INGAA Files Request for Rehearing on Revisions to Auxiliary Installations

 Pursuant to Section 19 of the Natural Gas Act (“NGA”)  and Rule 713 of the Rules of  Practice and Procedure of the Federal Energy Regulatory Commission (“FERC” or  “Commission”), the Interstate Natural Gas Association of America (“INGAA”) submits this  request for rehearing and request for clarification or, in the alternative, rehearing.  

This proceeding was initiated by INGAA when it filed its April 2, 2012 Petition  Requesting The Commission Adhere to its Existing Rules, Regulations and Procedures (“April  2012 Petition”).  Through informal meetings with members of the interstate natural gas pipeline industry, Commission Staff began to promote a change to Section 2.55(a) of the Commission’s  regulations, which deals with auxiliary installations. The Staff’s change to Section 2.55(a)  dismissed the fundamental holding of the Commission order promulgating Section 2.55(a), that  auxiliary installations are not jurisdictional facilities as contemplated in Section 7 of the NGA.   Filing of Application For Certificates of Public Convenience and Necessity, Order No. 148, 14  Fed. Reg. 681 (Feb. 16, 1949) (“Order No. 148”).  The Staff also added an implied right of way  limitation to the definition of auxiliary installations even though no such limitation exists in the  language of the regulation.  This change meant that any installations outside of an existing right  of way or temporarily using ground outside of previously used workspace could not qualify  under Section 2.55(a).  The Staff’s position harmed the pipeline industry by eliminating the  historical, routine and justified practice of making certain of these auxiliary installations outside  of existing rights-of-way for safety, security and other important purposes ancillary to the  provision of interstate pipeline transportation services.  When the Staff persisted in its newly  adopted and erroneous modification of Section 2.55(a), INGAA filed its petition.

Among other things, INGAA’s April 2012 petition asked the Commission to affirm that  Section 2.55(a) did not have an implied right of way limitation and to affirm that it would not  seek to enforce the change recently adopted by Commission Staff.  On December 20, 2012, the  Commission responded to INGAA’s petition in this docket by issuing a Notice of Proposed  Rulemaking entitled “Revisions to the Auxiliary Installations, Replacement Facilities, and Siting and Maintenance Regulations.” The December 2012 NOPR denied INGAA the relief it  requested in its April 2012 petition, wrongly declaring that the change to Section 2.55(a) being  promoted by its Staff always had been the Commission’s rule.    

Although claiming that it was making no change to the meaning of Section 2.55(a), the  December 2012 NOPR proposed revisions to the language of the Commission’s regulations to  state that all activities related to the construction of auxiliary installations must take place within  a company’s certificated right of way using previously approved work spaces.  The Commission  also proposed to add landowner notification requirements for auxiliary installations, replacement  facilities and other activities performed within the right of way.  The Commission acknowledged  that these notification requirements were a change to its regulations.   

INGAA responded to the December 2012 NOPR in two ways.  On January 22, 2013,  INGAA timely filed its request for rehearing from the December 2012 NOPR’s denial of the  relief that INGAA had requested in its April 2012 Petition.  INGAA, on behalf of its members,  was an aggrieved party.  The December 2012 NOPR immediately denied INGAA members the  right previously afforded them under historical and proper regulatory construction to install  auxiliary installations outside of existing rights-of-way and work space under Section 2.55(a)  and imposed an obligation on pipelines to obtain certificate authorization prior to making certain  auxiliary installations.  As to these matters, the December 2012 NOPR was a final agency order.   On March 5, 2013, INGAA also filed comments on the December 2012 NOPR.

On November 22, 2013, the Commission issued a final rule in this proceeding, Revisions  to Auxiliary Installations, Replacement Facilities, and Siting and Maintenance Regulations,  Order No. 790, 145 FERC ¶ 61,154 (2013) (“Final Rule”).  In the Final Rule, the Commission  persists in its erroneous ruling regarding Section 2.55(a) and persists as well in a fiction that its  new ruling does not change what had been the plain and universal understanding of that  provision for approximately 60 years until the December 2012 NOPR.  The Commission refuses  to acknowledge that its previous orders expressly held that auxiliary installations were not  jurisdictional facilities under the NGA.  The Final Rule ignores, misapprehends or disparages  past precedent to achieve, through expediency, a desired result that is so sweeping that it could  not be achieved, even through lawful notice and comment rulemaking.  “It has become axiomatic  that an agency is bound by its own regulations.” Panhandle Eastern Pipe Line Co. v. FERC, 613  F.2d 1120, 1135 (D.C. Cir. 1979).  “The fact that a regulation as written does not provide FERC  a quick way to reach a desired result does not authorize it to ignore the regulation or label it  ‘inappropriate’” Id.  “[T]he requirement that an agency provide reasoned explanation for its  action would ordinarily demand that it display awareness that it is changing position.”  FCC v.  Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).  For all of these reasons, the Final Rule  is unlawful.    

In addition to unlawfully converting an entire class of exempt, non-jurisdictional  auxiliary installations into jurisdictional NGA facilities, the Commission, without referencing a  record of abuse, without identifying any material threat to the Commission’s statutory  obligations, and without providing any premise based on relevant facts, extends regulatory  limitations to these installations that in the past have applied only to separate and distinct  replacement activities.  This is the same infirm approach that resulted in the D.C. Circuit striking down the Commission’s expanded standards of conduct regulations in National Fuel Gas Supply  Corporation v. FERC, 468 F.3d 831 (D.C. Cir. 2006) (“National Fuel”).  The Commission’s  Final Rule is arbitrary and capricious.  It is not the product of reasoned decision making.