

the NOPR, the Final Rule revised 

sections 2.55(c) and 380.15(c) to state 

that companies are only required to give 

prior notification to the owners of those 

properties that are crossed or used when 

companies perform ground-disturbing 

activities.65 In response to INGAA’s and 

National Fuel’s comments, we find it is 

appropriate to further revise sections 

2.55(c) and 380.15(c) to specify that 

companies must provide prior notice 

only to the owner of property used for 

a ground-disturbing activity, and not to 

landowners whose property is crossed 

en route to the site of that activity.66

52. INGAA and National Fuel also 

request that the Commission clarify that 

the five-day prior notice requirement 

does not apply when the grounddisturbing activity will occur entirely 

within the fence line of an existing 

above-ground facility site.67 In 

situations where a company’s facilities 

are located inside a fenced area on 

property that the company does not own 

but to which it has easement rights, we 

agree that a requirement of prior notice 

to the landowner is not necessary if all 

ground disturbance will be confined to 

within the fenced area, and we will 

revise sections 2.55(c)(1) and 

380.15(c)(1) accordingly. When any 

ground disturbance caused by a 

company’s activities to install or replace 

equipment under section 2.55 or by 

equipment associated with maintenance 

activities under section 380.15 is 

confined inside the company’s fencedin easement areas, e.g., a compressor 

station or site used for pigging 

equipment, the activities do not present 

the same potentially hazardous 

situations or inconvenience to a 

landowner as ground-disturbing 

activities in an unfenced area, e.g., the 

replacement of pipe under the 

landowner’s driveway. However, even 

when companies’ ground-disturbing 

activities will be within their fenced-in 

easement areas, as a matter of courtesy, 

we encourage companies to give prior 

notice to landowners to the extent 

practicable. 

4. One-Call Obligations 

53. INGAA requests we clarify that 

the requirement for prior notice to 

landowners adopted by the Final Rule 

for activities under sections 2.55 and 

380.15 does not apply to ‘‘One Call’’ 

obligations.68 INGAA states that such 

programs require companies to mark 

their facilities within 48 to 72 hours of 

receiving notification that a landowner 

or third party will be digging near 

natural gas facilities to prevent damage. 

Therefore, INGAA argues that a 

company cannot wait five days to 

comply with its ‘‘One Call’’ 

obligations.69 We agree that the ‘‘One 

Call’’ obligations do not fall under the 

Final Rule’s landowner notification 

requirements. This is because merely 

marking the location of buried natural 

gas facilities (typically with flags or 

spray paint) does not involve a ground 

disturbance. However, in the event a 

company’s response to a ‘‘One Call’’ 

request results in ground-disturbing 

activity to locate, relocate, or isolate any 

of its facilities,70 then the exemption 

provided in the prior notice provisions 

for emergency activities would apply. 

5. Burden Resulting From the 

Landowner Notification Requirement 

54. INGAA claims that we have not 

met our obligation to estimate the 

burden of the Final Rule’s notification 

requirement in a way that is not 

arbitrary or capricious, and then weigh 

the benefit of the rule against that 

burden.71 In this regard, National Fuel 

states that our use of an estimate based 

solely on the number of section 2.55(a) 

auxiliary installation activities 

performed each year (which, it points 

out, are construction activities) to derive 

a reasonable estimate of the number of 

ground-disturbing activities under 

section 2.55 and section 380.15 that 

would require landowner notification, is 

arbitrary and too low.72

55. To estimate the burden of the 

Final Rule’s section 2.55 and section 

380.15 landowner notification 

requirements, Commission staff 

surveyed nine jurisdictional companies, 

and based on that sample, estimated 

that all 165 jurisdictional companies 

perform approximately 7,605 auxiliary 

installation projects each year under 

section 2.55(a), including activities that 

do not involve ground disturbance.73

While we recognize that the number of 

maintenance activities undertaken by a 

company may far exceed the number of 

its auxiliary installations, we believe 


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74NOPR, FERC Stats. & Regs. ¶ 32,696 at P 39. 

75National Fuel’s Request for Rehearing at 6. 

76 Id. 

77See Order No. 790, FERC Stats. & Regs. 

¶ 31,351 at P 79. 

78 Id. 

79See, e.g., Golden Triangle Storage, Inc.’s March 

5, 2013 Comments on the NOPR at 4; INGAA’s 

March 5, 2013 Comments on the NOPR at 13–14; 

MidAmerican Energy Pipeline Group’s March 5, 

2013 Comments on the NOPR at 4; National Fuel’s 

March 5, 2013 Comments on the NOPR at 4; 

Southern Star Central Gas Pipeline, Inc.’s March 5, 

2013 Comments on the NOPR at 6–7; and WBI 

Energy Transmission Inc.’s March 5, 2013 

Comments on the NOPR at 7. 

80 INGAA’s Request for Rehearing at 19–20. 

ground-disturbing activities for 

maintenance purposes under section 

380.15, like ground-disturbing activities 

to install auxiliary facilities under 

section 2.55(a) and replace facilities 

under section 2.55(b), are significantly 

fewer in number than the activities 

under those sections that do not involve 

ground disturbance. We also believe 

that ground-disturbing activities, 

including ground-disturbing 

maintenance, generally take advance 

planning.74 Further, companies have 

long been subject to the requirement to 

give landowners notice of certain 

planned activities, and therefore 

presumably already have the 

information, personnel, and other 

resources necessary to enable them to 

satisfy those other, long-standing 

landowner notification requirements. 

56. In view of these considerations, 

we believe our estimate in the Final 

Rule of the total number of all 

companies’ annual auxiliary 

installations under section 2.55(a) that 

involve ground disturbance was 

reasonable, and that it also was 

reasonable to multiply that number by 

two to estimate the total annual number 

of activities—including all auxiliary 

installations under sections 2.55(a), 

replacement projects under section 

2.55(b), and maintenance activities 

under section 380.15—that will involve 

ground disturbance and will therefore 

require prior notice to landowners. 

Further, we believe the reasonableness 

of our burden estimate in the Final Rule 

is also supported by the clarification in 

this order that ground-disturbing 

activities are exempt from the prior 

notice requirement in emergency 

situations and in situations where all 

ground disturbances will be confined 

entirely to areas within the fence line of 

an existing above-ground facility site. 

57. National Fuel states that every 

year it performs ‘‘thousands’’ of grounddisturbing maintenance activities that 

will now require landowner 

notification.75 National Fuel fears that 

activities such as maintaining existing 

access roads and existing erosion 

control structures will require it to 

satisfy unduly burdensome landowner 

notification requirements.76 We 

recognize that some activities to 

maintain existing access roads (e.g., 

scraping to remove old asphalt and 

resurfacing) or existing erosion control 

structures (e.g., pushing back soil or 

rocks that were intended to prevent 

erosion) may not involve a significant 

amount of ground disturbance. 

However, such activities require the use 

of bulldozers, backhoes, dump trucks 

and other equipment that can present 

safety hazards and cause inconvenience 

to landowners. Therefore, we will not 

exempt ground-disturbing activities 

under section 380.15 to maintain 

existing facilities from the landowner 

notification requirement. 

58. While INGAA and National Fuel 

insist that we have underestimated the 

burden that the landowner notification 

will cause the industry, this assertion 

assumes that most jurisdictional 

companies were not already notifying 

landowners when work is to be 

performed on their property, whether 

such notification is required or not. 

59. Section 157.6(d)(1) of the 

regulations requires applicants for casespecific certificate authority for 

construction projects to notify all 

landowners that will be affected by the 

project. Section 157.203(d) of the 

blanket certificate regulations requires 

that companies give landowners notice 

of all projects subject to those 

regulations’ prior notice provisions. 

Thus, companies likely have a database 

of landowners dating from the time 

many of their facilities were originally 

put in service. As discussed in the Final 

Rule, we believe most companies 

maintain and update these databases 

because, regardless of their size, they 

need to know (to enhance, replace, and 

maintain their facilities and to respond 

to emergencies) precisely where their 

rights-of-way lie, how to get to their 

facilities, and how to contact the owners 

of the properties on which their 

facilities are located.77 As also 

discussed in the Final Rule, companies 

need to periodically update landowner 

information to be able to comply with 

DOT’s Pipeline and Hazardous 

Materials Safety Administration’s 

(PHMSA) biennial reporting 

requirement.78 Therefore, to identify the 

landowners to notify, companies will 

not be starting from scratch, but instead 

should be able to rely on the landowner 

records previously compiled to satisfy 

the Commission’s and PHMSA’s 

notification requirements. Since 

PHMSA’s notification requirement is 

ongoing, a company’s efforts to update 

portions of its landowner database as 

needed to meet the section 2.55 and 

section 380.15 notice provisions can be 

expected to result in a corresponding 

reduction in the company’s efforts 

necessary to comply with PHMSA’s 

notification requirement. 

60. Further, comments on the NOPR 

call attention to some companies’ 

ongoing community relations programs, 

which like the required PHMSA report, 

serve to inform landowners of their 

plans for construction and maintenance 

activities in coming months.79 While 

these notifications generally do not 

include specific details regarding the 

work that may take place on a 

landowner’s property and only provide 

an approximate time period for when 

the work will be done, companies 

nevertheless have to identify 

landowners to send out these 

notifications. Companies should be able 

to use landowner lists developed in 

connection with community relations 

programs and in conjunction with 

compliance with PHMSA requirements 

as a basis for meeting the prior notice 

requirements of sections 2.55(c) and 

380.15(c). In our burden estimate, we 

did not attempt to account for lists that 

companies may have on hand to send 

information to landowners as part of 

community relations or PHMSA 

compliance. 

C. Consistency With the Commission’s 

Regulations 

61. INGAA requests that the 

Commission revise certain regulations 

to ensure regulatory consistency as a 

result of the Final Rule. INGAA notes 

that section 157.206(b)(1) of the 

Commission’s regulations for blanket 

certificate projects includes a general 

reference to section 380.15 80 and 

proposes this be revised to specifically 

refer to sections 380.15(a) and (b). We 

agree and will revise section 

157.206(b)(1) accordingly. This order 

and the Final Rule reduced the number 

of landowners to which the NOPR 

would have required that companies 

give prior notice for purposes of section 

2.55 and section 380.15 activities by 

modifying the definition of ‘‘affected 

landowners.’’ ‘‘Affected landowners’’ 

now excludes owners of properties that 

will need to be crossed but not 

otherwise disturbed, as well as owners 

of abutting properties and owners of 

properties that contain residences 

within 50 feet of planned work areas 

where no ground-disturbing work will 

occur; in contrast the blanket certificate 

regulations’ landowner notification 


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81The requirement in section 157.203(d)(1) for at 

least 45 days prior notice is separate from the 

requirement in section 157.205(d)(2) that projects 

exceeding the automatic cost limit be publically 

noticed by the Commission at least 60 days in 

advance, with the project sponsor to notify affected 

landowners the earlier of (1) three days from when 

the Commission assigns a docket number to the 

proposed project or (2) when the project sponsor 

initiates easement negotiations for the proposed 

project. 

82As previously discussed, whereas section 2.55 

and section 380.15 of the regulations do not include 

any specific environmental conditions because 

activities under those sections are limited to areas 

subject to environment review by the Commission, 

an activity cannot go forward under the blanket 

certificate regulations unless the company has 

satisfied all of the specific environmental 

conditions set forth in section 157.206 of the 

blanket certificate regulations. 

83 INGAA’s Request for Rehearing at 20. 

84 44 U.S.C. 3501–3520 (2012). 

85OMB’s regulations at 5 CFR 1320.3(c)(4)(i) 

(2014) require that ‘‘[a]ny recordkeeping, reporting, 

or disclosure requirement contained in a rule of 

general applicability is deemed to involve ten or 

more persons.’’ 

86 5 CFR 1320 (2014). 

87Regulations Implementing the National 

Environmental Policy Act of 1969, Order No. 486, 

52 FR 47897 (December 17, 1987), FERC Stats. & 

Regs., Regulations Preambles 1986–1990 ¶ 30,783 

(1987). 

88 18 CFR 380.4 (2014). 

89 18 CFR 380.4(a)(1) and (5) (2014). 

requirement relies on the definition of 

affected landowners in section 

157.6(d)(2) of the regulations, which 

includes these additional property 

owners. Further, section 157.203(d)(1) 

requires at least 45 days prior notice to 

landowners for automatic blanket 

projects,81 while the new landowner 

notification requirement for section 2.55 

and section 380.15 activities requires a 

minimum of only five days prior 

notice.82

62. INGAA also notes that the Final 

Rule replaced the NOPR’s proposed 

term ‘‘original’’ in section 2.55(b)(1)(ii) 

with the term ‘‘existing’’ but did not 

make similar changes to Appendix A of 

Part 2. For consistency, INGAA requests 

that the Commission replace the term 

‘‘original’’ with ‘‘existing’’ in Appendix 

A of Part 2.83 We agree and will revise 

Appendix A of Part 2. 

III. Information Collection Statement 

63. The Paperwork Reduction Act 

(PRA) 84 requires each federal agency to 

seek and obtain Office of Management 

and Budget (OMB) approval before 

undertaking a collection of information 

directed to ten or more persons or 

contained in a rule of general 

applicability.85 The OMB’s regulations 

implementing the PRA require approval 

of certain information collection 

requirements imposed by agency 

rules.86

64. The Commission submitted the 

Final Rule’s information collection 

statement for landowner notification 

requirements under sections 2.55, 

157.203(d)(3)(i), and 380.15 of the 

regulations to OMB for its review and 

approval, and OMB granted approval 

under OMB Control No. 1902–0128. 

While this rule clarifies certain aspects 

of the existing information collection 

requirements for landowner 

notification, it does not add to these 

requirements. Accordingly, a copy of 

this Final Rule will be sent to OMB for 

informational purposes only. 

IV. Environmental Analysis 

65. The Commission is required to 

prepare an Environmental Assessment 

or an Environmental Impact Statement 

for any action that may have a 

significant adverse effect on the human 

environment.87 The Commission has 

categorically excluded certain actions 

from these requirements as not having a 

significant effect on the human 

environment.88 Generally, the 

regulatory actions taken in this 

rulemaking proceeding fall within the 

categorical exclusions in the 

Commission’s regulations for actions 

that are clarifying, corrective, or 

procedural and for information 

gathering, analysis, and 

dissemination.89 Accordingly, an 

environmental review is not necessary 

and has not been prepared in 

connection with this rulemaking. 

V. Document Availability 

66. In addition to publishing the full 

text of this document in the Federal 

Register, the Commission provides all 

interested persons an opportunity to 

view and/or print the contents of this 

document via the Internet through 

FERC’s Home Page (http://

www.ferc.gov) and in FERC’s Public 

Reference Room during normal business 

hours (8:30 a.m. to 5:00 p.m. Eastern 

time) at 888 First Street NE., Room 2A, 

Washington, DC 20426. 

67. From FERC’s Home Page on the 

Internet, this information is available on 

eLibrary. The full text of this document 

is available on eLibrary in PDF and 

Microsoft Word format for viewing, 

printing, and/or downloading. To access 

this document in eLibrary, type the 

docket number excluding the last three 

digits of this document in the docket 

number field. 

68. User assistance is available for 

eLibrary and the FERC’s Web site during 

normal business hours from FERC 

Online Support at (202) 502–6652 (toll 

free at 1–866–208–3676) or email at 

ferconlinesupport@ferc.gov, or the 

Public Reference Room at (202) 502– 

8371, TTY (202) 502–8659. Email the 

Public Reference Room at 

public.referenceroom@ferc.gov. 

VI. Effective Date and Congressional 

Notification 

69. These regulations are effective 

January 26, 2015. The Commission has 

determined that this rule is not a ‘‘major 

rule’’ as defined in section 351 of the 

Small Business Regulatory Enforcement 

Fairness Act of 1996. 

List of Subjects 

18 CFR Part 2 

Administrative practice and 

procedure, and Reporting and 

recordkeeping requirements. 

18 CFR Part 157 

Administrative practice and 

procedure, Natural gas, and Reporting 

and recordkeeping requirements. 

18 CFR Part 380 

Environmental impact statements, 

and Reporting and recordkeeping 

requirements. 

By the Commission. 

Nathaniel J. Davis, Sr., 

Deputy Secretary. 

In consideration of the foregoing, the 

Commission amends parts 2, 157, and 

380, chapter I, title 18, Code of Federal 

Regulations, as follows: 

PART 2—GENERAL POLICY AND 

INTERPRETATIONS 

■ 1. The authority citation for part 2 

continues to read as follows: 

Authority: 5 U.S.C. 601; 15 U.S.C. 717– 

717z, 3301–3432; 16 U.S.C. 792–828c, 2601– 

2645, 42 U.S.C. 4321–4370h, 7101–7352. 

■ 2. Amend § 2.55 by revising 

paragraphs (c)(1) and (2) to read as 

follows: 

§ 2.55 Definition of terms used in section 

7(c). 

* * * * * 

(c) * * * 

(1)(i) No activity described in 

paragraphs (a) and (b) of this section 

that involves ground disturbance is 

authorized unless a company makes a 

good faith effort to notify in writing 

each affected landowner, as noted in the 

most recent county/city tax records as 

receiving the tax notice, whose property 

will be used and subject to ground 

disturbance as a result of the proposed 

activity, at least five days prior to 

commencing any activity under this 

section. A landowner may waive the 

five-day prior notice requirement in 

writing, so long as the notice has been 

provided. No landowner notice under 

this section is required: 


wreier-aviles on DSK4TPTVN1PROD with RULES
70068 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations 

(A) If all ground disturbance will be 

confined entirely to areas within the 

fence line of an existing above-ground 

site of facilities operated by the 

company; or 

(B) For activities done for safety, DOT 

compliance, or environmental or 

unplanned maintenance reasons that are 

not foreseen and that require immediate 

attention by the company. 

(ii) The notification shall include at 

least: 

(A) A brief description of the facilities 

to be constructed or replaced and the 

effect the activity may have on the 

landowner’s property; 

(B) The name and phone number of a 

company representative who is 

knowledgeable about the project; and 

(C) A description of the Commission’s 

Dispute Resolution Division Helpline, 

which an affected person may contact to 

seek an informal resolution of a dispute 

as explained in section 1b.21(g) of the 

Commission’s regulations and the 

Dispute Resolution Division Helpline 

number. 

(2) ‘‘Affected landowners’’ include 

owners of interests, as noted in the most 

recent county/city tax records as 

receiving tax notice, in properties 

(including properties subject to rightsof-way and easements for facility sites, 

compressor stations, well sites, and all 

above-ground facilities, and access 

roads, pipe and contractor yards, and 

temporary work space) that will be 

directly affected by (i.e., used) and 

subject to ground disturbance as a result 

of activity under this section. 

* * * * * 

■ 3. Revise appendix A to part 2 to read 

as follows: 

Appendix A to Part 2—Guidance for 

Determining the Acceptable 

Construction Area for Auxiliary and 

Replacement Facilities 

These guidelines shall be followed to 

determine what area may be used to 

construct the auxiliary or replacement 

facility. Specifically, they address what areas, 

in addition to the permanent right-of-way, 

may be used. 

An auxiliary or replacement facility must 

be within the existing right-of-way or facility 

site as specified by § 2.55(a)(1) or 

§ 2.55(b)(1)(ii). Construction activities for the 

auxiliary or replacement facility can extend 

outside the current permanent right-of-way if 

they are within the temporary and permanent 

right-of-way and associated work spaces 

authorized for the construction of the 

existing installation. 

If documentation is not available on the 

location and width of the temporary and 

permanent rights-of-way and associated work 

spaces that were used to construct the 

existing facility, the company may use the 

following guidance for the auxiliary 

installation or replacement, provided the 

appropriate easements have been obtained: 

a. Construction should be limited to no 

more than a 75-foot-wide right-of-way 

including the existing permanent right-ofway for large diameter pipeline (pipe greater 

than 12 inches in diameter) to carry out 

routine construction. Pipeline 12 inches in 

diameter and smaller should use no more 

than a 50-foot-wide right-of-way. 

b. The temporary right-of-way (working 

side) should be on the same side that was 

used in constructing the existing pipeline. 

c. A reasonable amount of additional 

temporary work space on both sides of roads 

and interstate highways, railroads, and 

significant stream crossings and in side-slope 

areas is allowed. The size should be 

dependent upon site-specific conditions. 

Typical work spaces are: 

Item Typical extra area 

(width/length) 

Two lane road 

(bored).

25–50 by 100 feet. 

Four lane road 

(bored).

50 by 100 feet. 

Major river (wet cut) .. 100 by 200 feet. 

Intermediate stream 

(wet cut).

50 by 100 feet. 

Single railroad track .. 25–50 by 100 feet. 

d. The auxiliary or replacement facility 

must be located within the permanent rightof-way or, in the case of nonlinear facilities, 

the cleared building site. In the case of 

pipelines this is assumed to be 50 feet wide 

and centered over the pipeline unless 

otherwise legally specified. 

However, use of the above guidelines for 

work space size is constrained by the 

physical evidence in the area. Areas 

obviously not cleared during the existing 

construction, as evidenced by stands of 

mature trees, structures, or other features that 

exceed the age of the facility being replaced, 

should not be used for construction of the 

auxiliary or replacement facility. 

If these guidelines cannot be met, the 

company should consult with the 

Commission’s staff to determine if the 

exemption afforded by § 2.55 may be used. If 

the exemption may not be used, construction 

authorization must be obtained pursuant to 

another regulation under the Natural Gas Act. 

PART 157—APPLICATIONS FOR 

CERTIFICATES OF PUBLIC 

CONVENIENCE AND NECESSITY AND 

FOR ORDERS PERMITTING AND 

APPROVING ABANDONMENT UNDER 

SECTION 7 OF THE NATURAL GAS 

ACT 

■ 4. The authority citation for part 157 

continues to read as follows: 

Authority: 15 U.S.C. 717–717z. 

■ 5. Amend § 157.206 by revising 

paragraph (b)(1) to read as follows: 

§ 157.206 Standard Conditions. 

* * * * * 

(b) * * * 

(1) The certificate holder shall adopt 

the requirements set forth in § 380.15(a) 

and (b) of this chapter for all activities 

authorized by the blanket certificate and 

shall issue the relevant portions thereof 

to construction personnel, with 

instructions to use them. 

* * * * * 

PART 380—REGULATIONS 

IMPLEMENTING THE NATIONAL 

ENVIRONMENTAL POLICY ACT 

■ 6. The authority citation for part 380 

continues to read as follows: 

Authority: 42 U.S.C. 4321–4370h, 7101– 

7352; E.O. 12009, 3 CFR 1978 Comp., p. 142. 

■ 7. Amend § 380.15 by revising 

paragraphs (c)(1) and (2) to read as 

follows: 

§ 380.15 Siting and maintenance 

requirements. 

* * * * * 

(c) * * * 

(1)(i) No activity described in 

paragraphs (a) and (b) of this section 

that involves ground disturbance is 

authorized unless a company makes a 

good faith effort to notify in writing 

each affected landowner, as noted in the 

most recent county/city tax records as 

receiving the tax notice, whose property 

will be used and subject to ground 

disturbance as a result of the proposed 

activity, at least five days prior to 

commencing any activity under this 

section. A landowner may waive the 

five-day prior notice requirement in 

writing, so long as the notice has been 

provided. No landowner notice under 

this section is required: 

(A) If all ground disturbance will be 

confined entirely to areas within the 

fence line of an existing above-ground 

site of facilities operated by the 

company; or 

(B) For activities done for safety, DOT 

compliance, or environmental or 

unplanned maintenance reasons that are 

not foreseen and that require immediate 

attention by the company. 

(ii) The notification shall include at 

least: 

(A) A brief description of the facilities 

to be constructed or replaced and the 

effect the activity may have on the 

landowner’s property; 

(B) The name and phone number of a 

company representative who is 

knowledgeable about the project; and 

(C) A description of the Commission’s 

Dispute Resolution Division Helpline, 

which an affected person may contact to 

seek an informal resolution of a dispute 

as explained in section 1b.21(g) of the 

Commission’s regulations and the 

Dispute Resolution Division Helpline 

number. 


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Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations 70069 

1 16 U.S.C. 824o. 

2Reliability Standards for Physical Security 

Measures, 146 FERC ¶ 61,166 (2014) (March 7 

Order). 

3 16 U.S.C. 824o(d)(5). 

4 Id. 824o(e). 

5March 7 Order, 146 FERC ¶ 61,166 at P 11. 

6 Id. 

(2) ‘‘Affected landowners’’ include 

owners of interests, as noted in the most 

recent county/city tax records as 

receiving tax notice, in properties 

(including properties subject to rightsof-way and easements for facility sites, 

compressor stations, well sites, and all 

above-ground facilities, and access 

roads, pipe and contractor yards, and 

temporary work space) that will be 

directly affected by (i.e., used) and 

subject to ground disturbance as a result 

of activity under this section. 

* * * * * 

[FR Doc. 2014–27907 Filed 11–24–14; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Part 40 

[Docket No. RM14–15–000; Order No. 802] 

Physical Security Reliability Standard 

AGENCY: Federal Energy Regulatory 

Commission, Energy. 

ACTION: Final rule. 

SUMMARY: The Federal Energy 

Regulatory Commission (Commission) 

approves Reliability Standard CIP–014– 

1 (Physical Security). The North 

American Electric Reliability 

Corporation, the Commission-certified 

Electric Reliability Organization, 

submitted Reliability Standard CIP– 

014–1 for Commission approval in 

response to a Commission order issued 

on March 7, 2014. The purpose of 

Reliability Standard CIP–014–1 is to 

enhance physical security measures for 

the most critical Bulk-Power System 

facilities and thereby lessen the overall 

vulnerability of the Bulk-Power System 

against physical attacks. In addition, the 

Commission directs NERC to develop 

one modification to Reliability Standard 

CIP–014–1 and submit an informational 

filing. 

DATES: This rule is effective January 26, 

2015. 

FOR FURTHER INFORMATION CONTACT: 

Regis Binder (Technical Information), 

Office of Electric Reliability, Division 

of Reliability Standards and Security, 

Federal Energy Regulatory 

Commission, 888 First Street NE., 

Washington, DC 20426, Telephone: 

(301) 665–1601, 

Regis.Binder@ferc.gov. 

Matthew Vlissides (Legal Information), 

Office of the General Counsel, Federal 

Energy Regulatory Commission, 888 

First Street NE., Washington, DC 

20426, Telephone: (202) 502–8408, 

Matthew.Vlissides@ferc.gov. 

SUPPLEMENTARY INFORMATION: 

Order No. 802 

Final Rule 

(Issued November 20, 2014) 

1. Pursuant to section 215 of the 

Federal Power Act (FPA), the 

Commission approves Reliability 

Standard CIP–014–1 (Physical 

Security).1 The North American Electric 

Reliability Corporation (NERC), the 

Commission-certified Electric 

Reliability Organization (ERO), 

submitted Reliability Standard CIP– 

014–1 for Commission approval in 

response to a Commission order issued 

on March 7, 2014.2 The purpose of 

Reliability Standard CIP–014–1 is to 

enhance physical security measures for 

the most critical Bulk-Power System 

facilities and thereby lessen the overall 

vulnerability of the Bulk-Power System 

facilities against physical attacks. In 

addition to approving Reliability 

Standard CIP–014–1, as discussed 

below, the Commission directs NERC to 

submit an informational filing and, 

pursuant to FPA section 215(d)(5), 

directs NERC to develop a modification 

to Reliability Standard CIP–014–1.3

I. Background 

A. Section 215 and Mandatory 

Reliability Standards 

2. Section 215 of the FPA requires the 

Commission to certify an ERO to 

develop mandatory and enforceable 

Reliability Standards, subject to 

Commission review and approval. Once 

approved, the Reliability Standards may 

be enforced in the United States by the 

ERO, subject to Commission oversight, 

or by the Commission independently.4

B. March 7 Order 

3. In the March 7 Order, the 

Commission determined that physical 

attacks on the Bulk-Power System could 

adversely impact the reliable operation 

of the Bulk-Power System, resulting in 

instability, uncontrolled separation, or 

cascading failures. Moreover, the 

Commission observed that the then 

current Reliability Standards did not 

specifically require entities to take steps 

to reasonably protect against physical 

security attacks on the Bulk-Power 

System. Accordingly, to carry out 

section 215 of the FPA and to provide 

for the reliable operation of the BulkPower System, the Commission directed 

NERC, pursuant to FPA section 

215(d)(5), to develop and file for 

approval proposed Reliability Standards 

that address threats and vulnerabilities 

to the physical security of critical 

facilities on the Bulk-Power System. 

4. The March 7 Order indicated that 

the Reliability Standards should require 

owners or operators of the Bulk-Power 

System to take at least three steps to 

address the risks that physical security 

attacks pose to the reliable operation of 

the Bulk-Power System. Specifically, 

the March 7 Order directed that the 

Reliability Standards should require: (1) 

Owners or operators of the Bulk-Power 

System to perform a risk assessment of 

their systems to identify their ‘‘critical 

facilities’’; (2) owners or operators of the 

identified critical facilities to evaluate 

the potential threats and vulnerabilities 

to those identified facilities; and (3) 

those owners or operators of critical 

facilities to develop and implement a 

security plan designed to protect against 

attacks to those identified critical 

facilities based on the assessment of the 

potential threats and vulnerabilities to 

their physical security. 

5. The March 7 Order stated that the 

risk assessment used by an owner or 

operator to identify critical facilities 

should be verified by an entity other 

than the owner or operator, such as by 

NERC, the relevant Regional Entity, a 

reliability coordinator, or another 

entity.5 In addition, the March 7 Order 

indicated that the Reliability Standards 

should include a procedure for the 

verifying entity, as well as the 

Commission, to add or remove facilities 

from an owner’s or operator’s list of 

critical facilities.6 The March 7 Order 

further stated that the determination of 

threats and vulnerabilities and the 

security plan should be reviewed by 

NERC, the relevant Regional Entity, the 

reliability coordinator, or another entity 

with appropriate expertise. 

6. The March 7 Order stated that, 

because the three steps of compliance 

with the contemplated Reliability 

Standards could contain sensitive or 

confidential information that, if released 

to the public, could jeopardize the 

reliable operation of the Bulk-Power 

System, NERC should include in the 

Reliability Standards a procedure that 

will ensure confidential treatment of 

sensitive or confidential information but 

still allow for the Commission, NERC 

and the Regional Entities to review and 

inspect any information that is needed 


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