[Federal Register Volume 78, Number 233 (Wednesday, December 4, 2013)]
[Rules and Regulations]
[Pages 72794-72813]
[FR Doc No: 2013-28548]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 2, 157, and 380

[Docket Nos. RM12-11-000 and RM12-11-001; Order No. 790]

Revisions to Auxiliary Installations, Replacement Facilities, and
Siting and Maintenance Regulations

AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY:  The Federal Energy Regulatory Commission (Commission) is
issuing this Final Rule to amend its 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-of-way or facility site for the
existing or proposed facilities and use only the same temporary work
space that was or will be used to construct the existing or proposed
facilities; and to codify the common industry practice of notifying
landowners prior to coming onto their property to install auxiliary or
replacement facilities, certain replacements, or conduct maintenance
activities.

DATES:  This rule is effective February 3, 2014.

FOR FURTHER INFORMATION CONTACT:
Gordon Wagner, Office of the General Counsel, Federal Energy Regulatory
Commission, 888 First Street NE., Washington, DC 20426<PHONE_NUMBER>,
<EMAIL_ADDRESS>Katherine Liberty, Office of the General Counsel, Federal Energy
Regulatory Commission, 888 First Street NE., Washington, DC 20426 (202)
502-6491<EMAIL_ADDRESS>Douglas Sipe, Office of Energy Projects, Federal Energy Regulatory
Commission, 888 First Street NE., Washington, DC 20426<PHONE_NUMBER>,
<EMAIL_ADDRESS>Howard Wheeler, Office of Energy Projects, Federal Energy Regulatory
Commission, 888 First Street NE., Washington, DC 20426<PHONE_NUMBER>,
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

145 FERC ] 61,154

United States of America

Federal Energy Regulatory Commission

Revisions to Auxiliary Installations, Replacement Facilities, and
Siting and Maintenance Regulations

Docket Nos. RM12-11-000; RM12-11-001

Order No. 790

Final Rule

                            Table of Contents
------------------------------------------------------------------------
                                                         Paragraph Nos.
------------------------------------------------------------------------
I. Background........................................                  2
    A. Request for Clarification of Section 2.55(a)                    8
     of the Commission's Regulations.................
    B. Notice of Proposed Rulemaking (NOPR)..........                  9
II. Discussion.......................................                 12
    A. Section 2.55(a) Auxiliary Facilities..........                 12
        1. Commission Jurisdiction...................                 13
        2. Section 2.55 Siting and Construction                       17
         Limitations.................................
        3. Environmental Issues......................                 40
        4. Compliance with Executive Orders..........                 43
        5. Section 2.55 Authorization and Part 157,                   45
         Subpart F, Blanket Authorization............
        6. ``Grandfathering'' Existing Section                        49
         2.55(a) Installations.......................
        7. Burden of Section 2.55's Right-of-Way                      51
         Requirement.................................
    B. Landowner Notification........................                 54
        1. Jurisdictional Basis and Need for                          58
         Landowner Notification......................

        2. Exceptions to Landowner Notification                       62
         Requirements................................
        3. Part 157 Landowner Notification Exemption                  64
         for Replacement Projects....................
        4. Requirement that Notification Inform                       65
         Landowners of the Availability of the
         Commission's Dispute Resolution Division....
        5. Landowner Notification for Maintenance                     68
         Activities..................................
        6. Burden Resulting from Notification                         73
         Requirement.................................
III. Information Collection Statement................                 80
IV. Environmental Analysis...........................                 88
V. Regulatory Flexibility Act........................                 89
VI. Document Availability............................                 92
VII. Effective Date and Congressional Notification...                 95
------------------------------------------------------------------------

145 FERC ] 61,154

United States of America

Federal Energy Regulatory Commission

Before Commissioners: Jon Wellinghoff, Chairman; Philip D. Moeller,
John R. Norris, Cheryl A. LaFleur, and Tony Clark.

Revisions to Auxiliary Installations, Replacement Facilities, and
Siting and Maintenance Regulations

Docket Nos. RM11-12-000; RM11-12-001

Order No. 790

Final Rule

(Issued November 22, 2013)

    1. The Federal Energy Regulatory Commission (Commission) is issuing
this Final Rule to amend its regulations to (1) clarify that auxiliary
installations added to existing or proposed interstate transmission
facilities under section 2.55 of the regulations \1\ must be located
within the authorized right-of-way or facility site for the existing or
proposed facilities and use only the same temporary work space that was
or will be used to construct the existing or proposed facilities; and
(2) codify the common industry practice of notifying landowners prior
to coming onto their property to install auxiliary or replacement
facilities under section 2.55; certain replacements under Part 157,
Subpart F; or conduct maintenance activities under section 380.15.
---------------------------------------------------------------------------

    \1\ 18 CFR 2.55 (2013).
---------------------------------------------------------------------------

I. Background

    2. 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.'' \2\ To ``avoid the
filing and consideration of unnecessary applications for
certificates,'' \3\ 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 an authorized system, the Commission added section 2.55
to its regulations.\4\ 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, facility-specific section 7(c)
certificate authorization.
---------------------------------------------------------------------------

    \2\ 15 U.S.C. 717f(c)(1)(A) (2012).
    \3\ Filing of Applications for Certificates of Public
Convenience and Necessity, Notice of Proposed Rulemaking, NOPR, 13
FR 6253, at 6254 (October 23, 1948).
    \4\ Section 2.55 went into effect in 1949. The Commission
subsequently considered expanding section 2.55, but stated that
although it ``recognizes the desirability of dealing with minor
installations on a practical basis,'' it would not rely on section
2.55 because of ``doubts that the Natural Gas Act authorizes it to
further expand its rule excluding certain facilities from the
certification requirements''; instead the Commission ``recommended
to the Congress that it be given such authority'' to ``permit[]
greater flexibility in its procedures with respect to rate filings
and certification of natural-gas facilities.'' Amending the
Commission's General Rules and Regulations, Order No. 185, 15 FPC
793, at p. 794 (1956). Such authority was not forthcoming. In an
effort to forego issuing an individual certificate authorization in
advance of every single jurisdictional action, the Commission
provided for companies to file a single certificate application
under section 157.6 that ``covered in general outline along the
lines of a budget estimate the proposed routine construction
intended to be undertaken by it during the current or ensuing fiscal
year,'' describing the facilities, costs, capacity, purpose,
construction schedule, customers affected, effects on gas supply,
rates, service, etc. Id. The Commission added section 2.58 to its
regulations for these ``budget-type'' certificate applications, see
Gas Purchase Facilities--Budget-Type Certificate Applications, Order
No. 247, 27 FPC 1119 (1962). These regulations were removed in 1982
when the blanket certificate program was instituted, which offered
companies a streamlined means to obtain certificate authorization
for a limited set of routine and well understood facilities.
Interstate Pipeline Certificates for Routine Transactions, Order No.
234, 47 FR 24254 (June 4, 1982), FERC Stats. & Regs., Regulations
Preambles 1982-1985 ] 30,368 (1982), order on reh'g, Order No. 234-
A, 47 FR 38871 (September 3, 1982), FERC Stats. & Regs., Regulations
Preambles 1982-1985 ] 30,389 (1982), amended by, Sales and
Transportation by Interstate Pipelines and Distributors; Expansion
of Categories of Activities Authorized Under Blanket Certificate,
Order No. 319, 48 FR 34875 (August 1, 1983), FERC Stats. & Regs.,
Regulations Preambles 1982-1985 ] 30,479 (1983). The scope of the
blanket-eligible facilities has been expanded several times since
1982. See, e.g., Revisions to the Blanket Certificate Regulations
and Clarification Regarding Rates, Order No. 686, 71 FR 63680
(October 31, 2006), FERC Stats. & Regs. ] 31,231 (2006), order on
reh'g and clarification, Order No. 686-A, 72 FR 37431 (July 10,
2007), FERC Stats. & Regs. ] 31,249 (2007), order on reh'g, Order
No. 686-B, 72 FR 54818 (September 27, 2007), FERC Stats. & Regs. ]
31,255 (2007).
    \5\ 18 CFR 2.55 (2013).
---------------------------------------------------------------------------

    3. 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\
---------------------------------------------------------------------------

    \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, e.g., Algonquin Gas Transmission Company
(Algonquin), 57 FERC ] 61,052 (1991), in which the Commission found
a company's reliance on section 2.55(a) to install an air
stabilization unit was unwarranted because the unit was necessary
for the company to meet the terms of its service agreements and
comply with safety requirements, and thus was not only for the
purpose of obtaining more efficient or more economical operation of
its transmission facilities. See also West Texas Gas, Inc., 62 FERC
] 61,039 (1993), in which the Commission found section 2.55(a) did
not apply to facilities constructed to interconnect with another
pipeline because the purpose of the interconnect was to enable the
company to gain access to cheaper sources of gas, and thus was not
only for the purpose of obtaining more efficient or more economical
operation of its transmission facilities and Natural Gas Pipeline
Company of America, 114 FERC ] 61,061, at n.4 (2006), in which the
Commission rejected a company's effort to employ section 2.55(a) to
undertake well recompletions in a storage reservoir, ``because the
construction is designed to provide incremental storage capacity
rather than to maintain the current level of service for existing
customers,'' and consequently required the company to obtain case-
specific authorization for the recompletions (the company was
permitted to rely on section 2.55(a) to make other modifications to
its storage facility, including adding station piping, header and
isolation valves with blowdowns, control valves, gas coolers, a
transformer, field inlet separation facilities, and pigging
equipment).

---------------------------------------------------------------------------

    4. Originally, natural gas companies were not required to notify
the Commission in advance of construction under section 2.55(a).
However, in 1999 the Commission determined that when companies plan to
add auxiliary facilities to a project that has already been authorized,
but not yet completed, or to a project for which authorization is still
pending, prior notification to the Commission is needed in order to
afford the Commission the opportunity to assess the auxiliary
facilities' environmental impacts, impacts which, when combined with
the impacts of the construction and operation of the facilities that
will be augmented by the auxiliary facilities, could potentially alter
the Commission's conclusions regarding the overall environmental impact
of the project.
    5. As a result, Order No. 603 \7\ revised section 2.55(a)(2) to
require that if a company 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, then the company must
provide a description of the auxiliary facilities and their location to
the Commission at least 30 days in advance of their installation.\8\ In
the case of auxiliary facilities that will be constructed in
conjunction with a project for which an application under Part 157,
Subpart A for case-specific certificate authority is pending, the
auxiliary facilities must be described in the application's
environmental report, as required by section 380.12 of the Commission's
regulations, or in a supplemental filing while the application is
pending.\9\ The Commission explained these advance notification
requirements are necessary in order to afford the Commission time to
include the environmental impacts of the auxiliary facilities as part
of its environmental review of the project.\10\
---------------------------------------------------------------------------

    \7\ Revisions of Existing Regulations Under Part 157 and Related
Sections of the Commission's Regulations Under Natural Gas Act,
Order No. 603, 64 FR 26572, at 26574 (May 14, 1999), FERC Stats. &
Regs., Regulations Preambles July 1996-December 2000 ] 31,073
(1999), order on reh'g, Order No. 603-A, 64 FR 54522 (October 7,
1999), FERC Stats. & Regs., Regulations Preambles July 1996-December
2000 ] 31,081 (1999), order on reh'g, Order No. 603-B, 65 FR 11,462
(March 3, 2000), FERC Stats. & Regs., Regulations Preambles July
1996-December 2000 ] 31,094 (2000).
    \8\ See 18 CFR 2.55(a)(2)(ii) (2013).
    \9\ See 18 CFR 2.55(a)(2)(iii) (2013). In the case of auxiliary
facilities to be constructed in conjunction with a proposed project
for which an application for case-specific certificate authority is
pending, section 2.55(a)(2)(iii) requires that the applicant
describe the auxiliary facilities in the application's section
380.12 Resource Report 1--General Project Description. Section
380.12(c)(1) requires the applicant to describe and provide location
maps for ``all jurisdictional facilities, including all aboveground
facilities associated with the project (such as: meter stations, pig
launchers/receivers, valves), to be constructed, modified,
abandoned, replaced, or removed, including related construction and
operational support activities and areas such as maintenance bases,
staging areas, communications towers, power line, and new access
roads (roads to be built or modified).'' Section 380.12(c)(2)
requires that the applicant's Resource Report 1 identify and
describe ``all nonjurisdictional facilities, including auxiliary
facilities, that will be built in association with the project,
including facilities to be built by other companies.'' If a company
with a pending application for case-specific certificate authority
determines that it will also need to construct auxiliary facilities,
section 2.55(a)(2)(iii) requires that the applicant make a
supplemental filing describing the auxiliary facilities while the
application is pending.
    \10\ Revisions to Regulations Governing NGPA Section 311
Construction and the Replacement of Facilities, Order No. 544, 57 FR
46,487 (October 9, 1992), FERC Stats. & Regs., Regulations Preambles
January 1991-June 1996 ] 30,951 (1992), order on reh'g, Order No.
544-A, 58 FR 57730 (October 27, 1993), FERC Stats. & Regs.,
Regulations Preambles January 1991-June 1996 ] 30,983 (1993).
---------------------------------------------------------------------------

    6. 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
delivery capacity.\11\ Section 2.55(b) replacement projects can go
forward without case-specific or blanket certificate authorization.
Further, the 30-day prior notice requirement in section 2.55(b)(2) for
more expensive replacement projects only requires notice to the
Commission, not landowners.\12\
---------------------------------------------------------------------------

    \11\ 18 CFR 2.55(b) (2013).
    \12\ The 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.
---------------------------------------------------------------------------

    7. In Order No. 603 the Commission specified that all replacement
facilities must be constructed within the previously authorized right-
of-way or facility site for the existing facilities and use the same
temporary work spaces used for construction of the existing
facilities.\13\ The Commission reasoned that section 2.55(b)
replacements ``should only involve basic maintenance or repair to
relatively minor facilities,'' where it has been determined that no
significant impact to the environment would occur.\14\ The Commission
suggested that in situations where a company wants to use land outside
previously authorized areas, it may be able to rely on its blanket
certificate authority rather than 2.55(b) to undertake the project.\15\
---------------------------------------------------------------------------

    \13\ Order No. 603, 64 FR 26572 at 26574-76, FERC Stats. & Regs.
] 31,073 and 18 CFR 2.55(b) (2013).
    \14\ Order No. 603-A, 64 FR 54522 at 54524, FERC Stats. & Regs.
] 31,081.
    \15\ Order No. 603, 64 FR 26572 at 26580, FERC Stats. & Regs. ]
31,073.
---------------------------------------------------------------------------

A. Request for Clarification of Section 2.55(a) of the Commission's
Regulations

    8. On April 2, 2012, the Interstate Natural Gas Association of
America (INGAA) requested clarification regarding the installation of
auxiliary facilities under section 2.55(a) of the Commission's
regulations.\16\ INGAA maintained that Commission staff had 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 facility 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).\17\ 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
right-of-way and work space constraints stated by staff do not apply to
section 2.55(a) auxiliary installations.
---------------------------------------------------------------------------

    \16\ On 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.
    \17\ 5 U.S.C. 553 (2012).

---------------------------------------------------------------------------

B. Notice of Proposed Rulemaking (NOPR)

    9. On December 20, 2012, the Commission issued a NOPR proposing to
revise its regulations to clarify that, as with replacement projects
under section 2.55(b), all auxiliary installation 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.\18\ Timely comments on the NOPR were submitted
by INGAA; \19\ Golden Triangle Storage, Inc. (Golden Triangle);
MidAmerican Energy Pipeline Group (MidAmerican Energy); Southern Star
Central Gas Pipeline, Inc. (Southern Star); National Fuel Supply
Corporation and Empire Pipeline, Inc. (National Fuel); and WBI Energy
Transmission, Inc. (WBI Energy). Golden Triangle, MidAmerican Energy,
Southern Star, and WBI Energy support INGAA's comments.
---------------------------------------------------------------------------

    \18\ Revisions to Auxiliary Installations, Replacement
Facilities, and Siting and Maintenance Regulations, NOPR, 78 FR 679,
683 (January 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.
    \19\ On January 22, 2013, INGAA made a filing styled as a
request for rehearing of the NOPR, and on March 5, 2013, it filed
comments on the NOPR. INGAA argues the NOPR functioned as a Final
Rule by giving immediate effect to a change in the regulations
without providing affected entities notice and an opportunity to
comment. We do not believe the NOPR's clarification concerning
section 2.55(a) effected any change; rather, it articulated
existing, long-standing constraints and obligations with respect to
auxiliary installations. Because the NOPR does not constitute an
instant Final Rule, we find no cause to consider requests for
rehearing of the NOPR. Nevertheless, we will accept INGAA's request
for rehearing and treat it as comments in response to the NOPR.
Thus, regardless of the distinction between INGAA's and the
Commission's characterization of the NOPR, the concerns INGAA raises
in both of its submissions will be addressed herein. We will
identify INGAA's self-styled request for rehearing as January 2013
Comments and its subsequent submission as March 2013 Comments.
---------------------------------------------------------------------------

    10. The commentors object to the Commission's position that
auxiliary installations to enhance existing facilities must be located
within the previously authorized areas for the existing facilities,
arguing the Commission has not heretofore imposed such a limitation on
the siting or construction of auxiliary facilities.
    11. The commentors also oppose the NOPR's proposed new requirement
that companies give prior notice to affected landowners before
commencing construction of auxiliary or replacement facilities under
section 2.55 of the regulations or maintenance activities under section
380.15 of the regulations. Although the commentors do not dispute the
Commission's position in the NOPR that it is appropriate to give
landowners prior notice to the extent practicable in order to minimize
inconvenience to landowners, the commentors contend the proposed notice
procedures described in the NOPR (1) are unnecessary, noting that some
companies already comply with the spirit of this stipulation, and (2)
are impractical, particularly with respect to urgent or unanticipated
maintenance activities.

II. Discussion

A. Section 2.55(a) Auxiliary Facilities

    12. In this Final Rule, the Commission revises its regulations, as
proposed in the NOPR, 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
facility site for the existing or proposed facilities and use only the
same temporary work space that was or will be used to construct the
existing or proposed facilities.
1. Commission Jurisdiction
    13. INGAA argues that section 2.55(a) can be distinguished from
section 2.55(b) on the grounds that auxiliary facilities are not needed
to provide certificated services, and therefore are not jurisdictional,
while replacement facilities are essential to provide certificated
services, and therefore are jurisdictional. We disagree. Although
section 2.55 states that ``for purposes of section 7(c) of the Natural
Gas Act, as amended, the word facilities as used therein shall be
interpreted to exclude'' auxiliary and replacement facilities,\20\ the
Commission's choice of wording in drafting this section cannot change
the fact that section 2.55(a) auxiliary facilities and section 2.55(b)
replacement facilities nevertheless are jurisdictional facilities for
purposes of section 7 of the NGA. It went without saying in 1949, and
has largely gone without saying since, that all section 2.55 facilities
are subject to the Commission's jurisdiction. This is obvious with
respect to replacements, since the new facilities step into the shoes
of the aging facilities they replicate, and so assume the replaced
facilities' jurisdictional status. Section 2.55(a) auxiliary
installations are also jurisdictional, comprising that category of
facilities that enable companies to operate existing or proposed
jurisdictional facilities more efficiently or economically. 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.\21\
---------------------------------------------------------------------------

    \20\ Hence the title of section 2.55, Definition of terms used
in section 7(c), and the placement of section 2.55 in Part 2,
General Policy and Interpretations.
    \21\ If facilities are installed in reliance on section 2.55,
but do not meet the criteria of this section, then they are
jurisdictional facilities installed without the requisite Commission
certificate authorization. For example, in Algonquin, after finding
facilities installed under color of section 2.55(a) did not qualify
under that section, we directed the company to show cause ``why it
did not violate and is not violating section 7(c) of the Natural Gas
Act by constructing and operating [facilities] without obtaining a
certificate from the Commission.'' 57 FERC ] 61,052, at 61,205-06.
The company subsequently obtained case-specific certificate
authorization for the facilities at issue in Boston Gas Company, 70
FERC ] 61,122, Ordering Paragraph (F) (1995).
---------------------------------------------------------------------------

    14. INGAA states that the NGA mandates that any jurisdictional
facility must be certificated. We concur. As we have stated: ``Section
2.55 of the Commission's regulations serves, in effect, as standing
authorization for pipelines to perform periodic maintenance and routine
replacement'' in order to ``permit pipelines to undertake limited
construction projects without waiting for NGA section 7(c) case
specific certificate authorization.'' \22\ In other words, section 2.55
grants automatic certificate authorization for a limited class of
facilities.
---------------------------------------------------------------------------

    \22\ Emergency Reconstruction of Interstate Natural Gas
Facilities Under the Natural Gas Act, Notice of Proposed Rulemaking,
68 FR 4120 (January 28, 2003), FERC Stats. & Regs. ] 32,567, at
34,679-80 (2003). In the interest of administrative and industrial
efficiency, we have dismissed requests for case-specific section 7
certificate authorization for facilities that qualified for this
``standing authorization'' provided by section 2.55. For example, in
Columbia Gas Transmission Corporation, 68 FERC ] 61,156, at 61,743
(1994), we dismissed a request for case-specific section 7
certificate authorization to install a pigging and a methanol
injection system after finding that the proposed facilities would
serve only for the purpose of obtaining more efficient or more
economical operation of an authorized transmission system, and thus
qualified as auxiliary facilities that could and should be installed
under section 2.55(a).
---------------------------------------------------------------------------

    15. To qualify under section 2.55(a), facilities must serve ``only
for the purpose of obtaining more efficient operation or more
economical operation of the authorized or proposed

transmission facilities'' (emphasis added).\23\ Therefore, we have
always assumed that section 2.55(a) would necessarily be confined to
projects small enough and inconsequential enough that their
environmental and economic impacts would not merit the close scrutiny
provided by (and time and expense consumed by) case-specific NGA
section 7 review.\24\ Auxiliary facilities installed in reliance on
section 2.55(a) will be added either to existing interstate
transmission facilities that were subject to environmental review prior
to construction or to a proposed project, in which case the applicant
must identify in its certificate application the auxiliary facilities
it plans to install in conjunction with the project, so that the
auxiliary facilities will be included in the review of the project's
environmental impacts.\25\ In the case of section 2.55(b) replacement
facilities, an environmental review was performed prior to construction
of the existing facilities to be replaced,\26\ and the replacement
facilities must be in the same right-of-way and be substantially
equivalent in design capacity to the existing facilities.\27\
---------------------------------------------------------------------------

    \23\ Supra n.6.
    \24\ The sentiment in Order No. 603-A, 64 FR 54522 at 54524,
FERC Stats. & Regs. ] 31,081, that replacements ``should only
involve basic maintenance or repair to relatively minor facilities
where the Commission has determined that no significant impact to
the environment will occur'' is applicable as well to auxiliary
installations.
    \25\ As discussed above, if a company plans to rely on section
2.55(a) to install auxiliary facilities in conjunction with a
project under its Part 157 blanket construction certificate that it
is subject to prior notice, the company must give the Commission
notice of the type and planned location of auxiliary facilities at
least 30 days prior to installation. See 18 CFR 2.55(a)(2)(ii)
(2013).
    \26\ In the case of existing facilities constructed pursuant to
blanket certificate authority, the facilities' construction was
subject to the blanket program's section 157.206(b) environmental
compliance provisions.
    \27\ For example, if a natural gas company wants to replace a
deteriorated section of 12-inch-diameter pipe with 24-inch-diameter
pipe, it generally cannot rely on section 2.55(b) to undertake such
work, as the use of larger pipe could require larger equipment and
greater ground disturbance and thus raise environmental issues that
were not considered when the12-inch-diameter pipeline was
authorized. In addition, while the replacement of deteriorated
facilities is necessary to maintain existing service levels, section
2.55 does not provide the opportunity for a company's customers to
raise issues regarding the replacement project's cost. Thus,
limiting replacement activities under section 2.55(b) to the
construction of facilities that will be substantially equivalent in
design capacity to the existing facilities is appropriate. If a
company believes that there is a need for the replacement facilities
to have significantly greater capacity, it can undertake the
replacement project under its Part 157, Subpart F blanket
construction certificate program, subject to the regulations' cost
limits and environmental conditions. If the replacement project will
exceed the blanket certificate cost limits or the company cannot
satisfy the blanket certificate regulations' environmental
conditions, the company can file an application for case-specific
certificate authority and initiate a proceeding in which its
customers and other parties can raise any concerns. Note that as
discussed in the NOPR, to account for subsequent modifications
having been made to original facilities--in particular blanket
certificate projects that in adding to or altering original
facilities establish new permanent right-of-way and new temporary
work space--we will revise the section 2.55(b)(1)(ii) requirement
that replacements must be confined to areas authorized for the
``original facility'' to allow for replacements within areas
authorized for the ``existing facility.''
---------------------------------------------------------------------------

    16. Since the wording of section 2.55 of the regulations cannot
work to exclude auxiliary and replacement facilities from the scope of
our jurisdiction under NGA section 7, section 2.55 effectively provides
not an NGA-exemption, but a type of ``blanket'' certificate authority,
so that a company does not need to seek additional, specific
certificate authority to add minor auxiliary facilities to its
previously certificated facilities or to replace its previously
certificated facilities. Section 2.55 provides pre-granted or automatic
certificate authorization to a specific, limited set of facilities, and
does so to avoid triggering an unnecessary level of review for certain
minor modifications to an existing or pending interstate transmission
system. Section 2.55 is both a precursor and complement to our Part 157
blanket certificate program. By providing non-case specific 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.
2. Section 2.55 Siting and Construction Limitations
    17. In 1994, we first had cause to clarify the parameters of
section 2.55, in response to a request to increase operating pressures
and make other changes to a pipeline system in Arkla Energy Resources
Company (Arkla).\28\ In reviewing the existing facilities, it came to
light that Arkla had undertaken several years before, in reliance on
section 2.55(b), to replace 91 miles of old 18-inch-diameter pipe on a
segment of its system by abandoning it in place and installing new 20-
inch-diameter pipe along a parallel path, which had required widening
the existing right-of-way along portions of the route by an additional
25 feet. We acknowledged that (1) section 2.55(b) did not ``specify
whether replacement facilities must be constructed in the existing
right-of-way,'' and that (2) there was no case law that ``directly
addressed this issue.'' \29\ However, we explained that construction
outside the right-of-way that was studied and authorized for the
existing facilities potentially could have environmental impacts that
had not been included in our environmental review of the facilities
being replaced.\30\ Thus, we clarified that:
---------------------------------------------------------------------------

    \28\ 67 FERC ] 61,173 (1994), order on reh'g, NorAm Gas
Transmission Company, 70 FERC ] 61,030 (1995) (Arkla/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.
    \29\ 67 FERC ] 61,173 at 61,516.
    \30\ Id.

    [S]ection 2.55(b) means that replacement facilities must be
constructed within the existing right-of-way. The reason is simple.
The authority to replace a facility and to establish a right-of-way
should be limited by the terms and locations delineated in the
original construction certificate. Thus, a certificate holder that
later establishes a new right-of-way for purposes of replacement
engages in an unauthorized activity which is outside the parameters
of the original certificate order.\31\
---------------------------------------------------------------------------

    \31\ Id. As we noted in Arkla/NorAm, at the time replacement
activities limited to the existing right-of-way were categorically
excluded by section 380.4(24) based on the assumption that impacts
on the environment will be insignificant if construction activities
to replace facilities are limited to work within a pipeline's
existing compressor station yard or right-of-way. Following Arkla/
NorAm, we concluded that even if construction activities will be
confined to the existing right-of-way, there may be the need for
further environmental review if a replacement project involves the
construction of extensive facilities, or there have been changes in
land use over time in the vicinity of the existing facilities (for
example, the existing facilities may have been constructed in an
area that was rural in nature at the time but is now densely
populated), or the pipeline company's replacement project may be
associated with the construction of other, non-jurisdictional
facilities that could also have environmental impacts. We rectified
the situation in Order No. 544, explaining that because we have ``a
responsibility under NEPA to review replacement activities that pose
potentially serious, adverse environmental impact . . . we need to
be informed of such activities before they occur.'' Order No. 544,
57 FR 46487, at 46491 (October 9, 1992); FERC Stats. & Regs. ]
30,951, at 30,686-87 (1992). Thus, while most replacement projects
involve minor facilities and no potential for significant
environmental impacts, we amended section 2.55(b) to require that
companies notify us at least 30 days prior to commencing replacement
projects so that there is time for staff to assess whether the
project needs to be delayed in order to conduct further
environmental review.

    18. We subsequently codified this Arkla/NorAm clarification in
Order No. 603 by amending section 2.55(b) to add the phrase ``will be
located in the same right-of-way or on the same site as the facilities
being replaced, and will be constructed using the temporary work space
used to construct the original

facility.'' \32\ In this rulemaking proceeding, we are clarifying that
this same right-of-way/work space limitation is equally applicable to
auxiliary installations under section 2.55(a). Rather than provide
clarification in a case-specific proceeding, as the Commission did in
Arkla/NorAm, and then revise the regulation in a subsequent rulemaking
proceeding, here we conflate clarification-to-codification for section
2.55(a) into this single proceeding.
---------------------------------------------------------------------------

    \32\ Order No. 603, 64 FR 26572 (May 14, 1999), FERC Stats. &
Regs. ] 31,073 (1999). INGAA asserts the NOPR in this proceeding
erroneously stated that the Commission did not address section
2.55(a) auxiliary facilities in Order No. 603 when it revised
section 2.55(b) to limit replacement projects to the originally
authorized rights-of-way and work spaces for the existing
facilities. While, as noted above, Order No. 603 did indeed address
section 2.55(a) auxiliary facilities, specifically adding the
notification requirements of section 2.55(a)(2), Order No. 603 did
not address the right-of-way requirements relating to the
installation of auxiliary facilities because the Commission assumed
that there would be no need for gas companies to go outside
previously authorized or proposed rights-of-way and work spaces in
order to install minor facilities that, as specified in section
2.55(a), are ``merely auxiliary or appurtenant'' to and ``only for
the purpose of obtaining more efficient or more economical operation
of the authorized or proposed transmission facilities.'' We
explained in the NOPR in this proceeding that Order No. 603, as it
pertained to spatial limitations on the construction of facilities,
dealt specifically with replacement facilities, and therefore only
discussed the rationale for requiring section 2.55(b) replacement
facilities to be located within an existing right-of-way. We also
explained that no party raised any issue in the Order No. 603
rulemaking proceeding regarding spatial limitations on the
installation of auxiliary facilities under section 2.55(a), and
therefore we saw no need in Order No. 603 to discuss whether the
construction and location of auxiliary installations to enhance
existing facilities must fall within the same footprint as the
existing facilities. NOPR, FERC Stats. & Regs. ] 32,696 at P 15. The
NOPR also pointed out that nothing in Order No. 603 evinced an
intent to permit auxiliary facilities or auxiliary installation
activities outside of authorized rights-of-way and work spaces. Id.
Thus, although we accept that the NOPR could have provided a more
precise summary of Order No. 603, we reject INGAA's claim that the
NOPR misrepresented Order No. 603, particularly since the NOPR
describes concerns discussed in Order No. 603 with respect to
auxiliary facilities, and recites the resulting revisions made to
section 2.55(a). Id. P 4.
---------------------------------------------------------------------------

    19. As in Arkla/NorAm, construction outside the right-of-way could
have environmental impacts that were not included in our environmental
review of the existing facilities. In such circumstances, we could not
fulfill our NEPA responsibilities if we were to allow companies to
continue acquiring additional rights-of-way and work spaces to install
auxiliary facilities under color of section 2.55(a) in areas not
included in the environmental reviews for existing and proposed
transmission facilities. We must ensure that environmental reviews are
performed and appropriate mitigation measures identified, and this NEPA
obligation extends to additional areas landowners may cede to gas
companies for jurisdictional activities or facilities. While the
environmental review conducted by the Commission in a certificate
proceeding encompasses a corridor wider than the right-of-way and
temporary work spaces eventually authorized, land usage and other
circumstances can change over time, particularly in areas in which no
jurisdictional facilities are located, and the Commission's findings
based on its environmental review in a past certificate proceeding may
no longer be valid for the entire corridor originally studied. This
makes it reasonable and necessary to confine all auxiliary facilities
and construction activities under section 2.55 to Commission-authorized
rights-of-way and work spaces.
    20. INGAA states that ``[t]he Commission has not been confronted
with issues resulting from auxiliary installations outside an existing
right-of-way similar to the issues that arose in Arkla/NorAm from
replacement facilities.'' \33\ We acknowledge that we are not aware of
any section 2.55(a) auxiliary activities outside the authorized right-
of-way approaching the scale of the section 2.55(b) replacement
activities outside the right-of-way that came to light during the
Arkla/NorAm proceeding.\34\ Nevertheless, the issues raised for
sections 2.55(a) and (b) activities are the same.\35\ We covered these
issues in the NOPR, identifying our principle concern as the absence of
any review of the environmental impacts of activities outside of
authorized areas.
---------------------------------------------------------------------------

    \33\ INGAA's January 2013 Comments at p. 15.
    \34\ Arkla had made numerous egressions from the existing right-
of-way and acquired significant additional land rights without the
Commission's knowledge in order to widen the existing right-of-way
by 25 feet along significant portions of the 91 miles of pipeline
that was replaced. Arkla had needed the wider right-of-way in order
to use larger-diameter replacement pipe that it laid alongside the
old pipe that was abandoned in place.
    \35\ See Arkla 67 FERC ] 61,173 at 61,517-18.
---------------------------------------------------------------------------

    21. INGAA emphasizes that ``cathodic protection equipment,''
``electrical and communication equipment,'' ``pig launcher/receivers,''
and ``buildings'' are listed specifically in section 2.55 as examples
of auxiliary installations, and contends these types of facilities
typically extend beyond a pipeline's right-of-way and/or require
additional work space to install.\36\ We do not find these examples
sufficient to preclude our action here. While we understand that the
installation of any particular one of the types of facilities named in
section 2.55(a)(1) may require additional right-of-way or work space,
if this is the case, then that particular facility could not be
installed pursuant to section 2.55(a). There are any number of cathodic
protection equipment, electrical and communication equipment, pig
launcher/receivers, and buildings that have been and can be added
without straying beyond the confines of previously authorized areas,
and such facilities can be installed pursuant to section 2.55(a). As
discussed below, section 2.55(a) will continue to reduce the burden
that would be imposed if every natural gas facility required case-
specific certificate authorization. Our decision to revise our
regulations to explicitly confine section 2.55(a) auxiliary facilities
to Commission-authorized rights-of-way and work spaces is necessary to
clarify industry misinterpretations and to meet our obligations under
NEPA, as discussed above, which cannot be fulfilled if we allow
companies to construct auxiliary facilities in areas outside of
existing rights-of-way. Further, while less convenient, most auxiliary
installation projects that do not qualify under section 2.55(a) because
additional right-of-way or work space is needed can be undertaken by
companies by relying on their Part 157 blanket construction
certificates, subject to those regulations' environmental and cost
conditions. If a company cannot satisfy the blanket certificate
regulations' environmental and cost conditions, it can file an
application to initiate a proceeding for case-specific certificate
authority, during which the Commission will conduct an

environmental review and identify any appropriate mitigation
measures.\37\
---------------------------------------------------------------------------

    \36\ See INGAA's January 2013 Comments at p. 31. In several
instances, commentors describe contemporary cathodic protection
components as often being located outside an established right-of-
way. However, in 1949 when ``cathodic protection equipment'' was
included in section 2.55(a), cathodic protection commonly was
provided by passive systems that rely on the electrical potential
between the pipeline and anode. Such systems require close spacing
between the pipeline and anode, and therefore would likely be placed
within the right-of-way. Thus, the inclusion of cathodic protection
equipment in the list of auxiliary facilities that may qualify for
purposes of section 2.55(a) reflected the fact that, at least in
some instances, additional right-of-way or work space is not needed
to install such equipment. The 1949 inclusion of ``cathodic
protection equipment'' in section 2.55(a) did not anticipate the
impressed current systems commonly used today, which require that
anodes be placed some distance (e.g., 100 meters) from the pipeline,
far beyond the typical width of right-of-way needed or authorized
for laying pipe in the ground. Nonetheless, we note that impressed
current systems which use deep well anode beds, can be set entirely
within the typical width of a right-of-way and can qualify under
section 2.55(a).
    \37\ For example, a company that needs a larger right-of-way and
more work space for pig launching equipment will not be able to
install the equipment under its Part 157 blanket certificate if in
the course of performing required surveys an endangered species is
identified. In that case, the company may still be able to go
forward with the project if it files an application for case-
specific certificate authority, depending on the results of the
Commission's environmental review, including the required formal
consultation with the U.S. Fish and Wildlife Service, and whether
adequate mitigation measures to protect the endangered species can
be fashioned.
---------------------------------------------------------------------------

    22. Commenters raised specific examples. INGAA, Southern Star, and
National Fuel observe that the list of auxiliary installations includes
``buildings,'' and contend that generally it is not feasible to
construct buildings within the previously authorized right-of-way
containing existing pipeline facilities. They assert that the inclusion
of ``buildings'' in section 2.55(a) therefore is at odds with the
NOPR's position that section 2.55(a) has never authorized the
construction of auxiliary facilities on newly acquired right-of-way.
Obviously, as Southern Star points out, a gas company is not going to
be able to locate a large new headquarters building for hundreds of
personnel within an existing right-of-way authorized for a
pipeline.\38\ However, we do not agree that the inclusion of
``buildings'' in section 2.55(a) implicitly validates companies'
reliance on section 2.55(a) to construct even small buildings such as a
tool shed on newly acquired right-of-way.\39\ While section 2.55(a) can
be relied upon to construct housing for compression, communication,
electrical and other equipment and facilities needed to operate
pipeline systems, section 2.55(a) can only be relied upon when such
structures can be located within existing or proposed rights-of-way or
facilities' site. Just as section 2.55(a) cannot be relied upon to
install auxiliary facilities if a company will need to use a temporary
work space that was not studied during a prior environmental review by
the Commission, section 2.55(a) also is not intended for auxiliary
installations where a gas company's plans include other types of land
use described by INGAA and National Fuel, such as construction of a new
access road or the temporary use of previously undisturbed land to
store pipe, equipment, or machinery. While the commentors point out
that a company generally does not need certificate authority to acquire
the land rights to construct an access road or to store equipment and
machinery, this makes no difference in whether a project qualifies
under section 2.55(a).
---------------------------------------------------------------------------

    \38\ Southern Star's Comments at p. 4.
    \39\ We note that a new corporate headquarters building is not a
``natural gas facility'' which requires certification under the NGA.
---------------------------------------------------------------------------

    23. 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 natural gas
company's construction activities may have adverse environmental
impacts. Thus, even when all planned auxiliary facilities can be
located entirely within an existing or proposed right-of-way, a project
does not qualify under section 2.55(a) if construction of the auxiliary
facilities will be undertaken in conjunction with other activities,
such as building an access road or clearing and leveling nearby areas
to store materials or equipment, that will occur outside the existing
or proposed right-of-way and use areas that have not been
environmentally reviewed in connection with the past or pending
construction of other jurisdictional facilities. If a pipeline company
plans to disturb any area in the process of constructing auxiliary
facilities that was not or will not be subject to environmental review,
the company must undertake the auxiliary installation under the Part
157 blanket certificate regulations or file an application for case-
specific certificate authority so that the Commission has an
opportunity to conduct an environmental study to consider related
activities in the vicinity of the auxiliary installation activities,
such as construction of an access road or use of land to store
materials or machinery.
    24. INGAA also comments on section 2.55(a)'s specification of
``electrical and communication equipment,'' a category that has
expanded enormously since 1949. INGAA states that a communications
tower qualifies as ``electrical and communication equipment'' and
``typically involves erecting a 40-foot-tall, three-leg tower with
associated microwave parabolic dish antennas, . . . may include a self-
contained communications building and backup generation,'' and requires
``a 40-foot by 60-foot area that typically would not fit within a
pipeline's existing right-of-way.'' \40\ While we recognize it is
unlikely the entire footprint of such a communication tower can fit
within the confines of an existing authorized right-of-way or facility
site, as noted above, we find that this example is as an exception to
section 2.55(a) and not characteristic of all electric and
communication equipment, some of which can be installed within an
existing right-of-way. As stated above, we cannot fulfill our NEPA
responsibilities if we allow section 2.55(a) projects to use right-of-
way and work space areas that have not been reviewed for environmental
purposes. We have explained that if a structure is needed to ensure a
company's compliance with current regulations (e.g., safety, security,
or reliability standards), but does not meet section 2.55 right-of-way/
work space requirements, then the company must obtain blanket or case-
specific certificate authorization for the project.
---------------------------------------------------------------------------

    \40\ INGAA's January 2013 Comments at p. 31.
---------------------------------------------------------------------------

    25. Moreover, the fact that these types of facilities are
specifically listed in section 2.55(a) does not mean that companies can
necessarily rely in all instances on section 2.55(a) to install them.
    26. As discussed herein, when companies plan to construct auxiliary
facilities in conjunction with projects for which they need to file
applications under Part 157, Subpart A for case-specific certificate
authority, section 2.55(a)(2)(iii) requires the companies to describe
in the case-specific certificate proceedings any auxiliary facilities
that they plan to install under section 2.55(a) and provide location
maps.\41\ Thus, in a case-specific certificate proceeding, a company
needs to include in the proposed right-of-way and temporary work spaces
for which it seeks certificate authorization any additional areas it
will need to install the planned auxiliary facilities, notwithstanding
that it intends to rely on section 2.55(a) for its authorization to
construct the auxiliary facilities.
---------------------------------------------------------------------------

    \41\ See n.9.
---------------------------------------------------------------------------

    27. In addition, if a company has already requested or received a
case-specific certificate, or is constructing under its Part 157
blanket certificate subject to those regulations' prior notice
provisions, and decides prior to placing those facilities in service
that it also wants to install auxiliary facilities, then section
2.55(a)(2)(ii) requires that the company give the Commission at least
30 days advance notice so that staff has time to consider any
additional environmental impacts associated with the auxiliary
facilities.\42\ The fact that section 2.55(a)(2)(ii) literally requires
advance notice only if the auxiliary facilities are to be added to
facilities that are not yet in service does not mean that companies can
escape environmental review when they want to add auxiliary facilities
to facilities that are already in

service. The installation of auxiliary facilities within previously-
established rights-of-way and work spaces will be within the scope of a
completed environmental review and conform to the mitigation measures
resulting from that review, whereas the installation of auxiliary
facilities outside of established rights-of-way or work spaces can
impose unstudied (and thus unmitigated) environmental impacts, which is
why section 2.55(a) and (b) activities must be restricted to rights-of-
way, facility sites, and work spaces that have been reviewed and
approved.
---------------------------------------------------------------------------

    \42\ See 18 CFR 2.55(a)(2)(ii) (2103). The advance notification
must include a description of the auxiliary facilities and their
planned location.
---------------------------------------------------------------------------

    28. The commentors stress that in Arkla/NorAm and Order No. 603,
the Commission focused its attention on section 2.55(b) and infer from
this that the right-of-way/work space limitation that was explicitly
applied to replacement facilities is implicitly inapplicable to
auxiliary installations. This inference is incorrect. It was companies'
overly expansive reading of section 2.55(b), first noted and addressed
in Arkla/NorAm, which prompted the Commission to revise section 2.55(b)
in Order No. 603 to limit companies' replacement project activities
under that section to the use of existing rights-of-way and previously
disturbed temporary work spaces. We were not aware, at that time, of
companies also relying on section 2.55(a) to go outside previously
authorized areas, in that case in order to add auxiliary facilities to
existing facilities. Thus, when we issued Order No. 603, we had no
reason to lay out our expectations regarding locational requirements as
they pertained to auxiliary installations under section 2.55(a), even
though we were clarifying those requirements with respect to
replacement projects under section 2.55(b).\43\
---------------------------------------------------------------------------

    \43\ As WBI Energy observes: ``Section 2.55(b) projects can
involve replacing dozens or even hundreds of miles of pipeline and
transmission service related facilities. Section 2.55(a) auxiliary
installations, on the other hand, are much smaller projects with
limited scope such as pig launchers, valves and cathodic protection
equipment.'' WBI Energy's Comments at p. 5. As we have observed:
``Auxiliary installations and taps generally involve minor
facilities; however, replacement of facilities may involve the
removal and replacement of extensive mainline facilities.'' Interim
Revisions to Regulations Governing Construction to Facilities
Pursuant to NGPA Section 311 and Replacement of Facilities, Order
No. 525, 55 FR 33011 at 33013, FERC Stats. & Regs. ] 30,895 at
31,812 (1990).
---------------------------------------------------------------------------

    29. However, over the last several years, we began to receive
anecdotal indications that the industry might be applying an
unwarrantedly expansive interpretation to section 2.55(a).\44\ In
response, Commission staff--in conferences, meetings, and other public
and private settings--sought to remind the industry that auxiliary
installations, like replacement projects, must not stray outside of
authorized rights-of-way and work spaces. While INGAA states that
Commission staff's consistent and insistent stance in this matter
prompted its petition requesting that the Commission disavow staff's
statements, INGAA's request for clarification also serves to highlight
how the industry is improperly interpreting section 2.55(a) to
undertake construction of facilities that do not qualify under that
section because they involve siting the facilities and/or engaging in
construction activities outside of authorized areas.
---------------------------------------------------------------------------

    \44\ Commission staff received questions from the industry
inquiring whether it was appropriate to install certain facilities
(including, but not limited to, cathodic protection equipment, pig
launchers, communications equipment) outside of the company's
authorized right-of-way using section 2.55 authority.
---------------------------------------------------------------------------

    30. When Arkla/NorAm clarified that section 2.55(b) was restricted
to replacements within the originally authorized right-of-way for the
facilities being replaced, companies complained the Commission was
upending long-held industry expectations and imposing an impractical
constraint. Comments on the NOPR in this proceeding regarding auxiliary
projects under section 2.55(a) recycle the objections presented on
rehearing in Arkla/NorAm, namely: ``the Commission failed to articulate
the reason for its change in policy''; ``the Commission's rationale
underpinning'' its ``clarification is inadequate and inconsistent with
the history and purpose of section 2.55(b)''; the ``clarification is
unduly burdensome because it deprives pipelines of needed flexibility
when repairing mainline facilities'' and ``that less burdensome
alternatives are available''; ``clarification constituted an arbitrary
and capricious action because it will create significant and
unjustifiable regulatory burdens''; and the right-of-way specification
constituted a ``rulemaking which failed to satisfy the notice and
comment procedures of section 533 of the Administrative Procedure
Act.'' \45\
---------------------------------------------------------------------------

    \45\ Arkla/NorAm, 70 FERC ] 61,030 at 61,099. Later, when the
Commission proposed to revise the text of section 2.55(b) to
incorporate the Arkla/NorAm clarification, comments emphasized the
impracticality of corralling replacement construction activities
within the originally authorized rights-of-way and workspaces.
---------------------------------------------------------------------------

    31. The discussion, rationale, and result in the 1995 Arkla/NorAm
rehearing could serve as our response to the comments on the NOPR. The
Commission's orders in Arkla/NorAm ``aimed at removing any possible
confusion within the industry concerning section 2.55'' \46\ by
responding to the ``mistaken belief '' \47\ that section 2.55 permitted
companies to replace obsolete facilities with new facilities outside
rights-of-ways that were authorized for the facilities being replaced
or to engage in any construction activities outside the existing right-
of-way and previously disturbed work spaces. The clarification provided
by the NOPR in this proceeding was aimed at the same mistaken belief on
the part of some industry members with respect to section 2.55(a). Just
as the Commission explained in Arkla/NorAm that, despite arguments to
the contrary, it had ``not changed its interpretation of what
replacement facilities qualify'' and can be installed under section
2.55(b),\48\ the clarification in the NOPR in this proceeding did not
reflect a change in the Commission's interpretation of what auxiliary
facilities can be installed under section 2.55(a). Thus, we could have
issued an instant Final Rule to codify our clarification of section
2.55(a) without providing notice and opportunity, just as the
Commission has modified section 2.55 several times in the past without
notice and comment when such actions were interpretive in nature.\49\
---------------------------------------------------------------------------

    \46\ Id., at 61,100.
    \47\ Id.
    \48\ Id. 61,099-100.
    \49\ In Arkla/NorAm, the Commission noted previous amendments to
section 2.55 that were treated as matters of interpretation, and as
such implemented absent notice or hearing. Arkla/NorAm, 70 FERC ]
61,030 at 61,100 and n.10, citing Order No. 220, 23 FPC 499 (1960)
(including delivery taps as qualifying facilities for purposes of
section 2.55); Order No. 241, 27 FPC 33 (1962) (revising the
description of qualifying replacements for purposes of section
2.55); and Order No. 148-A, 49 FPC 1046, 1047 (1973) (excluding
delivery points). Arkla/NorAm also cited, at n.11, American Mining
Congress v. Mine Safety & Health Admin., 995 F.2d 1106, 1112 (D.C.
Cir. 1993), which describes traits of interpretive rules, to show
these modifications to section 2.55 constituted interpretations
that, consistent with the APA, did not require notice or hearing.
---------------------------------------------------------------------------

    32. Until relatively recently, the Commission had always assumed
that companies understood when they relied on section 2.55(a) to add
auxiliary facilities to facilities already in service, the new
auxiliary facilities must be attached or immediately adjacent to the
existing facilities and within the right-of-way authorized for the
existing facilities and no additional right-of-way or work space could
be acquired or used in order to add the auxiliary facilities to the
existing facilities.\50\ As we did in

Arkla/NorAm for section 2.55(b), we apply ``a common-sense reading'' to
section 2.55(a) and reach the same conclusions as we did with respect
to our prior clarification of section 2.55(b), so that those auxiliary
and replacement activities that qualify for purposes of section 2.55,
and therefore require no additional certificate authority, are
``delineated by the parameters of the certificate'' \51\ authorizing
the transmission facilities that will be made more efficient or
economic by adding auxiliary facilities under section 2.55(a) or be
replaced under section 2.55(b).\52\
---------------------------------------------------------------------------

    \50\ See, e.g., Order No. 603-A, 64 FR 54522 at 54523, FERC
Stats. & Regs. ] 31,081: ``Traditionally, Section 2.55 limited the
installation of auxiliary facilities to facilities installed on an
existing transmission system.'' This holds for all section 2.55
facilities (including delivery points and taps during the period
when they were covered under section 2.55), which have always been
additions to or replacements of portions of a larger existing
system, and as such have always been integrated into or substituted
in place of jurisdictional facilities.
    \51\ 70 FERC ] 61,030 at 61,100.
    \52\ Id.
---------------------------------------------------------------------------

    33. Similarly under this common sense reading of section 2.55, we
conclude that ``to the extent that facilities are built outside the
scope of the certificate, such facilities are unauthorized.'' \53\
Thus, if auxiliary facilities are to be added to existing or proposed
interstate transmission facilities, the auxiliary facilities will
qualify for purposes of section 2.55(a) only if they will be located
within the same right-of-way as the transmission facilities \54\ and
construction activities will be limited to the temporary workspaces
authorized for construction of the transmission facilities and conform
to the conditions of the certificate authorizing construction of the
transmission facilities (e.g., all required mitigation measures, such
as erosion control or revegetation protocols, that applied to the case-
specific certificate or Part 157 blanket certificate authority under
which the transmission facilities were constructed).\55\
---------------------------------------------------------------------------

    \53\ Id.
    \54\ Notice of Proposed Rulemaking, 68 FR 4120, FERC Stats. &
Regs. ] 32,567 at 34,679. See also Emergency Reconstruction of
Interstate Natural Gas Facilities Under the Natural Gas Act, Order
No. 633, 68 FR 31596, at 31598-99 (May 28, 2003); FERC Stats. &
Regs. ] 31,144, at 30,399 (2003).
    \55\ The bounds of a section 2.55 facility's authorization
reflect the certificate conditions of the transmission system it
modifies. For example, in Order No. 603-A, 64 FR 54522, FERC Stats.
& Regs ] 31,081, at 30,921-22, the Commission was asked to permit
section 2.55(b) projects to use ``Commission-approved rights-of-way
unrelated to the construction of facilities being replaced'' on the
grounds that ``any existing right-of-way that has already been
disturbed for pipeline construction, has been reviewed'' for
environmental impacts. The Commission rejected this request,
reasoning that ``the existing right-of-way that was used to
construct the original facilities should be sufficient,'' since
replacements ``should only involve basic maintenance or repair to
relatively minor facilities where the Commission has determined that
no significant impact to the environment will occur.'' The
Commission noted that in most instances gas companies would be able
to ``use their blanket certificate authority to perform projects
involving more extensive work that would need additional workspace,
including the use of other unrelated rights-of-way,'' since the
blanket procedures ``would allow for the required additional
environmental scrutiny.''
---------------------------------------------------------------------------

    34. INGAA continues to argue that two Commission staff letters--one
from 1984 and another from 1998--support INGAA's position that current
Commission staff has been implementing a change in Commission policy by
telling companies that they cannot rely on section 2.55(a) to construct
auxiliary facilities if they need additional right-of-way or previously
undisturbed areas as work space. As discussed in the NOPR, INGAA
describes the April 1998 letter signed by Commission staff as accepting
a proposed section 2.55(a) installation of cathodic protection
equipment outside the right-of-way for the existing pipeline
facilities.\56\ We note that in December 1997, Commission staff had
issued a letter addressing what appears to be the same proposed
cathodic protection project. In this earlier letter, staff recited the
requisite section 2.55 criterion ``that, consistent with the
Commission's previous determinations regarding 18 CFR Sec.  2.55(b),
facilities constructed under section 2.55(a) must be placed within the
permanent right-of-way.'' \57\ Staff explained in the December 1997
letter that because a portion of the project would be located ``in a
new right-of-way . . . in agricultural soil which was not previously
disturbed by the pipeline construction,'' \58\ the project could not be
installed under section 2.55(a); consequently, staff directed the
company to ``file an application under Section 7 of the Natural Gas Act
for authorization.'' \59\
---------------------------------------------------------------------------

    \56\ Letter signed by the Director of the Commission's Office of
Pipeline Regulation, dated April 3, 1998; FERC eLibrary Accession
No. 19980408-0242.
    \57\ Letter signed by the Director of the Commission's Office of
Pipeline Regulations, dated December 16, 1997, p. 1 (citing Arkla/
NorAm and Columbia Gas Transmission Corporation, 68 FERC ] 61,173
(1994), FERC eLibrary Accession No. 19971223-0120).
    \58\ Id.
    \59\ Id.
---------------------------------------------------------------------------

    35. Neither the April 1998 follow-up letter cited by INGAA
accepting the cathodic protection installation under section 2.55(a)
nor anything else in the record states where the new facilities
ultimately were located. INGAA assumes that the new equipment was
installed in new right-of-way, since the December 1997 letter describes
the ground beds as being outside the right-of-way. We believe it is as
likely that after receiving staff's 1997 letter, the company determined
that it could locate the ground beds within the same right-of-way
containing the existing pipeline facilities, in which case staff's
December 1997 letter and April 1998 letter are consistent and correct;
otherwise, as we acknowledged in the NOPR, the April 1998 letter did
not reflect Commission policy correctly.\60\
---------------------------------------------------------------------------

    \60\ NOPR, FERC Stats. & Regs. ] 32,696 at P 11, n. 18 (cross-
referenced at 141 FERC ] 61,228).
---------------------------------------------------------------------------

    36. The 1984 Commission staff letter identified by INGAA stated
that proposed facilities to remove liquid condensate and free water
could qualify as an auxiliary installation for purposes of section
2.55(a) as they would increase the efficiency and enhance the
flexibility of the existing interstate pipeline system without altering
the capacity of the system.\61\ INGAA emphasizes that staff's letter
reached this determination, notwithstanding that the letter's
description of the project indicated that some of the proposed
facilities would be located outside the existing right-of-way. We find
no indication that the location of the new facilities was taken into
account in the one-page, two-paragraph staff letter which focuses
exclusively on whether the new facilities would function, as the
regulation requires, ``only for the purpose of obtaining more efficient
or more economical operation.'' The order's failure to recognize the
site of some the of proposed facilities as outside of the existing
right-of-way appears to have been be an oversight that led to a wrong
result, since locating any of the planned new auxiliary facilities
outside the existing right-of-should have disqualified the project for
purposes of section 2.55(a).
---------------------------------------------------------------------------

    \61\ Trunkline 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.
---------------------------------------------------------------------------

    37. At most, INGAA has identified two instances where Commission
policy may not have been applied correctly. Further, both examples
cited by INGAA were staff letters; neither was a Commission order.
INGAA cannot plausibly argue that these two questionable examples must
be accepted as representing a clear statement of Commission policy,
particularly when INGAA acknowledges it filed its request for
clarification expressly because ``[t]he Staff of the Federal Energy
Regulatory Commission . . . has taken the position in informal
conferences with pipelines and in industry meetings that Section
2.55(a) of the Commission's regulations only applies to auxiliary
installations in existing rights-of-way and where the

original work space is used,'' \62\ and because it strongly disagrees
with ``Commission Staff's position . . . that the same right-of-way and
work space requirements made expressly applicable to the replacement of
facilities under Section 2.55(b) of the Commission's regulations are
implied requirements of Section 2.55(a).'' \63\ In any event,
regardless of whether some companies have thought they had some
reasonable basis for expecting that construction activities to add
auxiliary facilities to existing facilities can extend outside the
previously authorized areas for the existing facilities,\64\ we cannot
fulfill our NEPA responsibilities if we allow companies to continue
acquiring additional rights-of-way and work spaces to install auxiliary
facilities under color of section 2.55(a) in areas not included in the
environmental reviews for existing and proposed transmission
facilities. We must ensure that environmental reviews are performed and
appropriate mitigation measures identified, and this NEPA obligation
extends to additional areas landowners may cede to gas companies for
jurisdictional activities or facilities.
---------------------------------------------------------------------------

    \62\ INGAA's April 2, 2012 Request for Clarification at p. 1,
Docket No. RM12-11-000 (footnote omitted).
    \63\ Id.
    \64\ INGAA declares that ``[f]or over six decades, the
interstate pipeline industry has considered auxiliary installations
beyond the right-of-way to be acceptable.'' INGAA's January 2013
Comments at p. 36. Echoing objections raised in Arkla/NorAm and
Order No. 603, INGAA adds that our clarification ``represents a sea
change in how the industry will address such installations, thereby
raising costs, limiting efficiencies, and threatening expedited
enhancement of pipeline integrity by making such installations more
difficult to effectuate.'' Id. at 39.
---------------------------------------------------------------------------

    38. INGAA and WBI Energy point to the Commission's document titled
Guidance on Repairs to Interstate Natural Gas Pipelines Pursuant to
FERC Regulations (Guidance Document), which states that ``all
replacement facilities must be constructed within the same right-of-
way, compressor station, or other aboveground facility site as the
facility being replaced,'' but does not make a similar statement about
auxiliary installations.\65\ INGAA maintains this omission ``reinforces
the decisions'' made by Commission staff in the above-discussed 1997
and 1984 letters.
---------------------------------------------------------------------------

    \65\ See http://www.ferc.gov/industries/gas/gen-info/guidance.pdf, at p. 3 (2005). (An updated Guidance Document was
issued in August 2013).
---------------------------------------------------------------------------

    39. We do not share this assessment. The Guidance Document's
summation of section 2.55, while highlighting the need for replacements
to stay within authorized boundaries, does not include any discussion
that would indicate auxiliary installations are intended to be exempt
from this same constraint. The Guidance Document on repairs reflects
the Commission's experience with section 2.55 projects, which is that
the scale and impacts of section 2.55(b) replacement projects (e.g.,
Arkla/NorAm) can far exceed those of section 2.55(a) auxiliary
installations. This is, as explained above, why we saw a need to spell
out the right-of-way/work space restriction for replacements, and why--
until recently--we had not recognized that there apparently is a need
to do the same for auxiliary facilities.
3. Environmental Issues
    40. INGAA contends the NOPR was incorrect in suggesting that all
certificated gas facilities have undergone an environmental review
prior to being constructed, because an environmental review was not a
part of the Commission's certificate proceedings until after NEPA's
promulgation in 1969. We acknowledge that NEPA altered the methodology
employed by the Commission to evaluate the environmental impacts of a
proposed project. For example, since NEPA, the Commission's orders
granting applications for construction authorization generally have
included a separate section addressing the potential environmental
impacts of an applicant's proposed reasonable alternatives.\66\
However, the Commission has long recognized that determining whether
proposed facilities are required by the public convenience and
necessity requires that environmental consequences be taken into
account (albeit in a far less methodical and thorough manner), and,
when warranted, that constraints be imposed on projects' location,
construction, and operation. For example, while prior to NEPA the
Commission did not require an applicant to search historical county and
state records to identify old burial sites no longer clearly marked as
we do today, the Commission would not have permitted an applicant to
lay a pipeline across a visible cemetery and any approval for a
pipeline to cross any isolated graves would have been conditioned on
their appropriate relocation.
---------------------------------------------------------------------------

    \66\ See Commission Regulations Implementing NEPA, 18 CFR part
380 (2013).
---------------------------------------------------------------------------

    41. As the Commission observed in 1990 in adopting the advance
notification requirement for more extensive replacement projects under
section 2.55(b),\67\ when that section was promulgated in 1949 ``there
were fewer pipeline construction projects and the majority of those
projects involved relatively short lengths of small diameter
pipeline.'' \68\ The Commission explained that the advance notification
requirement was needed because over the years ``an integrated and
sophisticated national pipeline gridwork has developed''; and
``[w]hereas replacement of facilities when Sec.  2.55 was adopted could
be assumed to involve minor projects, today, replacement of facilities
could involve hundreds of miles of large diameter pipeline.'' \69\ The
same reasoning holds for auxiliary installations, given the increase in
the number, scale, and potential impacts of section 2.55 activities.
---------------------------------------------------------------------------

    \67\ As discussed above, the 30-day advance notification
requirement applies to a replacement project under section 2.55(b)
if project costs will exceed the Part 157 blanket certificate
regulations' current cost limits for projects that qualify under the
those regulations' automatic provision.
    \68\ Interim Revisions to Regulations Governing Construction of
Facilities Pursuant to NGPA Section 311 and Replacement of
Facilities, Order No. 525-A, 53 FERC ] 61,140, at 61,467 (1990).
    \69\ Id. The Commission also explained in Order No. 525-A that
the advance notification requirement was needed for more extensive
replacement projects under section 2.55(b) because changes could
have occurred since an existing facility was put in place (e.g., the
character of a region shifting from rural to residential), stating
that:
    [J]ust because an area was disturbed when the pipeline was
originally installed does not mean that replacing the old pipe with
a new pipe will not potentially raise new environmental concerns.
Such an action must be assessed in light of current land use,
regulations, and concerns about erosion, sediment control, impact on
streams and soil, threatened and endangered species and potential
PCB contamination.
---------------------------------------------------------------------------

    42. While our NOPR in this proceeding clarified that section
2.55(a) has always been limited to installations in authorized areas
that have been or will be subject to environmental review, the NOPR
also served to provide an opportunity for parties to convince us that
this limitation is not necessary. Not only do INGAA's comments not
change our view, they serve to reinforce our belief that section 2.55
activities need to be confined to areas included within the existing
right-of-way and previously-used construction workspace by pointing out
that section 2.55 can be relied upon to replace or add auxiliary
facilities to transmission systems that were authorized prior to NEPA
when the Commission's environmental review would have been less
rigorous and might not have identified project impacts that would come
to light with today's greater scrutiny.
4. Compliance With Executive Orders
    43. The commentors claim the NOPR fails to follow Executive Orders
directing agencies to weigh the burden

and benefit of regulations.\70\ They point out that section 2.55 was
intended to avoid the burden of companies' having to obtain case-
specific certificate authorization for certain routine activities, and
argue the purportedly new right-of-way/work space constraint will
preclude some installations of auxiliary facilities under section
2.55(a), and so compel companies to instead submit more individual
certificate applications.
---------------------------------------------------------------------------

    \70\ Commenters cite Executive Order No. 13,563, Improving
Regulation and Regulatory Review, 76 FR 3821 (January 21, 2011)
(directing executive agencies and requesting that independent
regulatory agencies such as the Commission ensure, inter alia, that
their regulations have benefits justifying their costs and impose
the least burden possible); Executive Order No. 13,579, Regulation
and Independent Regulatory Agencies, 76 FR 41587 (July 14, 2011)
(requesting that executive agencies, including independent
regulatory agencies such as the Commission, retrospectively analyze
their regulations and that regulations found to be outmoded,
ineffective, insufficient, or excessively burdensome be modified,
streamlined, expanded, or repealed); and Executive Order No. 13,211,
Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use, 66 FR 28355 (May 22, 2001) (requiring
agencies other than independent regulatory agencies such as the
Commission to prepare Statements of Energy Effects describing the
effects of certain significant energy actions on energy supply,
distribution, or use).
---------------------------------------------------------------------------

    44. We concur with the commentors' characterization of section
2.55: it was put in place to, and continues to, reduce the burden that
the industry (and Commission) would otherwise bear if every minor
modification to a natural gas facility required case-specific
certificate authorization. Further, while the Commission, as an
independent agency, is not subject to the requirements of the cited
Presidential documents, the Commission has directed staff to perform an
internal assessment of the effectiveness of our regulations and is
continually seeking to streamline the 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.\71\ However, the NOPR, by more fully
describing the types of activities that currently come within the
bounds of 2.55(a), does not trigger any need for assessment of burdens
and benefits, because the NOPR's clarification regarding the scope of
section 2.55(a) does not alter any aspect of the status quo. Where the
NOPR's proposed new regulations would impose an additional burden
(e.g., the landowner notification requirements discussed below), then
in accord with applicable Executive Orders, we explain the benefit we
anticipate these new regulations will provide and quantify the burden
we anticipate compliance will impose.
---------------------------------------------------------------------------

    \71\ See, e.g., Storage Reporting Requirements of Interstate and
Intrastate Natural Gas Companies, Order No. 757, 77 FR 4220 (January
27, 2012), FERC Stats. & Regs. ] 31,327, at PP 12-13 (2012).
---------------------------------------------------------------------------

5. Section 2.55 Authorization and Part 157, Subpart F, Blanket
Authorization
    45. Under our Part 157, Subpart F blanket certificate regulations,
as under our section 2.55 regulations, a gas company can construct and
operate a limited class of facilities without the need to obtain
separate certificate authorizations for each individual facility.
INGAA, MidAmerican Energy, and National Fuel point to section
157.202(b)(3) of our blanket certificate regulations, which in
designating the types of facilities that may qualify for blanket
authorization, states: ```Facility' does not include the items
described in section 2.55.'' \72\ MidAmerican Energy is apprehensive
this could be interpreted to mean that if an auxiliary facility does
not qualify under section 2.55(a) because it does not meet the right-
of-way/work space constraints, then it also could not qualify as an
eligible facility under the blanket regulations because of the section
157.202(b)(3) limitation, thereby leaving a company with the ``only
option'' of filing an application for case-specific certificate
authorization.\73\
---------------------------------------------------------------------------

    \72\ 18 CFR 157.202(b)(3)(2013).
    \73\ MidAmerican Energy's Comments at p. 11.
---------------------------------------------------------------------------

    46. The Commission responded to a similar concern in 1999 in the
Order No. 603 proceeding that codified the Arkla/NorAm clarification
regarding replacement projects under section 2.55(b) by amending that
section to add the phrase ``will be located in the same right-of-way or
on the same site as the facilities being replaced, and will be
constructed using the temporary work space used to construct the
original facility.'' \74\ The Commission explained that section
157.202(b)(3) only prevents companies from relying on their Part 157
blanket certificates to construct facilities if the facilities qualify
under section 2.55. As clarified by Order No. 603's revision to section
2.55(b), replacement projects are disqualified under that section only
if they will use additional right-of-way or work space than was used in
constructing the facilities being replaced or will result in an
incidental increase in capacity. Thus, section 157.202(b)(3) prevents
companies from relying on their Part 157 certificates for replacement
projects that will not use additional right-of-way or work space and
therefore qualify under section 2.55.\75\
---------------------------------------------------------------------------

    \74\ Order No. 603, 64 FR 26572, FERC Stats. & Regs. ] 31,073.
    \75\ Order No. 603, 64 FR 26572 at 26580, FERC Stats. & Regs. ]
31,073.
---------------------------------------------------------------------------

    47. Both section 2.55 and the blanket certificate program are
intended to provide a streamlined authorization process to avoid the
comparatively greater time, cost, and effort that accompany a case-
specific section 7 certificate application.\76\ To this end, we expect
companies seeking to install, maintain, replace, repair, or upgrade
facilities to look first to section 2.55, and only if an activity is
beyond the scope of that section then to turn to blanket certificate
authority, and only if an activity would exceed blanket authority, then
to file for case-specific section 7 authorization.
---------------------------------------------------------------------------

    \76\ While section 2.55 covers a more limited range of
facilities than the blanket program, it offers lighter-handed
regulatory oversight than the blanket program.
---------------------------------------------------------------------------

    48. INGAA and National Fuel note we modified section
157.202(b)(2)(i) to specify that replacements which do not meet section
2.55(b) requirements may be eligible for blanket authorization \77\ and
request we do the same for auxiliary installations. We will do so
(although we believe this does not change the way the regulations
currently function) to ensure clarity and consistency in the
application of the regulations.\78\ Accordingly, to explicitly (and
redundantly) specify that auxiliary installations which do not meet
section 2.55(a) requirements may be eligible for blanket authorization,
we will add the following sentence at the end of section
157.202(b)(2)(i): ``Eligible facility includes auxiliary installations
and observation wells which do not qualify under Sec.  2.55(a) of this
chapter because

they will not satisfy the location or work space requirements of Sec.
2.55(a).'' \79\

---------------------------------------------------------------------------

    \77\ Order No. 603 revised 157.202(b)(2)(i) to specify that
eligible facilities include ``replacements that do not qualify under
section 2.55(b) of this chapter because they will have an impact on
mainline capacity.'' Order No. 603, 64 FR 26572 at 26579-80, FERC
Stats. & Regs. ] 31,073.
    \78\ We note that in instances where a pipeline company needs to
rely on its Part 157 certificate to construct auxiliary or
replacement facilities because they do not satisfy the location or
work space limitations of section 2.55, the Part 157 blanket
certificate regulations impose no limitations on the placement of
the facilities. While the Commission has indicated previously that
it is contemplated that replacement facilities constructed under
blanket authority would usually be located adjacent to, if not
within, an existing right-of-way, sections 157.202(b)(2)(i) and
157.210 permit the construction of non-main line facilities and main
line facilities, respectively, without restriction on their
location. For example, a company can rely on its Part 157 blanket
certificate to replace the capacity of a segment of obsolete
pipeline with new pipeline that may need to be located at
considerable distance from the old pipeline in order to avoid a
housing development constructed since the old pipeline was installed
or to install auxiliary facilities such as anodes offset from the
existing right-of-way to provide cathodic protection.
    \79\ In 1999, the Commission proposed adding the following
sentence at the end of section 157.202(b)(2)(i): ``Eligible facility
includes observation wells.'' Landowner Notification, Expanded
Categorical Exclusions, and Other Environmental Filing Requirements,
Notice of Proposed Rulemaking, 64 FR 27717 (May 21, 1999), FERC
Stats. & Regs. ] 32,540 (1999). Ultimately, the Commission elected
not to include the sentence based on its conclusion at the time that
observation wells could be constructed under section 2.55(a).
Landowner Notification, Expanded Categorical Exclusions, and Other
Environmental Filing Requirements, 64 FR 57374 (October 25, 1999),
FERC Stats. & Regs. ] 31,082, at 30,959 (1999). Commentors in this
proceeding have pointed out that many observation wells, rather than
being drilled to monitor operations at an existing gas storage
facility, are drilled in order to determine whether a planned new
storage facility is feasible, in which case a company may not have
any existing right-of-way and would not be able to meet section
2.55(a) requirements. In view of this, we will include observation
wells in revised section 157.202(b)(2)(i) to ensure that if such
wells are not able to meet section 2.55(a) siting restrictions, they
will then be eligible to be considered for authorization under the
blanket certificate program.
---------------------------------------------------------------------------

6. ``Grandfathering'' Existing Section 2.55(a) Installations
    49. For the reasons discussed above, we believe modifying section
2.55(a) to codify right-of-way and work space constraints does no more
than restate existing Commission policy and practice. Nevertheless, we
acknowledge that although these constraints have been clear to the
Commission, they may have been subject to misinterpretation by the
industry.
    50. The commentors declare companies have relied on section 2.55(a)
to install facilities that are not in compliance with right-of-way and
work space requirements. As explained above, any such installations are
NGA-jurisdictional facilities constructed and operated without NGA
authority. However, given that section 2.55(a) did not previously
include an explicit description of the inherent right-of-way/work space
constraint, and in view of commentors' claims of companies' good faith
reliance on section 2.55(a) to install facilities which violate this
constraint, we will not require the companies to obtain a blanket or
case-specific certificate authorization for thefacilities purportedly
installed pursuant to section 2.55(a) prior to the effective date of
this rule, provided such facilities comply with all other applicable
federal, state, and local rules and regulations. That said, if we
become aware of facilities installed relying on section 2.55(a) that do
not meet the constraints of that section which are the cause of any
significant adverse environmental impact, we may then require that such
facilities obtain blanket or case-specific certificate authorization.
7. Burden of Section 2.55's Right-of-Way Requirement
    51. INGAA argues that we erred by not including the ``additional
time and burden'' of blanket or case-specific section 7 procedures that
will now be necessary for facilities that cannot meet section 2.55(a)
siting requirements.\80\ This objection presumes the section 2.55(a)
right-of-way/work space constraint constitutes a new burden imposed by
this rule. As previously discussed, this not the case, because section
2.55 activities have always been restricted to an authorized right-of-
way or facility site and prescribed work spaces. Activities that exceed
these limits are not covered under section 2.55, and thus no additional
time and burden is being imposed--they remain subject to the same time
and burden that they were before. Consequently, we do not include
activities that did not and will not qualify under section 2.55(a) in
our estimate of the additional time and burden imposed by this rule.
---------------------------------------------------------------------------

    \80\ INGAA's March 2013 Comments at p. 5.
---------------------------------------------------------------------------

    52. INGAA asserts the ``NOPR would convert all auxiliary
installations outside of existing rights of way and historical work
spaces into Natural Gas Act jurisdictional facility construction that
would require certificate authorization and formal agency
consultation.'' \81\ We concur, but as noted, we will not compel
companies to seek blanket or case-specific authorization for facilities
installed in erroneous reliance on section 2.55(a) unless we find
reason to suspect such facilities are a cause of significant adverse
environmental impact. Where facilities already in place present no such
issues, we find no reason to subject them to further review.
---------------------------------------------------------------------------

    \81\ INGAA's March 2013 Comments at p. 22.
---------------------------------------------------------------------------

    53. In any event, the NOPR and this Final Rule do no more than
clarify the source of our authority over certain types of facilities.
Therefore, we reject INGAA's claim that we include an estimate of the
burden on companies of filing certificate applications and consulting
with environmental agencies for facilities allegedly `converted' to
blanket or case-specific status.

B. Landowner Notification

    54. This Final Rule adopts regulations to provide for advance
landowner notification for auxiliary and replacement projects under
section 2.55 and for maintenance activities under section 380.15. As
previously discussed, we consider it appropriate to give landowners
prior notice to the extent practicable before intruding onto their
property as a courtesy and to avoid potential conflict between
landowners and gas companies. Commentors do not dispute the virtues of
informing landowners of company activities, but insist the notice
procedures described in the NOPR are impractical.
    55. In response to commentors' concerns, we will revise the
proposed notification obligations to (1) specify the types of
maintenance activities that merit individual notice; (2) limit notice
to landowners whose property is crossed or used for section 2.55 and
section 380.15 activities; and (3) reduce the prior notice period from
10 days to five days. These modifications should significantly diminish
the burden of complying with the new requirements for prior notice to
landowners.
    56. Instead of mandating notice to landowners for all section
380.15 maintenance activities, as proposed in the NOPR, we will only
require prior notice of those more substantial activities that will
result in ground disturbance. In addition, we are reducing the scope of
notification proposed in the NOPR, which would have required that
notice be provided not only to directly affected landowners, but also
to adjacent landowners and to landowners with a residence within 50
feet of a proposed work area.\82\ Commentors assert this is overly
broad and request that we remove abutting landowners and landowners
with a residence within 50 feet of the proposed work area from the
definition of ``affected landowners.'' Although the NOPR would have
required the same scope of notice that companies are required to
provide for projects under the Part 157 blanket certificate
regulations, the commentors have convinced us that more limited
landowner notification requirements are appropriate for companies'
activities under section 2.55 and 380.15, since such projects are
likely to be smaller, take a shorter period of time to

accomplish, and be less disruptive than blanket certificate projects.
---------------------------------------------------------------------------

    \82\ The NOPR defined ``affected landowners'' for purposes of
companies' activities under sections 2.55 and 380.15 as ``owners of
property interests, as noted in the most recent tax notice, whose
property (1) is directly affected (i.e., crossed or used) by the
proposed activity, including all rights-of-way, facility sites,
access roads, pipe and contractor yards, and temporary work space;
or (2) abuts either side of an existing right-of-way or facility
site, or abuts the edge or a proposed right-of-way or facility site
which runs along a property line in the area in which the facilities
would be constructed, or contains a residence within 50 feet of the
proposed construction work area.'' 78 FR at 683, NOPR, FERC Stats. &
Regs. ] 32,696 at P 30 (corss-referenced at 141 FERC ] 61,228).
---------------------------------------------------------------------------

    57. Finally, while the NOPR stipulated a 10-day prior notice, we
accept commentors' claim that some activities, particularly
unanticipated maintenance, are not scheduled far enough in advance to
allow for a 10-day prior notice.\83\ In view of this, we will only
require that landowners receive notice five days in advance of
initiating certain activity under section 2.55 or 380.15, which we
anticipate will still allow time for landowners and a company to
discuss any concerns landowners may have regarding companies' planned
activities.
---------------------------------------------------------------------------

    \83\ Additionally, commentors state that the 10-day prior notice
period prevents companies from adjusting maintenance schedules due
to weather, equipment availability, permitting processes, etc.
---------------------------------------------------------------------------

1. Jurisdictional Basis and Need for Landowner Notification
    58. INGAA asserts that the Commission has no jurisdictional basis
to impose landowner notification requirements for companies'
installations of auxiliary facilities and replacement projects under
section 2.55 or their maintenance activities under section 380.15; \84\
therefore, INGAA argues that the NOPR's proposed landowner notification
requirements for these activities should not be adopted. However, if
the Final Rule does adopt landowner notification requirements, INGAA
asks the Commission to explain what circumstances changed since the
promulgation of Order No. 609 \85\ to merit mandatory prior
notification to landowners before a company commences construction
under section 2.55 or maintenance under section 380.15.
---------------------------------------------------------------------------

    \84\ INGAA's March 2013 Comments at p. 7. INGAA cites to
Californians for Renewable Energy, Inc., 133 FERC ] 61,194, at P 26
(2010), to support its statement that ``[t]hus far, the Commission
properly has refrained from exercising jurisdiction over easement or
right-of-way agreements, and has appropriately deferred the formal
resolution of disputes in such matters to the courts.'' We agree
that formal resolution of disputes over the terms of easements and
right-of-way agreements belong in the courts and we are not claiming
jurisdiction over these matters by imposing landowner notification
requirements for Commission-authorized activities.
    \85\ Order No. 609, 64 FR 57374 (October 25, 1999), FERC Stats.
& Regs. ] 31,082 (1999).
---------------------------------------------------------------------------

    59. INGAA points out \86\ that in Order No. 609 the Commission
determined that there was no need for landowner notification because
section 2.55(b) replacements occur within an ``existing right-of-way
and subject to an existing easement agreement, which dictates the
pipeline's right to obtain access to maintain the facilities.'' \87\
However, Order No. 609 also stated that ``prudence would dictate that
the pipeline should give the landowner as much advance warning as
possible to avoid misunderstandings and ill-will.'' \88\
---------------------------------------------------------------------------

    \86\ INGAA's March 2013 Comments at pp. 6-7. INGAA also notes
that ``[a] pipeline must own the property or have an easement to
perform maintenance, and the same is true for a pipeline to install,
modify, replace, improve, alter, operate, maintain, access, inspect,
patrol, protect, abandon, etc. auxiliary installations and
replacement facilities.'' Id. at p. 12.
    \87\ Order No. 609, 64 FR 57374 at 57382, FERC Stats. & Regs ]
31,082.
    \88\ Id.
---------------------------------------------------------------------------

    60. Our proposal in the NOPR in this proceeding to adopt landowner
notification requirements for companies' activities under section 2.55
and section 380.15 was prompted by landowners' expressions of concern
to Commission staff during phone inquiries, scoping meetings, and in
other forums due to companies' personnel appearing unannounced on or
near their property. The types of concerns expressed by landowners
arise from construction and maintenance crews arriving unexpectedly to
engage in activities that disrupt, or could disrupt, landowners use of
their property, or damage their property as a result of replacing
facilities; re-grading or replacing access roads; lowering pipelines;
performing anomaly digs; or preventing and controlling erosion. We view
providing prior notice, which some companies avow is routine practice,
as the least burdensome and most practical way to ensure courtesy and
preclude conflicts with landowners. Whenever a company conducts an
activity subject to our jurisdiction and under authority provided by
our regulations,\89\ we have a right and responsibility to impose
appropriate and reasonable conditions on that activity.\90\ Our
responsibility includes ensuring that, to the extent practicable,
landowners are informed in advance when they may be inconvenienced or
the use of their property may be disrupted by companies' jurisdictional
activities to construct auxiliary and replacement facilities under
section 2.55 authority or conduct maintenance activities subject to
section 380.15. Landowners deserve an opportunity to express concerns,
and we want the opportunity to act on those concerns if necessary.\91\
---------------------------------------------------------------------------

    \89\ In addition, section 157.14(a)(9)(iv) of the Commission's
regulations requires an applicant for NGA section 7 certificate
authority to certify that it will ``maintain the facilities for
which a certificate is requested in accordance with Federal safety
standards.'' 18 CFR 157.14(a)(9)(iv) (2013). Likewise, NGA section
7(h) gives the certificate holder eminent domain authority to
acquire rights necessary to ``construct, operate, and maintain a
pipe line.'' 15 U.S.C. 717f(h) (2012). See Brian Hamilton, 141 FERC
] 61,229, at PP 24-25 (2012) (Hamilton). Therefore, the Commission
has jurisdiction over maintenance activities, and has the authority
to require landowner notice as a condition of a company's
jurisdictional maintenance activities.
    \90\ Contrary to National Fuel's assertion (see National Fuel's
Comments at p. 2), the Commission is not restricted to requiring
landowner notification only for companies' activities under their
Part 157 blanket and case-specific certificates. As discussed supra
PP 13-16 auxiliary and replacement facilities are NGA-jurisdictional
facilities that can be constructed only with the requisite section 7
certificate authority, which the Commission provided when it adopted
section 2.55 as a precursor to the Part 157 blanket certificate
construction program. Further, the authorization to perform
maintenance on gas facilities comes from the certificate authority
under which the facilities were or will be constructed--whether it
be self-implementing section 2.55 certificate authority, Part 157
blanket certificate authority, or case-specific certificate
authority. As the Commission explained in Hamilton, 141 FERC ]
61,229, at P 24, ``[i]t does not necessarily follow, however, that
[a natural gas company] has no responsibilities merely because the
activity neither falls within the replacement of facilities under
section 2.55(b) nor under the blanket construction provisions. When
the Commission authorizes a natural gas company to construct and
operate pipeline facilities, the authority must necessarily include
authority to maintain the pipeline.''
    \91\ National Fuel argues that the NOPR relied on NEPA as a
basis for requiring landowner notification for maintenance
activities. National Fuel's Comments at p. 3. It did not. The
rationale for requiring notification is our belief that landowners
should be informed in advance of any activity that will take place
on their property as a consequence of our granting a company an NGA
section 7(c) certificate. The jurisdictional basis for this
requirement is as a condition to the certificate, which we impose to
ensure company actions are consistent with the public interest. The
NOPR, however, did rely on NEPA as a basis for restricting
companies' activities to areas subject to an environmental review,
and as a result thereof, authorized for a particular use.
---------------------------------------------------------------------------

    61. Commentors assert that easement agreements are the proper
method for landowners to establish any requirements for prior notice of
company activities on private property,\92\ and note that many of these
agreements specify that no notice is required for maintenance
activities. While we recognize that some landowners agree to forego
prior notice, we nevertheless believe it is prudent for gas companies
to provide such notice. Landowners may misunderstand the terms of an
easement agreement or a subsequent owner may not be aware that the land
is subject to an easement. Therefore, regardless of whether an easement
agreement gives a company a right enforceable under state property law
to enter on property without notice, we believe it is appropriate and
reasonable for our regulations to require that to the extent
practicable companies provide landowners with prior notice

before commencing certain activities under section 2.55 or section
380.15.
---------------------------------------------------------------------------

    \92\ See INGAA's March 2013 Comments at pp. 6 and 12, Southern
Star's Comments at p. 6, Golden Triangle's Comments at p. 4, WBI
Energy's Comments at p. 7, and National Fuel's Comments at pp. 2-3.
---------------------------------------------------------------------------

2. Exceptions to Landowner Notification Requirements
    62. Commentors state that if the landowner notification proposals
are adopted, the Final Rule should waive landowner notification to
provide ``for immediate access to emergency gas leaks, acts of God,
investigations related to gas pressure or flow or SCADA signals, or to
respond to One Call notifications on an emergency or routine basis.''
\93\
---------------------------------------------------------------------------

    \93\ INGAA's March 2013 Comments at p. 9 and National Fuel's
Comments at p. 5.
---------------------------------------------------------------------------

    63. Our regulations provide for a company to take immediate action
in an emergency, as we pointed out in response to a similar concern
regarding the imposition of a 30-day prior notice:

    [This] rule does not override other Commission regulations which
permit interstate pipelines to take prompt corrective actions to
address conditions that constitute a safety hazard. Subpart I of
Part 284 of the Commission's regulations exempts emergency
situations from the provisions of section 7 of the Natural Gas Act
and permits a pipeline to take immediate action to alleviate an
emergency situation subject to a subsequent 48-hour reporting
requirement. Section 284.262(a)(1)(iii) of Subpart I defines
emergency as ``Any situation in which . . . immediate action is
required or is reasonably anticipated to be required for the
protection of life or health or for maintenance of physical
property.'' \94\
---------------------------------------------------------------------------

    \94\ Interim Revisions to Regulations Governing Construction of
Facilities Pursuant to NGPA Section 311 and Replacement of
Facilities, 52 FERC ] 61,252, at 61,877 (1990). See also section
157.203(d)(3)(i), which states that ``no landowner notice is
required'' for any blanket program ``replacement done for safety,
DOT compliance, environmental, or unplanned maintenance reasons that
are not foreseen and that require immediate attention by the
certificate holder.''

Notwithstanding the foregoing, to assure there will be no hesitation by
gas companies if immediate action is called for, we will specify in
sections 2.55 and 380.15 that: ``For an activity required to respond to
an emergency, the five-day prior notice period does not apply.'' Note
that events that do not necessitate immediate access to system
facilities would not trigger our section 284 emergency provisions, and
therefore would still be subject to a five-day prior notice.
3. Part 157 Landowner Notification Exemption for Replacement Projects
    64. Companies are required to provide landowner notice prior to
initiating projects under the Part 157 blanket certificate
regulations.\95\ However, section 157.203(d)(3)(i) of the regulations
provides a notice exemption for replacement projects that would have
been done under section 2.55(b), but for the fact that the replacement
projects are not of the same capacity.\96\ To provide consistency with
new the section 2.55 landowner notification requirements established in
this Final Rule, we will amend section 157.203(d)(3)(i) to provide that
replacement projects that would have been done under section 2.55(b),
but for the fact that the project alters the designed delivery capacity
of the original facility, remains exempt from the landowner
notification requirements of Part 157, as long as the project does not
involve ground disturbance. Because the revised section 2.55(b) notice
requirements require landowner notice for a ground disturbing
replacement project that substitutes in a new same-size facility, it
would be inconsistent to retain the landowner notice exemption in
section 157.203(d)(3)(i) for a ground disturbing replacement project
that alters the capacity of the original facility.
---------------------------------------------------------------------------

    \95\ 18 CFR 157.203(d)(1) (2013).
    \96\ 18 CFR 157.203(d)(3)(i) (2013). To qualify under section
2.55(b) a replacement project must have a substantially equivalent
designed delivery capacity as the original facility. 18 CFR
2.55(b)(1)(ii) (2013).
---------------------------------------------------------------------------

4. Requirement That Notification Inform Landowners of the Availability
of the Commission's Dispute Resolution Division
    65. WBI Energy states that any landowner notification requirements
should not include a requirement that companies provide landowners with
contact information or include a description of the Commission's
Dispute Resolution Division (DRD) Helpline. WBI Energy asserts disputes
concerning easements and right-of-ways for existing facilities are
properly adjudicated in state courts, and not by the Commission. WBI
Energy further argues that including information regarding the DRD in
the notice likely would cause landowners to incorrectly believe that
the Commission is the appropriate venue for resolving property
disputes.\97\
---------------------------------------------------------------------------

    \97\ WBI Energy's Comments at pp. 8-9.
---------------------------------------------------------------------------

    66. We recognize that the DRD Helpline is not the appropriate venue
for determining the respective rights of companies and landowners under
state property law or for renegotiating the terms of easement
agreements. However, there are instances in which it is appropriate
and/or potentially helpful for landowners to contact Commission staff
to seek informal resolution of a dispute. For example, while a court
would be the appropriate forum to adjudicate a dispute regarding
whether an easement agreement gives a natural gas company the right to
allow another company to lay a fiber optic cable in the pipeline right-
of-way, or to determine the amount of monetary damages caused to a
landowner's property by a company's negligence during construction
activities, it is appropriate for a landowner to contact the Commission
if the landowner believes that a company's planned activities might not
comply with the provisions of section 2.55 (e.g., may not be confined
to the existing right-of-way) or section 380.15 and for the
Commission's staff to contact the company regarding the matter. It also
is appropriate for a landowner to seek the Commission's assistance in
obtaining a company's voluntary agreement to reasonable accommodation
requested by the landowner (e.g., to reschedule backhoe digging planned
by the company for the same day as a back-yard wedding reception). In
this regard, we emphasize that section 380.15(b), Landowner
consideration, states that ``[t]he desires of landowners should be
taken into account in the planning, locating, clearing, and maintenance
of rights-of-way and the construction of facilities on their
property.''
    67. While only a court can determine the respective rights of a
company and landowner under the terms of an easement agreement, the
terms of an easement in no way diminish the Commission's NGA authority
over companies' activities to construct or maintain jurisdictional
facilities. Thus, we are adopting our proposal to require that
companies include the DRD Helpline number to facilitate landowners
being able to contact and seek assistance from Commission staff. We
encourage companies to describe the DRD Helpline as a way for
landowners to inform the Commission of concerns regarding a company's
planned activities. We anticipate companies, in providing the DRD
Helpline number, will be able to explain this without implying, as WBI
Energy worries, that a company is acting unlawfully.\98\
---------------------------------------------------------------------------

    \98\ Id. In Order No. 609, in response to similar apprehensions
regarding a requirement for companies to include information in
landowner notices on how to contact the Commission's Enforcement
Hotline, we stated we did not believe ``that including a reference
to the Enforcement Hotline implies the company is doing something
unlawful,'' and added that we expected companies ``will be able to
present it as merely being a means to contact the Commission, which
is in fact what it is.'' 64 FR 57374, 57384.
---------------------------------------------------------------------------

5. Landowner Notification for Maintenance Activities
    68. Commentors state that the Commission's proposed prior notice

requirements for maintenance activities may be unnecessary in view of
existing U.S. Department of Transportation (DOT) regulations. DOT's
Pipeline and Hazardous Materials Safety Administration (PHMSA) requires
pipelines to develop a continuing public education program,\99\ which
follows guidance provided by the American Petroleum Institute's (API).
---------------------------------------------------------------------------

    \99\ See 49 CFR 192.616 (2013).
---------------------------------------------------------------------------

    Recommended Practice 1162.\100\ API's Recommended Practice 1162
requires that ``[w]hen planning pipeline maintenance-related
construction activities,'' gas companies ``should communicate to the
audience affected by the specific activity in a timely manner
appropriate to the nature and extent of activity,'' \101\ and must also
notify landowners in writing biennially of all ``planned major
maintenance/construction activity.'' \102\
---------------------------------------------------------------------------

    \100\ See http://mycommittees.api.org/standards/pipeline/1162%20Links/1162nonprintable.pdf.
    \101\ See http://mycommittees.api.org/standards/pipeline/1162%20Links/1162nonprintable.pdf, sections 4.10 and C.10.
    \102\ Id. See Table 2-1, Summary of Public Awareness
Communications for Hazardous Liquids and Natural Gas Transmission
Pipeline Operators.
---------------------------------------------------------------------------

    69. We accept that the PHMSA requirements will be sufficient to
alert landowners to many maintenance activities. We will therefore
modify the prior notice requirement for section 380.15 maintenance
activities proposed in the NOPR in this proceeding by limiting notice
to maintenance activities that will cause ground disturbance.\103\
Given the potential disruption and impact level of maintenance
activities that will cause ground disturbance, we find such activities
merit separate written notice to affected landowners.
---------------------------------------------------------------------------

    \103\ However, if in the future, we receive objections
indicating that landowners are not adequately informed of particular
maintenance activities, we may consider applying a separate prior
notice requirement specific to such activities.
---------------------------------------------------------------------------

    70. While some of these activities will be included in the PHMSA-
mandated biennial report distributed to landowners, we have no
assurance that all such activities will be. Further, while the PHMSA
report of planned major maintenance can provide a broad overview of a
company's future operations, because the company only issues this
report every other year, it does not give landowners a sufficiently
precise description of when a particular activity will commence and
conclude. We believe that if landowners have notice five days before a
ground disturbing project begins, this will enable companies and
landowners time to confer, coordinate, and avoid simultaneously
undertaking incompatible actions. Finally, we note that PHMSA is
focused on the safe operation of existing facilities, whereas the
Commission purview of the public interest covers a broader set of
concerns. Thus, while PHMSA may find no cause to take into account a
company's activity that inconveniences a landowner but does not
compromise the safe operation of gas facilities, the Commission may
find such an activity to be within the scope of its authority to ensure
the activity is consistent with the public convenience and necessity.
    71. MidAmerican Energy and Golden Triangle request that the
Commission provide a definition of maintenance under section 380.15 of