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NGI Article on TW Ruling
NGI's Daily Gas Price Index published : October 29, 2001 ALJ Clears Transwestern of Market Power Charges A FERC administrative law judge has found no improprieties, nor evidence of the exercise of market power in negotiated rate contracts between Transwestern Pipeline and two shippers on its system, which resulted in the shippers being charged as much as $27/MMBtu last February, far in excess of the pipeline's allowed transportation rate of 38 cents/MMBtu (RP97-288-009). ALJ Jacob Leventhal had only one fault to find, and that was with Transwestern's method of posting capacity. The judge said, and Transwestern agreed, to modify its tariff "so that all posting, bidding and award procedures are set forth in a separate provision with an appropriate caption" on its Internet bulletin board. Shippers had said that reviewing capacity on the Transwestern web site was "a tortuous process." Indicated Shippers claimed Transwestern's inadequate capacity posting and award procedures did not provide all interested parties with an opportunity to bid for the capacity that was available. While "both Indicated Shippers and (FERC) Staff find it curious that SET (Sempra Energy Trading) and Richardson (Products Co.) were the sole bidders on the contracts awarded to each of them...curiosity does not translate into proof," the judge said. Witnesses in the expedited hearing testified no bids were considered in advance of the capacity posting. The judge subsequently found the capacity was awarded in a manner consistent with Transwestern's tariff. Similarly, Levanthal could find no evidence that Transwestern exercised market power in negotiating the rates with shippers or withholding or threatening to withhold capacity. The capacity was available at recourse rates, and the shippers knew those rates were available. "Staff's arguments really are criticisms of the posting and award procedures, but do not demonstrate the exercise of market power." The two shippers said they made a business decision to propose the "index-to-index" formula that produced the higher rates, rather than take the recourse rate "to minimize any risk on transportation options." The index-to-index formula refers to taking the difference between the daily published commodity prices at two different points and subtracting to get the transportation rate between them. In this case the two points were the San Juan Basin and the SoCal Needles delivery point. The case was set for expedited hearing last summer by the commissioners acting on staff recommendations.