[Federal Register: May 28, 2003 (Volume 68, Number 102)]
[Rules and Regulations]
[Page 31596-31605]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28my03-4]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 153, 157, and 375
[Docket Nos. RM03-4-000 and AD02-14-000; Order No. 633]
Emergency Reconstruction of Interstate Natural Gas Facilities
Under the Natural Gas Act
Issued May 19, 2003.
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Final rule.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
amending its regulations to enable natural gas interstate pipeline
companies to replace mainline facilities using a route other than the
existing right-of-way, and to commence construction without prior
notice and without project cost constraints, when immediate action is
required to restore service in an emergency due to a sudden
unanticipated loss of natural gas or capacity for protection of life or
health or for maintenance of physical property. In addition, the
Commission is revising reporting requirements so that a natural gas
company, in responding to an emergency, would submit a report
describing intended actions to the Commission in advance of commencing
construction, rather than reporting actions taken after the fact, as is
currently the case. The Commission revises its regulations to state
that the requirement to provide landowners with 30-day prior notice is
met if all affected landowners grant easements. The Commission is also
amending its regulations to specify that the revisions related to
emergency reconstruction will apply to facilities subject to Section 3
of the Natural Gas Act (NGA). Finally, the Commission is amending its
regulations to delegate authority to waive certain landowner notice
requirements and to make certain judgments in the field regarding the
construction and operation of gas facilities. An important objective of
the final rule is the reconciliation of the Commission's regulatory
responsibilities under its enabling statutes and federal environmental
and safety laws with the need to protect persons and property.
EFFECTIVE DATE: The rule will become effective July 14, 2003.
FOR FURTHER INFORMATION CONTACT:
Robert Christin, Office of the General Counsel, Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202) 502-6022.
Gordon Wagner, Office of the General Counsel, Federal Energy Regulatory
Commission, 888 First Street, NE., Washington, DC 20426, (202) 502-
8947.
Berne Mosley, Office of Energy Projects, Federal Energy Regulatory
Commission, 888 First Street, NE., Washington, DC 20426, (202) 502-
8625.
SUPPLEMENTARY INFORMATION: Before Commissioners: Pat Wood, III,
Chairman; William L. Massey, and Nora Mead Brownell.
Introduction
1. The Federal Energy Regulatory Commission (Commission) is
amending part 157, subpart F, of its regulations to enable natural gas
interstate pipeline companies to replace mainline facilities using a
route other than the existing right-of-way, and to commence
construction without 45-day prior
[[Page 31597]]
notice and without project cost constraints, when immediate action is
required to restore service in an emergency due to a sudden
unanticipated loss of natural gas or capacity for protection of life or
health or for maintenance of physical property. In addition, the
Commission is revising reporting requirements so that a natural gas
company acting under part 157 in responding to an emergency would
submit a report describing intended actions to the Commission in
advance of commencing construction, rather than reporting actions taken
under part 157 after the fact, as is currently the case. The Commission
revises part 157 to state that the requirement to provide landowners
with 30-day prior notice is met if all affected landowners grant
easements. The Commission is also amending part 153 to specify that the
regulatory revisions related to emergency reconstruction will apply to
facilities subject to Section 3 of the Natural Gas Act (NGA). Finally,
the Commission is amending part 375 of its regulations to delegate
authority to waive certain landowner notice requirements and to make
certain judgments in the field regarding the construction and operation
of gas facilities. An important objective of the proposed rule is the
reconciliation of the Commission's regulatory responsibilities under
its enabling statutes and federal environmental and safety laws with
the need to protect persons and property.
Background
2. On January 17, 2003, the Commission issued a notice of proposed
rulemaking (NOPR),\1\ seeking comments on how it might facilitate the
restoration of gas service in an emergency due to a sudden
unanticipated loss of gas or capacity threatening loss of life,
impairment of health, or damage to property. The NOPR was prompted, in
part, by Commission and energy industry attention to operational safety
concerns, in particular, the potential impacts of deliberate damage to
energy facilities. On April 22, 2002, staff from the Commission and
from the Department of Transportation Office of Pipeline Safety (OPS)
jointly convened a technical conference to consider whether and how to
clarify, expedite, and streamline permitting and approvals for
interstate pipeline reconstruction following a sudden unanticipated
service disruption.\2\ Efforts to ensure the security of the nation's
energy infrastructure have generally focused on maintaining the
physical integrity of facilities and preparing to respond to accidents,
such as excavation that breaches a buried pipe, natural disasters, such
as earthquakes and landslides, and foreseeable equipment failure. The
conference broadened this focus to consider how best to respond to
damage due to a deliberate effort to disrupt the flow of natural gas.
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\1\ Emergency Reconstruction of Interstate Natural Gas
Facilities Under the Natural Gas Act, 68 FR 4120 (Jan. 28, 2003),
FERC Stats. & Regs. ] 32,567 (Jan. 17, 2993).
\2\ On the following day, staff from the Commission and from the
Department of Energy (DOE) jointly convened a technical conference
to consider whether to or how to clarify, expedite, and streamline
the reallocation of gas supplies in the event of a sudden
unanticipated service disruption. That proceeding, in Docket No.
AD02-15-000, is not addressed here.
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3. At the conference, Commission and OPS staff provided an overview
of current regulatory processes and presented examples of recent
natural gas emergencies. Conference participants--representing federal,
state, and local agencies, energy industry sectors, trade groups, and
interested individuals--suggested various means to speed the
reconstruction of interstate gas facilities, including: revising
existing legislative mandates, revising Commission regulations, and
enhancing coordination among federal, state, and local entities. A
transcript of the conference and the comments subsequently submitted
are contained in the record in Docket No. AD02-14-000.\3\
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\3\ The conference comments are available on FERC's Web site at
http://ferc.gov using the Federal Energy Regulatory Records and
Information System (FERRIS) to access filings in Docket No. AD02-14-
000. The Interstate Natural Gas Association of America (INGAA)
submitted scenarios describing how interstate pipelines might
respond to various types of facility-related emergencies. Because of
security concerns associated with disclosing this information, these
scenarios are not included in the public record in Docket No. AD02-
14-000; however, while the particulars of the scenarios are not
described in detail in the public record, the results are discussed
in general.
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4. In general, it appears the Commission's existing authorities and
policies are sufficient, and sufficiently flexible, to enable pipelines
to respond to emergencies in a timely manner. However, in view of the
April 2002 conference, and comments in response to the January 2003
NOPR, the Commission has identified circumstances under which its
present practices could constrain a pipeline from implementing a timely
response. Accordingly, as discussed below, the Commission is amending
its regulations to better enable pipelines to recover from an emergency
interruption in service.
Comments in Response to the January 2003 NOPR
5. Timely comments in response to the NOPR were filed by the
American Gas Association (AGA); Duke Energy Gas Transmission (Duke);
INGAA; KM Pipelines; \4\ KO Transmission Company (KO Transmission);
MidAmerican Energy Company (MidAmerican); NiSource Pipelines
(NiSource); \5\ Northern Natural Gas Company (Northern Natural); the
Process Gas Consumers Group (Process Gas Consumers); the Public Service
Commission of the State of New York (New York PSC); and Williston Basin
Interstate Pipeline Company (Williston Basin). Untimely comments were
submitted by the United States Department of the Interior, Fish and
Wildlife Service (FWS) and the Public Utilities Commission of Ohio
(Ohio PUC), which we accept, as to do so will not delay, disrupt, or
otherwise prejudice this proceeding.
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\4\ KM Pipelines consists of Kinder Morgan Interstate Gas
Transmission, LLC; Natural Gas Pipeline Company of America;
Trailblazer Pipeline Company; and TransColorado Gas Transmission
Company.
\5\ NiSource consists of Columbia Gas Transmission Corporation;
Columbia Gulf Transmission Company; Granite State Gas Transmission,
Inc.; and Crossroads Pipeline Company.
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Revisions to the Commission's Regulations
6. In the NOPR, we requested comments on the adequacy of the
Commission's existing authority to expedite the restoration of service
following an emergency gas disruption, and whether the expansion of
authority proposed would be sufficient to meet pipelines' emergency
reconstruction requirements. In the NOPR, we described a situation
where a pipeline could experience damage to its facilities, and then be
unable to gain access to the site of the damage (for example, access
may be obstructed in the case of a landslide, or restricted in the case
of an investigation). In such circumstances, we seek to ensure that
pipelines have authority adequate to be able to restore service
rapidly. In particular, we question whether a traditional NGA Section
7(c) certificate application will prove practical, since even with
accelerated processing of the application, the optimal time line to
take action will inevitably be extended. An NGA Section 7(c)(1)(B)
temporary certificate may be issued with dispatch, but may be
inadequate if repairs require more than minor enlargements or
extensions of existing facilities. Under Sec. 2.55 of our regulations,
a pipeline can
[[Page 31598]]
replace or repair facilities, but only within the footprint of the
existing facilities, and where costs are expected to exceed $7.5
million,\6\ only after 45 days advance notice to the Commission. In
view of these constraints, we have elected to expand the scope of
construction currently allowed under part 157, subpart F, of our
regulations.
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\6\ This amount is adjusted annually. See 18 CFR 157.208(d)
(2002), Table 1, column 1.
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7. Almost all interstate gas pipelines now hold part 157 blanket
certificates that permit the automatic construction, operation,
abandonment, replacement, and rearrangement of certain ``eligible
facilities.'' To facilitate pipelines'' capability to act expeditiously
to respond to an emergency,\7\ we propose to expand the scope of
``eligible facilities'' to include mainline facilities that require a
new right-of-way, and system modifications such as adding compression,
that could compensate for impaired gas flows. Further, for emergency
reconstruction, we propose to lift the current $21 million project cost
limit and forego the prescribed 45-day public notice requirement.\8\ In
addition to the 45-day public notice, a gas company acting under
blanket authority is required to make a good faith effort to notify all
affected landowners 30 days prior to commencing construction or at the
time it initiates easement negotiations. We retain this landowner
notification requirement, but as stated in the January 2003 NOPR, once
a company has contacted landowners, we will consider a company request
to waive the remainder of the 30-day landowner notice period.\9\
Defining an Emergency
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\7\ We add Sec. 157.202(b)(13) to define an emergency as ``a
sudden unanticipated loss of gas supply or capacity that requires an
immediate restoration of interrupted service for protection of life
or health or for maintenance of physical property.''
\8\ Id. The cost cap is adjusted annually. Currently, the 45-day
prior notice only applies to projects costing more than $7.5
million.
\9\ We note that Sec. 157.203(d)(3) of our regulations provides
for exceptions to the landowner notification requirements.
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8. The expanded reconstruction authority applies to activities
required to restore service for protection of life or health or for
maintenance of physical property in an emergency due to a sudden
unanticipated loss of gas or capacity. INGAA and Duke are concerned
that under this criteria, ``eligible facilities'' as defined under
Sec. 157.202 of the Commission's regulations would not include repairs
or replacement to respond to damage that did impair a company's ability
to meet contractual commitments, but that did not present a direct
threat to life, health, or property.
9. NiSource objects to describing an emergency as a ``sudden
unanticipated'' loss of gas or capacity, characterizing ``sudden'' as
an unnecessary qualification. NiSource would curtail the definition of
an emergency to an ``unanticipated'' loss of gas or capacity.
10. The Process Gas Consumers Group, representing industrial end
users, believes that the economic harm a factory may incur due to an
interruption in gas deliveries should be construed as property damage
qualifying for reconstruction authorization under the emergency blanket
regulations. To this end, the Process Gas Consumers Group endorses
expanding Sec. 157.205(a) and Sec. 157.208 of our regulations to
include reconstruction ``activity required to restore service in an
emergency due to a sudden unanticipated loss of natural gas supply or
capacity in order, for example, to prevent loss of life, impairment of
health, economic harm to end users, or damage to property.''
Commission Response
11. Restricting the expanded part 157 authority to emergencies that
require an immediate response for protection of life or health or for
maintenance of physical property is deliberate. Circumstances that
frustrate a pipeline's capability to meet certain customer needs--but
that do not otherwise pose a direct threat to life, health, or
property--are most appropriately addressed, as has been the case until
now, under the terms of a pipeline's existing tariff and our non-
emergency rules and regulations. Rather than expanding the definition
of emergency to include economic damages, as the Process Gas Consumers
Group proposes, we suggest such damages, particularly business losses
due to disrupted gas deliveries to end users, may be managed by being
insured against, or by employing dual fuel capabilities, or by
addressing parties' responsibilities in the terms of service. We seek
to keep emergencies focused on threats to life, health, or property,
and including economic damage in the definition of emergency risks is
an inappropriate expansion of the new regulatory provisions, given that
a reasonable argument might be made that any gas curtailment
constitutes a threat to economic welfare. In view of this, we will not
enlarge the definition of emergency to include economic damage.
12. To emphasize that an emergency be precipitated by events which
a company could not be expected to predict or prepare for, we retain
both ``sudden'' and ``unanticipated.'' We note this definition of
emergency is consistent with that of Sec. 284.262(2) of our
regulations, which also defines an emergency as a ``sudden
unanticipated loss of natural gas supply or capacity.''
Eligible Facilities
13. INGAA, Duke, and Williston Basin observe that the NOPR focuses
on reconstruction that necessitates a pipeline's deviating from its
existing right of way, and ask that in the final rule the Commission
explicitly apply the expanded emergency blanket authority, i.e., waiver
of prior notice and lifting the project cost cap, to construction
within the existing right of way. INGAA and Duke propose that the Sec.
157.202(b)(2)(i) definition of ``eligible facilities'' read as follows:
Emergency replacements are any restoration of pre-existing
mainline capacity, including the reconstruction of mainline
facilities either inside or outside the existing right of way and
the modification of facilities to rearrange gas flows or increase
compression for the primary purpose of restoring pre-existing
service and/or capacity to protect life, prevent impairment of
health, or damage to property due to the sudden unanticipated damage
to mainline facilities.
14. The New York PSC observes that in addition to rebuilding to
replace damaged facilities, it may be possible, and potentially more
efficient, to restore essential service by making modifications to
undamaged portions of a pipeline's system. To allow for such
modifications, the New York PSC would expand ``eligible facilities'' to
include construction intended to redirect gas flows on a pipeline's
system.
15. To ensure that the expanded authority is employed prudently,
FWS recommends that Sec. 157.202(B)(2)(i) apply ``only when the
construction within the existing footprint may be prohibited due to
natural disasters, or acts of national security.''
16. KM Pipelines state that from an operational standpoint,
compressors and storage facilities are integral parts of mainline
systems, and so argues that compressors and storage facilities should
be explicitly included within the meaning of mainline facilities. Duke
asks that the Commission clarify that the emergency blanket provisions
will cover conventional storage facilities.
17. INGAA requests the Commission specify that when replacing
damaged facilities, a pipeline need not duplicate the damaged
facilities, but may make use of components of ``substantially similar
capacity.'' INGAA points out that emergency repairs can be made most
rapidly by using supplies readily available in inventory. INGAA
therefore
[[Page 31599]]
requests regulatory leeway to use substantially similar accessible
supplies when duplicate replacement supplies are not readily available.
INGAA observes that Sec. 2.55(b)(ii) of the Commission's regulations
already specifically accepts the substitution of approximately
equivalent components.
Commission Response
18. Our aim is to enable a company to recover from an emergency as
soon as possible, and we assume recovery will be quickest (and most
cost effective) when a company can repair or replace damaged facilities
within the original footprint, since such efforts can be expected to
minimize the need for easements and environmental approvals. Thus, we
expect that reconstruction within the right-of-way will, when possible,
be preferred. However, although an existing right-of-way may remain
accessible, we can envision circumstances where new construction along
a new right-of-way could be the more rapid means to restore service. We
therefore want to offer pipelines options when rebuilding, and for this
reason, we will not adopt the FWS proposal that we permit pipelines to
use the new blanket authorization to reconstruct on a new right-of-way
only when the existing right-of-way is unavailable. We clarify that
although the NOPR emphasized the applicability of expanded emergency
blanket authority to reconstruct outside of an existing right-of-way,
we also intend for emergency blanket authorization to apply to
reconstruction within the existing right-of-way. Consequently, we find
no need to alter the revised regulatory language as suggested by INGAA,
Duke, and Williston Basin.
19. As proposed, we will add ``the modification of facilities to
rearrange gas flows or increase compression'' to Sec.
157.202(b)(2)(i), as we find this phrase better expresses our intent to
make it possible for a damaged pipeline to rely on the new emergency
blanket provisions to modify its system as needed to restore service.
We are concerned that absent this additional description of potential
authorized actions, the emergency blanket provisions could be construed
as restricting a pipeline to either the repair or replication of
damaged facilities, with the sole exception of rerouting a mainline.
Such an interpretation could constrain a pipeline's emergency recovery
efforts, thereby prolonging service shortfalls, and thereby limit the
utility of the new blanket regulations and undermine our aim to speed
recovery efforts. Thus, if a pipeline finds it is able to restore
interrupted service faster by adding new facilities--such as
compression at an undamaged site or equipment to enhance storage
withdrawals--than by replacing or repairing damaged facilities, we want
pipelines to have emergency blanket authority to add such facilities.
Further, if a pipeline can safely adjust operating parameters or can
rearrange facilities on its system in order to compensate for a service
interruption, the emergency blanket regulations should permit such
modifications. Accordingly, we will add ``the modification of
facilities to rearrange gas flows or increase compression'' to those
actions permitted under emergency blanket authority. This revision may
be interpreted as encompassing the redirection of gas flows, as
requested by the New York PSC.
20. We note that in an emergency, pipelines are to focus on the
immediate restoration of services essential for protection of life or
health or for maintenance of physical property; thus, ``the
modification of facilities'' applies only those modifications devoted
to this priority. In reviewing pipelines' advance notice of emergency
reconstruction, we will consider whether the described activities are
consistent with this priority.
21. INGAA and Duke propose to employ emergency authorization to
restore pre-existing service. We stress that unless a company's
inability to fulfill its service contracts presents a direct threat to
life, health, or property, no emergency exists, and where no emergency
exists, it would be inappropriate to invoke emergency authority. We
reiterate our observation in the NOPR that this ``enlargement in the
scope of permissible actions under part 157, subpart F, is restricted
to actions necessary to restore service after an interruption due to an
emergency event,'' and does not apply to ``circumstances [that] would
not qualify as an emergency.'' \10\ However, provided an incident
causing an interruption in service qualifies as an emergency, we
clarify that a company may rely on the expanded blanket emergency
provisions to replace or rearrange facilities in order to reinstate
service up to the level it previously provided.
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\10\ FERC Stats. & Regs. ] 32,567, at 34,683.
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22. We believe it is reasonable to permit a pipeline to employ the
most readily available materials in an emergency. The public interest
in restoring service should not wait on the delivery of an order for
new materials that match the damaged facilities. Accordingly, we
clarify that in an emergency a pipeline may use components of
substantially similar capacity. The current regulations implicitly
permit such substitutions. As INGAA comments, the `substantially
similar capacity' allowance is the Sec. 2.55(b)(ii) standard.'' \11\
Section 157.202(b)(2)(i) of our regulations expands upon this, allowing
``replacements that do not qualify under Sec. 2.55(b) of this chapter
because they will result in an incidental increase in the capacity of
main line facilities.'' Provided replacement facilities that differ
from the original facilities result in no more than an incidental
increase in capacity, we expect such replacements will be acceptable
under the expanded emergency blanket certificate authorization. We note
that the Sec. 157.207 report of intended action under emergency
blanket authority should serve, inter alia, to inform the Commission of
circumstances that merit the use of replacement facilities that are not
a one-to-one match for a system's existing facilities.
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\11\ Specifically, Sec. 2.55(b)(ii) states that ``replacement
facilities will have a substantially equivalent designed delivery
capacity.''
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Notice Requirements
23. INGAA, Duke, and NiSource support the proposal to omit the
Sec. 157.203(a) 45-day public notice period for emergency
reconstruction, and urge the Commission to similarly exempt pipelines
from the Sec. 157.203(d) 30-day landowner notice requirement. Noting
the Commission's stated willingness to consider requests to waive the
30-day landowner notice, the parties nevertheless view this approach as
uncertain and time consuming, and favor omitting the Sec. 157.203(d)
landowner notice. INGAA and Duke contend this notice is unnecessary, as
it is duplicative of a pipeline's obligation to either obtain voluntary
easements from landowners or obtain easements through condemnation
proceedings.
24. Northern Natural believes that in an emergency that threatens
life, health, or property, the public interest in prompt remedial
action should outweigh the landowners' interest in notification.\12\
Therefore, Northern Natural recommends that the Commission modify Sec.
157.203(d)(3) to exclude landowner notice in an emergency; with
emergency construction limited to the minimal disturbance needed to
restore service and to landowners directly impacted. Alternatively,
Northern Natural suggests that landowner notification and
[[Page 31600]]
construction be allowed to take place concurrently.
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\12\ Northern Natural speculates that in an emergency, property
owners may be unavailable and communications unreliable.
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25. Duke, Northern Natural, and KM Pipelines are concerned that
efforts to negotiate in good faith with landowners to obtain easements
prior to exercising eminent domain authority could delay
reconstruction. Recognizing that the mechanics and pace of this
judicial process are outside of the Commission's domain, Duke asks the
Commission to ``acknowledge * * * the need for and benefit of an
expedited eminent domain process'' in an emergency, so as to encourage
courts to facilitate expedited entry onto lands and Congress to modify
statutory limitations. Northern Natural similarly urges the Commission
to coordinate regulatory and statutory changes with other agencies to
expand powers of eminent domain and blanket waivers, and ``employ its
maximum allowable authority to expedite the process in an emergency.''
KM Pipelines encourage the Commission to seek legislative revisions so
that in an emergency, environmental statutes and related regulations
may be waived to allow for immediate reconstruction. KM Pipelines
propose that such revisions provide for the Commission to declare an
emergency exists, after which pipelines will be able to obtain an
expedited court condemnation order to gain access to land, with a
separate determination on compensation to follow at a later date.
Commission Response
26. It is necessary to find the proper balance between facilitating
the immediate restoration of service in an emergency, via a new right-
of-way if necessary, and safeguarding the due process rights of
affected landowners, but we believe eliminating landowner notice shifts
the balance too far. The landowner notice requirements protect the
public interest by ensuring that property rights are respected and that
any necessary new easements adhere to applicable state procedures.\13\
Thus, we will retain the Sec. 157.203(d) requirement that a pipeline
make a good faith effort to provide all affected landowners with 30-day
notice. We note that regardless of the Commission's regulations,
landowners must be contacted for the purpose of obtaining an easement,
and this contact may serve as notice for the purpose of complying with
Sec. 157.203(d) of our regulations.
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\13\ Note that landowner notice is not required under the
exemptions specified in Sec. 157.203(d)(3) of the Commission's
regulations.
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27. We suggest that the greater the magnitude and urgency of an
emergency, the more persuasive pipelines may be in negotiating
voluntary easements. Involuntary easements compelled through the
exercise of the right of eminent domain are subject to state law, and
we suggest that the nature of the emergency may influence the
willingness of state authorities to intervene to expedite their
procedures. In view of this, we are not willing to forego prior notice
to landowners, as requested, in its entirety.
28. We nevertheless believe that modifications may be made to the
landowner notice requirements to speed the process while retaining
relevant landowner protections. Under Sec. 157.203(d) of our current
regulations, a landowner, once notified in accordance with Sec.
157.6(d)(2) and Sec. 157.203(d)(2) of our regulations, may waive the
30-day aspect of the prior notice requirement. We will expand this and
revise Sec. 157.203(d) to state that ``For activity required to
restore service in an emergency, the 30-day prior notice period is
satisfied in the event a company obtains all necessary easements.'' We
believe that once a company has reached voluntary agreements with all
landowners affected by a new right-of-way, there is no remaining
landowner interest to be protected by awaiting the expiration of the
remainder of the 30-day prior notice period. In addition, we will
provide the Director of the Office of Energy Projects (OEP) with the
authority to waive landowner notice requirements, as necessary or
appropriate, by adding a new Sec. 375.308(w)(5), to state that the OEP
Director, or the Director's designee, has the delegated authority to
take appropriate action on ``Requests for waiver of the landowner
notification requirements in Sec. 157.203(d) of this chapter.''
29. We agree with those comments that stress the need for pipelines
to be able to obtain new right-of-way to build around damaged portions
of pipe. That said, as commenters observe, the mechanics and pace of
the process of obtaining a new easement by right of eminent domain are
beyond the scope of this Commission's jurisdiction.\14\ Consequently,
we are unable to commit to effecting changes in other agencies'
regulations or our own statutory authority. We nevertheless can and do
commit to working with local, state, and federal authorities to
coordinate and expedite emergency reconstruction efforts.
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\14\ We specifically requested views on the need for further or
broader action by the Commission or Congress to inform our
consideration of changes we might make to ensure the continued
integrity of the energy infrastructure.
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Advance Report of Emergency Reconstruction Activities
30. In the NOPR, we noted that under the existing Sec. 157.207
reporting requirements, companies submit a retrospective annual report
describing the projects completed under blanket authority during the
prior year. Because the expanded emergency blanket authority provisions
omit the requirement that companies give 45-day prior notice for public
comment on projects costing more than $7.5 million, we modified this
section to require that companies intending to rely on emergency
blanket authority submit an advance report to the Commission describing
their preparations and plans before commencing reconstruction.
31. NiSource does not object to notifying the Commission prior to
proceeding with emergency reconstruction activities, as long as the
Commission acknowledges and accepts that the initial description of the
problem and remedial plan may be inexact and subject to change in light
of the incomplete information and urgency inherent in an emergency.
32. Northern Natural observes that Sec. 260.9(b) allows companies
to deliver notices of gas service disruptions to the Commission ``by
any electronic means'' and asks that if the Commission retains an
emergency advance report requirement, it should permit pipelines to
deliver this report by electronic means. Further, Northern Natural
seeks clarification that the advance report filing applies only to
emergency activities under the proposed expanded blanket authority, and
will not be interpreted to apply to activities that come under current
no-notice blanket authority. Northern Natural worries that an emergency
may disrupt communications between pipelines and governmental agencies.
Commission Response
33. We accept that in attempting to restore service in response to
an emergency, a pipeline's preparation and planning will not be as
thorough and predictable as would be the case in describing a proposed
non-emergency construction project. Accordingly, we do not expect to
hold a pipeline to the precise parameters set forth in the advance
report describing its intended emergency reconstruction.
Further, while we will expect a pipeline to submit as complete and
accurate a report as is practical, as stated in the NOPR, we recognize
that it will not be possible ``to supply all the information routinely
set forth in a
[[Page 31601]]
standard annual blanket report.''\15\ It is in part in anticipation of
inevitable infirmities in an advance report that we expect a company
undertaking emergency reconstruction to consult with the Commission
during reconstruction, and to that end, where necessary, the Commission
will have a staff member present on site.
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\15\ FERC Stats. & Regs. ] 32,567, at 34,686.
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34. In response to Northern Natural, we observe that the existing
Sec. 260.9 requirement to report serious service interruptions
occurring on a pipeline system is not affected by the new regulations
set forth herein. We acknowledge the utility of allowing an advance
report, described in the new Sec. 157.207 general reporting
requirements, to be filed by electronic means. Accordingly, we will
provide an electronic filing option for these advance reports via the
eFiling link on the Commission Web site at www.ferc.gov. Companies
filing advance reports in accordance with the emergency blanket
certificate provisions should select the filing type ``Notice/Report of
Intent to Use Emergency Procedures'' from the eFiling System Filing
Type Selection menu for Gas. If the report cannot be electronically
filed due to file size or content restrictions (e.g., large maps) in
the Commission's eFiling system, then the report may be submitted on CD
ROM. We will post procedures for filing these advance reports on our
Web site and update those procedures as the eFiling system expands to
accommodate more complex filings.
35. We clarify that the requirement for advance notice only
applies, as described in Sec. 157.207, ``[i]n the case of an emergency
due to a sudden unanticipated loss of natural gas supply or capacity.''
When a pipeline is acting under existing non-emergency blanket
authority, the existing annual report requirement applies, as do the
existing project cost limit and 45-day prior notice requirements.
Pursuant to the existing blanket regulations, non-emergency projects
under the current $7.5 million cost cap qualify for automatic no-notice
authorization.
Compliance With Environmental Obligations
36. INGAA urges that the Commission work with other relevant
governmental entities in order to coordinate the environmental review
process to expedite permits and approvals needed to effect pipeline
repairs. INGAA observes that for emergency actions subject to an EIS--
but not for emergency actions subject to an EA--the Commission may
consult with CEQ with the aim of developing alternative NEPA compliance
arrangements.\16\ To address this regulatory asymmetry, INGAA proposes
that the Commission expressly waive its requirement that an EA be
prepared in the case of an emergency.
---------------------------------------------------------------------------
\16\ See 40 CFR 1506.11 (2002).
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37. NiSource suggests that ``[t]he presence of a Commission Staff
inspector (with stop work authority)'' on site may prove ``inconsistent
with the emergency response action environment that will dominate the
construction project.''\17\ However, if the Commission chooses to send
a representative to oversee emergency reconstruction, NiSource requests
that the representative have broad authority to grant on-site
variances, including variances of the Commission's environmental
construction guidelines.
---------------------------------------------------------------------------
\17\ NiSource's Comments, at 6 (February 27, 2003).
---------------------------------------------------------------------------
38. The Ohio PUC advocates deploying Commission staff to the
affected site to coordinate with other federal, state, and local
agencies to review routing and environmental mitigation. FWS recommends
Commission staff be present and actively involved where reconstruction
cuts a new right-of-way.
39. FWS asks that we clarify the applicability of the environmental
compliance conditions of Sec. 157.206(b) to actions proceeding under
the expanded emergency blanket provisions. In addition, FWS proposes
that the Commission introduce an emergency action plan into its
certification of interstate pipeline facilities that would include the
consideration of alternative right-of-way routes, surveyed in advance
to determine areas of environmental sensitivity, and list contact
numbers for the appropriate agencies' field offices.
Commission Response
40. Under Sec. 380.4(a)(21) of our regulations, certain activities
authorized under the part 157, subpart F, blanket certificate
regulations are categorically excluded from environmental review.
However, construction projects subject to prior notice under Sec.
157.208(b) normally require an EA.\18\ In addition, in all cases,
projects constructed under blanket certificate authorization are
subject to the environmental conditions of Sec. 157.206(b). That
section requires that the certificate holder adopt specific siting and
maintenance provisions, that the project activities are consistent with
all applicable environmental statutes, regulations, and compliance
plans, and that the project ``shall not have a significant adverse
impact on a sensitive environmental area.''
---------------------------------------------------------------------------
\18\ See 18 CFR 380.5(b)(2) (2002).
---------------------------------------------------------------------------
41. Construction performed under the emergency rule adopted herein
is subject to the environmental requirements of Sec. 157.206(b). Among
other things, these provisions require all authorized activities to be
consistent with applicable environmental laws, impose limits on
compressor noise, require companies to adopt the environmental
mitigation conditions set out in Sec. 380.15 of the Commission's
regulations, and prohibit any activity that would have an adverse
effect on a sensitive environmental area. To the extent that a company
cannot comply with the Sec. 157.206(b) requirements, the company
cannot rely on blanket certificate authority to complete the project,
and would have to seek separate authorization. In addition, as provided
in the new Sec. 385.308(x)(7) discussed below, the regulations
established herein specifically delegate to the OEP Director the
authority to ensure the protection of environmental resources during
the course of construction. This includes authority to employ staff
with stop work authority to monitor construction activities. Under all
of these circumstances, we find that a project undertaken in accordance
with these expanded emergency blanket regulations, including the
specified environmental limitations, will not constitute a major
federal action significantly affecting the quality of the human
environment and will not require a separate EA prior to construction.
42. We do not share NiSource's concern that having Commission Staff
on site might impede emergency reconstruction efforts. To the contrary,
we expect the presence of Commission Staff with authority to ensure
compliance with environmental mitigation measures, including the
authority to grant on-site variances to enable a company to adopt
alternative means to meet environmental requirements, will speed
reconstruction efforts. Accordingly, we will amend our Sec. 375.308
regulations to specify that a staff member designated by the OEP
Director, present on the emergency construction site as necessary or
appropriate, shall have delegated authority sufficient to ensure
environmental protection. Specifically, we will add a new Sec.
375.308(x)(7), to state that the OEP Director, or the Director's
designee, has the delegated authority to ``Take whatever steps are
necessary to ensure the protection of all environmental resources
during the construction or operation of natural gas
[[Page 31602]]
facilities, including authority to design and implement additional or
alternative measures and stop work authority.''
43. Recognizing that recovery from a gas emergency will call for
actions and authorizations by entities other than this Commission,
comments plead for a plan for inter-governmental interaction. The
nature of an emergency as a sudden unanticipated event makes advance
identification of the relevant authorities that will need to be
involved in responding to an emergency, and the role each will play,
impractical. Nevertheless, we can name those regional entities that are
most likely to be involved in recovery efforts, and as a first step to
facilitate communication and coordination, we will make contact
information for these entities available via our Web site.\19\
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\19\ FWS, in response to the NOPR, invites the Commission to
contact its ``appropriate regional office to expedite and facilitate
a coordinated emergency response,'' which we expect to do. With
respect to intergovernmental coordination in an emergency, as
discussed in the NOPR, we expect the Department of Energy's Office
of Energy Assurance to play a role in overseeing energy industry
equipment stockpiles and mutual aid pooling and exchange programs;
identifying critical facilities, equipment, and personnel;
establishing communications protocol; and developing security and
contingency plans. In addition, we anticipate the Department of
Homeland Security will coordinate response resources in the event of
a terrorist attack or other disaster. Further, pursuant to Sec.
16(a)(1) of the Pipeline Safety Improvement Act of 2002, an
interagency committee, headed by CEQ, with the Commission among its
members, is charged ``to develop and ensure implementation of a
coordinated environmental review and permitting process in order to
enable pipeline operators to commence and complete all activities
necessary to carry our pipeline repairs'' expeditiously. To the
extent changes to the Commission's rules may be necessary to address
safety concerns, we expect the interagency committee called for by
this Act will provide a vehicle for identifying the relevant issues.
We believe that this Commission can best support intra- and inter-
governmental and industry coordination by contributing to and
participating in these efforts.
---------------------------------------------------------------------------
44. FWS requests clarification with respect to Sec. 157.206 of our
regulations. As stated in the NOPR, the applicable conditions set forth
in Sec. 157.206(b) describe environmental requirements that must be
satisfied as a prerequisite to construction under both the existing
blanket authority and the expanded emergency blanket authority. FWS
suggests that the Commission's certification authorization could
incorporate an emergency action plan that would include surveying
alternative routings. To a certain extent, we already do so in our NEPA
consideration of alternatives to a proposed project. We agree with the
principle that it is prudent to be prepared; however, since there is no
way to predict if, when, or where damage might occur along the vast
array of interstate gas facilities, we find it impractical to attempt
to undertake an environmental inventory of possible alternative routing
in advance of an actual incident. However, we agree with FWS that
reconstruction efforts can be expedited by having relevant entities'
contact information readily available, and to this end, we will
compile, post, and update such information on our Web site.
Self-Implementation v. Prior Authorization
45. As proposed, under the expanded emergency blanket authority, a
pipeline can invoke the expanded blanket authority, inform the
Commission of its intended emergency reconstruction activities, and
unless the Commission objects, go forward. In the NOPR we asked whether
affirmative Commission authorization or a short review period (e.g.,
three days) should be required before a pipeline would be permitted to
act under emergency blanket authority.
46. INGAA, Duke, Northern Natural, KM Pipelines, Williston Basin,
and KO Transmission state that to be able to respond as rapidly a
possible in an emergency, blanket authorization for construction
outside of an existing right-of-way should be self-implementing. These
parties see no need for the Commission to first verify that an
emergency exists, and then approve a pipeline's proposed emergency
response, before permitting a pipeline to act.
47. INGAA believes that there is no cause for the Commission to
assess a pipeline's reconstruction proposal for a period of time before
breaking ground, because the Commission may rely on a representative on
site to oversee repairs. Williston Basin agrees, and adds that the on-
site Commission representative, in conjunction with the advance report
describing emergency activities, should provide the Commission with
adequate information and oversight.
48. Instead of granting pipelines self-implementing authority to
undertake emergency repairs outside an existing right-of-way, FWS and
the Ohio PUC propose the Commission should first declare that an
emergency requiring immediate action exists, with the Commission's
declaration serving as the trigger and authorization for emergency
reconstruction activities. FWS recommends that the Commission have five
calendar days from receiving notice of an emergency interruption in
service to decide if circumstances merit rebuilding along a new right-
of-way.
49. KO Transmission recommends allowing pipelines to commence
reconstruction prior to contacting the Commission.\20\ If an emergency
incident occurs when Commission offices are closed, KM Pipelines
propose permitting a pipeline to go forward with construction, with a
report describing its remedial action to be submitted when Commission
offices reopen. Alternatively, KN Pipelines suggest the Commission
provide for some means of filing a report on emergency reconstruction
when its offices are closed.
---------------------------------------------------------------------------
\20\ Specifically, KO Transmission suggests adding the
qualification ``or currently underway,'' at the end of the proposed
Sec. 157.207(i) requirement that pipelines submit reports
``describing emergency activities to be undertaken;'' i.e.,
effectively eliminating reporting in advance of commencing
reconstruction.
---------------------------------------------------------------------------
50. Instead of submitting a prospective plan of reconstruction to
the Commission, the Process Gas Consumers Group suggests the Commission
designate a contact person with the authority to immediately approve or
disapprove emergency reconstruction activities. In the event of
disapproval, the company could then submit its plan to the Commission,
with the Commission taking up to three days to review the plan and the
rationale for initial disapproval by the designated staff member.
51. NiSource does not object, in principle, to obtaining Commission
confirmation that an emergency exists, as long as doing so does not
delay the pipeline's response. To this end, NiSource suggests the
Commission create a ``rapid response'' staff, capable of confirming
that an emergency exists, assisting in formulating a plan to
reconstitute service, and providing waivers as warranted--all within a
24-to 36-hour time frame. NiSource contends that involving the
Commission in this manner could preclude after-the-fact challenges to
the pipeline's emergency actions.
52. MidAmerican and the New York PSC endorse the proposal for prior
notice to the Commission. The New York PSC believes it is prudent for
the Commission to verify that the circumstances in fact constitute an
actual emergency, and to assess the scope and impact of the proposed
response. MidAmerican is concerned that if no-notice self-
implementation is permitted, pipelines might take the opportunity to
upgrade, rather than merely replace or repair, their damaged
facilities. MidAmerican adds that in view of the public interest in a
rapid restoration of interrupted service, in no circumstances should
the Commission's review of a pipeline's advance report filing take more
than three days.
[[Page 31603]]
Commission Response
53. In view of the comments, we will limit the revisions to our
blanket certificate regulations to those proposed in the NOPR, and not
require either Commission affirmation that emergency conditions exist
or a time-out interval during which we review a pipeline's proposed
emergency response. In effect, we will allow pipelines self-
implementing authority to act to immediately reconstitute service for
the protection of life or health or for maintenance of physical
property in an emergency due to a sudden unanticipated loss of natural
gas or capacity. We retain the requirement that a pipeline submit an
advance report of intended emergency reconstruction activities. In
part, advance notice in an emergency serves the same purpose as the
public notice requirement does for construction under a blanket
certificate in a non-emergency in that it enables the Commission to
confirm that the planned activities are consistent with environmental,
safety, and land acquisition requirements. In addition, the Commission
can consider whether the planned activities are narrowly tailored to
restoring service as soon as possible and ensure that reconstruction
will not include any system modifications that are not essential to
alleviate threats to life, health, or property. Once an advance report
is submitted, a company may proceed with its emergency reconstruction
activities. Our consideration of the company's notice of planned
reconstruction, and identification of any necessary modifications, will
proceed concurrently with reconstruction activities.
54. In an emergency, in the interests of safety and environmental
protection, a company acts immediately to limit damage and stabilize
its system, and the new advance report provision is unrelated to
actions taken in the context of this initial emergency response. The
new advance report provision only comes into play after a company has
isolated damaged facilities, assessed the status of its system, and
formed a plan for recovery. Because currently effective provisions
already authorize companies to act in an emergency and are effectively
self-implementing, asking a company to describe how it intends to
restore interrupted service in no way inhibits companies' existing
capability (and obligation) to respond promptly to threats to the
integrity of their facilities.\21\ We have yet to encounter a situation
whereby a company is prevented from immediately undertaking essential
action in response to an emergency because Commission offices are
closed. Hence, we do not anticipate a need to provide a means to
present an advance report of planned reconstruction during non-business
hours. However, if we find a delay in communicating with the Commission
has inhibited urgently needed action, whether it be action pursuant to
this expanded emergency blanket authority or in another time-critical
context, we will seek a means to remedy any such delay and can do so in
a way that supplements this rule.
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\21\ Given gas companies' existing authority to act to stabilize
their system's facilities after a disruption in service, we expect
the expanded blanket emergency authority will only be called upon in
extreme and unambiguous emergency circumstances. Consequently, we do
not expect companies to invoke blanket emergency authority unless it
is the only regulatory option to restore service for the protection
of life or health or for maintenance of physical property.
---------------------------------------------------------------------------
Range of Reconstruction Activities
55. INGAA and Duke propose the Commission modify part 153 to
specifically apply the emergency reconstruction provisions to import,
export, and LNG terminal facilities. INGAA explains that because these
facilities are subject exclusively to NGA Section 3, and not NGA
Section 7, such facilities would be unaffected by the proposed
expansion of the part 157 blanket certificate regulations.
56. MidAmerican would have the Commission expand the scope of the
proposed rule to include not only authority for a pipeline to rebuild
its own damaged facilities, but also for a damaged pipeline to make use
of undamaged (or less damaged) facilities of another pipeline in the
same region, or where more efficient in terms of time and cost,
undertake new construction on another pipeline system's facilities to
provide additional capacity to meet its own customer needs.
Commission Response
57. We strive to respond with dispatch when any portion of the
energy infrastructure is damaged, including facilities subject
exclusively to NGA Section 3. We have adopted and applied certain NGA
Section 7 conditions governing construction, operation, and rates to
ensure that NGA Section 3 facilities are in the public interest, and we
will do so in this case to enable timely repairs in the event of damage
to such facilities.\22\ To this end, we add Sec. 153.13, to state that
``The provisions of subpart F of part 157 of this chapter that permit
reconstruction for the purpose of immediately restoring interrupted
service for the protection of life or health or for maintenance of
physical property in an emergency due to a sudden unanticipated loss of
gas supply or capacity are applicable to facilities subject to Section
3 of the Natural Gas Act.''
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\22\ This ensures that in an emergency, LNG facilities that are
subject exclusively to NGA Section 3, or subject exclusively to NGA
Section 7, or subject to both sections, can employ the expanded
emergency blanket provisions.
---------------------------------------------------------------------------
58. We are not persuaded that there is a need for the Commission to
coordinate multiple pipelines' cooperative response to an emergency, as
MidAmerican proposes. We expect that the existing part 284, subpart I,
regulations governing emergency gas sale, transportation, and exchange
transactions, are adequate to enable one pipeline to rely on another to
assist to respond to an emergency gas shortfall.\23\
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\23\ A gas disruption so severe and so sustained that remedial
actions under the Commission's regulations prove unavailing, or
conditions that cripple the Commission's or the industry's
communication capabilities, would likely constitute a natural gas
supply emergency, and trigger application of the Defense Production
Act, 50 U.S.C. App. 2061, et seq., which provides for federal
coordination and direction.
---------------------------------------------------------------------------
Declaration of an Emergency
59. In the NOPR, we asked if expanded emergency blanket authority
should be restricted, and apply only in response to emergencies due to
natural disasters or deliberate damage. INGAA, AGA, Duke, Northern
Natural, Process Gas Consumers Group, Shell Gas Transmission, NiSource,
Williston Basin, the New York PSC, and KO Transmission maintain that
regardless of the cause of a sudden unanticipated loss of gas or
capacity, the effect is the same, namely, an urgent need to restore
service. Accordingly, they ask that the Commission clarify that the
proposed revisions will apply regardless of whether an emergency is the
result of a natural disaster, equipment failure, human error, accident,
or deliberate damage.
60. MidAmerican would restrict the applicability of the expanded
blanket authority to ``an emergency situation or act of deliberate
damage.'' For reconstruction requiring a new right-of-way, FWS would
restrict expanded blanket authority specifically to natural disasters
and acts of deliberate damage.
Commission Response
61. Comments convince us that it is appropriate to focus not on
cause, but on effect. Consequently, we will not restrict the expanded
blanket authority to emergencies attributable to deliberate damage.
Besides, in the aftermath of an incident that interrupts service, it
could prove counterproductive to have to first
[[Page 31604]]
establish, for example, whether it was a meteor or a missile that
breached a gas line. Thus, regardless of the reason, in an emergency
due to a sudden unanticipated loss of gas or capacity, when immediate
action is required for the protection of life or health or for
maintenance of physical property, the new emergency blanket regulations
will apply.
Information Collection Statement
62. The Office of Management and Budget (OMB) regulations require
that OMB approve certain information collection requirements imposed by
agency rule.\24\ This rule will not impact information collection.
Accordingly, there is no cause to submit this rule to OMB for review
under section 3507(d) of the Paperwork Reduction Act of 1995, 44 U.S.C.
3507(d).
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\24\ 5 CFR part 1320 (2002).
---------------------------------------------------------------------------
Environmental Analysis
63. The Commission is required to prepare an EA or EIS for any
action that may have a significant adverse effect on the human
environment.\25\ The Commission has categorically excluded certain
actions from these requirements as not having a significant effect on
the human environment.\26\ The actions herein fall within categorical
exclusions in the Commission's regulations for rules that are
clarifying, corrective, or procedural, for information gathering,
analysis, and dissemination, and for sales, exchange, and
transportation of natural gas that requires no construction of
facilities.\27\ Therefore, an environmental assessment is unnecessary
and has not been prepared in this rulemaking.
---------------------------------------------------------------------------
\25\ Order No. 486, Regulations Implementing the National
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. &
Regs. Regulations Preambles 1986-1990 ] 30,783 (1987).
\26\ 18 CFR 380.4 (2002).
\27\ See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5),
380.4(a)(27)(2002).
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Regulatory Flexibility Act [Analysis or Certification]
64. The Regulatory Flexibility Act of 1980 (RFA) \28\ requires
agencies to prepare certain statements, descriptions, and analyses of
proposed rules that will have significant economic impact on a
substantial number of small entities. Agencies are not required to make
such an analysis if a rule would not have such an effect. The
Commission does not believe that this rule would have such an effect on
small business entities, since the amendments to our regulations apply
only to interstate pipelines, most of which are not small businesses.
Accordingly, pursuant to section 605(b) of the RFA, the Commission
certifies that this rule will not have a significant adverse impact on
a substantial number of small entities.
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\28\ 5 U.S.C. 601-612.
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Document Availability
65. 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 p.m.
Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.
66. From FERC's Home Page on the Internet, this information is
available in the Federal Energy Regulatory Records Information System
(FERRIS). The full text of this document is available on FERRIS in PDF
and WordPerfect format for viewing, printing, and/or downloading. To
access this document in FERRIS, type the docket number excluding the
last three digits of this document in the docket number field.
67. User assistance is available for FERRIS and the FERC Web site
during normal business hours by contacting FERC Online Support by e-
mail at FERCOnlineSupport@ferc.gov or by telephone at 866-208-3676
(toll free) or TTY at 202-502-8659.
Effective Date and Congressional Notification
68. These regulations are effective July 14, 2003.
69. The Commission has determined, with the concurrence of the
Administrator of the Office of Information and Regulatory Affairs of
OMB, 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 153
Exports, Imports, Natural gas, Reporting and recordkeeping
requirements.
18 CFR Part 157
Administrative practice and procedure, Natural gas, Reporting and
recordkeeping requirements.
18 CFR Part 375
Authority delegations (Government agencies), Seals and insignia,
Sunshine Act.
By the Commission.
Magalie R. Salas,
Secretary.
0
In consideration of the foregoing, the Commission amends parts 153,
157, and 375 of Chapter I, Title 18, Code of Federal Regulations, as
follows.
PART 153--APPLICATIONS FOR AUTHORIZATION TO CONSTRUCT, OPERATE OR
MODIFY FACILITIES USED FOR THE EXPORT OR IMPORT OF NATURAL GAS
0
1. The authority citation for part 153 continues to read as follows:
Authority: 15 U.S.C. 717b, 717o; E.O. 10485, 3 CFR, 1949-1953
Comp., p. 970, as amended by E.O. 12038, 3 CFR, 1978 Comp., p. 136,
DOE Delegation Order No. 0204-112, 49 FR 6684 (February 22, 1984).
0
2. Section 153.13 is added, to read as follows:
Sec. 153.13 Emergency reconstruction.
The provisions of subpart F of part 157 of this chapter that permit
reconstruction for the purpose of immediately restoring interrupted
service for the protection of life or health or for maintenance of
physical property in an emergency due to a sudden unanticipated loss of
gas supply or capacity are applicable to facilities subject to section
3 of 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
0
1. The authority citation for part 157 continues to read as follows:
Authority: 15 U.S.C. 717-717W, 3301-3432; 42 U.S.C. 7101-7352.
0
2. In Sec. 157.202, the last sentence in paragraph (b)(2)(i) and
paragraph (b)(2)(ii)(C) are revised, and a new paragraph (b)(13) is
added, to read as follows:
Sec. 157.202 Definitions.
* * * * *
(b) Subpart F definitions. * * *
(2)(i) * * * Replacements for the primary purpose of creating
additional main line capacity are not eligible facilities; however,
replacements and the modification of facilities to rearrange gas flows
or increase compression for the primary purpose of restoring service in
an emergency due to sudden unforseen damage to main line facilities are
eligible facilities.
(ii) Exclusions: * * *
[[Page 31605]]
(C) A facility, including compression and looping, that alters the
capacity of a main line, except replacement facilities and facility
modifications covered under paragraph (b)(2)(i) of this section; * * *
* * * * *
(13) Emergency means a sudden unanticipated loss of gas supply or
capacity that requires an immediate restoration of interrupted service
for protection of life or health or for maintenance of physical
property.
0
3. In Sec. 157.203, paragraph (d)(1), insert the following sentence
after the last full sentence ending ``the notice has been provided.'':
Sec. 157.203 Blanket certification.
* * * * *
(d) Landowner notification.
(1) * * * For activity required to restore service in an emergency,
the 30-day prior notice period is satisfied in the event a company
obtains all necessary easements. * * *
* * * * *
0
4. In Sec. 157.205, paragraph (a) introductory text is revised to read
as follows:
Sec. 157.205 Notice procedure.
(a) Applicability. No activity described in Sec. Sec. 157.208(b),
157.211(a)(2), 157.214 or 157.216(b), except for activity required to
restore service in an emergency, is authorized by a blanket certificate
granted under this subpart, unless, prior to undertaking such activity:
* * * * *
0
5. In Sec. 157.207, the introductory text is revised to read as
follows:
Sec. 157.207 General reporting requirements.
On or before May 1, or each year, or in the case of emergency
reconstruction activity, prior to any activity, the certificate holder
must file, in the manner prescribed in Sec. Sec. 157.6(a) and 385.2011
of this chapter, an annual report signed under oath by a senior
official of the company, that lists for the previous calendar year:
* * * * *
0
6. In Sec. 157.208, paragraph (a) is revised to read as follows:
Sec. 157.208 Construction, acquisition, operation, replacement, and
miscellaneous rearrangement of facilities.
(a) Automatic authorization. If the project cost does not exceed
the cost limitations set forth in column 1 of Table I, under paragraph
(d) of this section, or if the project is required to restore service
in an emergency, the certificate holder is authorized to make
miscellaneous rearrangements of any facility, or acquire, construct,
replace, or operate any eligible facility. The certificate holder shall
not segment projects in order to meet the cost limitations set forth in
column 1 of Table I.
* * * * *
PART 375--THE COMMISSION
0
7. The authority citation for part 375 continues to read as follows:
Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16
U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352.
0
8. Section 375.308 is amended as follows:
0
a. In paragraph (w)(3), the word ``and'' is removed;
0
b. In paragraph (w)(4), remove the period at the end of the sentence
and add ``; and'' in its place;
0
c. Paragraph (w)(5) is added,
0
d. In paragraph (x)(5), the word ``and'' is removed;
0
e. In paragraph (x)(6), remove the period at the end of the sentence
and add ``; and'' in its place; and
0
f. Paragraph (x)(7) is added to read as follows:
Sec. 375.308 Delegations to the Director of the Office of Energy
Projects.
* * * * *
(w) * * *
(5) Requests for waiver of the landowner notification requirements
in Sec. 157.203(d) of this chapter.
* * * * *
(x) * * *
(7) Take whatever steps are necessary to ensure the protection of
all environmental resources during the construction or operation of
natural gas facilities, including authority to design and implement
additional or alternative measures and stop work authority.
* * * * *
[FR Doc. 03-13202 Filed 5-27-03; 8:45 am]
BILLING CODE 6717-01-P