181 FERC ¶ 61,121
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
18 CFR Parts 154, 260, & 284
[Docket No. RM21-18-000; Order No. 884]
Revised Filing and Reporting Requirements for Interstate Natural Gas Company
Rate Schedules and Tariffs
(Issued November 17, 2022)
AGENCY: Federal Energy Regulatory Commission.
ACTION: Final rule.
SUMMARY: The Federal Energy Regulatory Commission issues this final rule to require natural gas pipelines to submit all supporting statements, schedules and workpapers in native format (e.g., Microsoft Excel) with all links and formulas included when filing a Natural Gas Act section 4 rate case.
DATES: This rule is effective [INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]
FOR FURTHER INFORMATION CONTACT:
Tehseen Rana (Technical Information)
Office of Energy Market Regulation
Federal Energy Regulatory Commission
888 First Street, NE
Washington, DC 20426
(202) 502-8639
Caitlin Tweed (Legal Information)
Office of the General Counsel
Federal Energy Regulatory Commission
888 First Street, NE
Washington, DC 20426
(202) 502-8073
SUPPLEMENTARY INFORMATION:
181 FERC ¶ 61,121
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Before Commissioners: Richard Glick, Chairman;
James P. Danly, Allison Clements,
Mark C. Christie, and Willie L. Phillips.
Revised Filing and Reporting Requirements for Interstate Natural Gas Company Rate Schedules and Tariffs |
Docket No. |
RM21-18-000 |
ORDER NO. 884
FINAL RULE
(Issued November 17, 2022)
In this final rule, the Federal Energy Regulatory Commission (Commission) revises the filing and reporting requirements for natural gas pipelines filing a Natural Gas Act (NGA) section 4 rate case.1 As discussed below, we adopt the Commission’s proposal pursuant to the Notice of Proposed Rulemaking (NOPR) issued on May 19, 2022,2 to establish a rule to require natural gas pipelines to submit all supporting statements, schedules and workpapers in native format (e.g., Microsoft Excel) with all links and formulas included when filing an NGA section 4 rate case.
When a natural gas pipeline files under NGA section 4 to change its rates, the Commission requires the pipeline to provide detailed support for all the components of its cost of service.1
Commission regulations require that natural gas pipelines filing general NGA section 4 rate cases provide certain statements (Statements A through P) and associated schedules.2 In 1995, the Commission issued its Filing and Reporting Requirements for Interstate Natural Gas Company Rate Schedules and Tariffs (Order No. 582), stating that Statements I, J and a portion of H (containing state tax formulations) must be received in spreadsheet format with formulas included, as the data provided in these statements and schedules are essential to understanding a natural gas pipeline’s position with regard to cost allocation and rate design.3 The Commission explained that although these spreadsheets could be obtained through discovery, that process is burdensome and inhibits better-informed comments.4 Subsequently, the FERC Implementation Guide for Electronic Filing of Parts 35, 154, 284, 300 and 341 Tariff Filings (FERC Implementation Guide) stated that the “submission of spreadsheets in native file format is preferred for Statements A through M, including related schedules. Statements O and P may use any electronic format that renders text, graphics, spreadsheets or data bases that the Commission accepts (the list of FERC Acceptable File Formats is available on http://www.ferc.gov).”5 Furthermore, for Statements I, J and a portion of H, the FERC Implementation Guide stated that if spreadsheets in native format are not available, the natural gas pipeline may submit those statements using any of the aforementioned acceptable electronic formats that the Commission accepts.6
In the NOPR, the Commission proposed to require natural gas pipelines to submit all statements, schedules and workpapers in native format with formulas and links intact7 when filing a general NGA section 4 rate case. As the Commission explained in the NOPR, requiring all statements, schedules and workpapers to be filed in native format will reconcile any ambiguity in the current requirements.8 Moreover, the Commission explained that this requirement would address the information gap that currently exists because, when a pipeline submits a section 4 rate case filing the Commission often cannot verify whether there were underlying links used to develop a spreadsheet or whether a pipeline severed those links before filing its rate case.9 Furthermore, the Commission stated that requiring spreadsheets with links and formulas intact will enable rate case participants to manipulate the cost-of-service components (including billing determinants) to evaluate different rate outcomes without the need to create their own rate models, which will expedite settlement negotiations and allow all rate case participants to evaluate the filing on an equal footing.10
The Commission also stated that submitting all statements, schedules and workpapers in native format will provide for a timely and comprehensive analysis of a rate case filing.11 All interested rate case participants will be able to evaluate the statements and schedules once they are filed, rather than needing to wait to obtain the information through discovery or to create their own rate models.
Finally, the Commission stated that the current policy on this issue is outdated because information technology has significantly improved since the issuance of Order No. 582 in 1995, and pipelines now routinely develop rate cases using Microsoft Excel and submit them electronically.12
The NOPR was published in the Federal Register on May 25, 202213 and established a comment date of June 24, 2022. The Commission received eight comments and two reply comments from a variety of stakeholders.14 XES, National Grid and Exelon, generally support the Commission’s proposal, while Energy Transfer, BHE GT&S, INGAA, Joint Commenters and Public Citizen, also generally support the proposal and request further clarifications.
We adopt the proposal set forth in the NOPR to require natural gas pipelines to submit all supporting statements, schedules and workpapers in native format with all links and formulas included when filing an NGA section 4 rate case. We acknowledge the requests from certain commenters that the Commission undertake various additional initiatives, but we find that those requested initiatives go beyond the scope of this rulemaking, as explained below.
Energy Transfer argues that “the proposed rule takes the additional, unjust and unreasonable step of requiring a pipeline to create links and formulas in successive documents even if the pipeline did not need or use such links and formulas when it prepared and filed its rate case.”1 Energy Transfer states that “requiring a pipeline to specially create and file links or formulas it did not need or use to prepare and file its rate case is arbitrary and capricious and does not constitute reasoned decision-making because it would unreasonably shift litigation costs and burdens to interstate natural gas pipelines.”2 Energy Transfer further states that “such costs should be borne by the limited number of participants involved in rate case litigation that seek to analyze rates in specific detail to litigate their individual rate issues.”3
Joint Commenters disagree with Energy Transfer, arguing that the burden on pipelines would be limited because Order No. 582 already requires pipelines to provide data for certain statements with formulas included, and subsequent orders reiterate these requirements.4 Second, Joint Commenters argue that pipelines bear the burden of supporting a rate filing. Moreover, Joint Commenters point out that to the extent that pipelines incur additional costs related to complying with any new rule that the Commission issues, pipelines can seek to recover the costs in a rate proceeding, and therefore, the costs are not being shifted impermissibly to the pipelines.5
BHE GT&S requests that the Commission clarify that a natural gas pipeline is not required to create links across statements and schedules where they did not already exist.6 BHE GT&S argues that it is not reasonable to require rate case participants to create links where none exist in the first instance.
We disagree with Energy Transfer’s argument that the NOPR proposal which we adopt in this final rule is unjust and unreasonable. First, we find that this final rule does not unreasonably shift litigation costs from intervenors to the pipeline. The pipeline has the burden under NGA section 4 to support its proposed rates in its case in chief.7 This final rule merely requires pipelines to provide intact links and formulas in the workpapers and schedules that must be included in the case in chief.8 This final rule does not require pipelines to fund the litigation costs of other participants. Moreover, while pipelines may incur increased costs to comply with this final rule, we find that any additional burden would be limited, and pipelines are allowed to recover those costs through their rates.
Finally, we deny BHE GT&S’s request for clarification that a natural gas pipeline is not required to create links across statements and schedules where they did not already exist. Rather, this final rule does require natural gas pipelines to create links and formulas to show the pipeline’s progressive calculations in the supporting statements, schedules and workpapers.
Energy Transfer, citing the NOPR, notes that the Commission “seek[s] to address this information gap and require natural gas pipelines to file statements and schedules linking progressive calculations regardless of how the statements and schedules were created.”9 Energy Transfer contends that the “Commission’s proposal is based on a false premise because no so-called ‘information gap’ exists, and all the information and data are included in the pipeline’s rate case filing.”10 Energy Transfer further argues that a pipeline may create an Excel file without certain links or formulas because such links or formulas are not necessary or helpful to prepare and file the rate case.11 Energy Transfer contends that a search of the Commission’s orders did not reveal any published orders where the Commission rejected a pipeline’s NGA section 4 rate filing due to the pipeline severing underlying links prior to filing.12
Based on the record developed in this proceeding, we disagree with Energy Transfer’s contention that an information gap does not exist. A rate model without formulas and links intact is much less useful to rate case participants who are trying to evaluate a natural gas pipeline’s rate design, cost allocations, or rate calculations. When a pipeline files a rate model without formulas and links, rate case participants must recreate the natural gas pipeline’s model, which is inefficient and duplicative. Requiring spreadsheets and workpapers to be filed with links and formulas included will allow rate case participants to manipulate the cost-of-service components and billing determinants without creating their own rate models. This will expedite settlement negotiations and will allow all rate case participants to evaluate the filing on an equal footing with the pipeline.
Moreover, under this final rule, rate case participants can begin evaluating a natural gas pipeline’s rate design, cost allocations, and rate calculations immediately in the comment period after a pipeline files a section 4 rate case and thus file better-informed comments. Furthermore, requiring pipelines to file all statements and schedules with formulas and links intact will enable all rate case participants to evaluate the filing and any settlement offers from the same baseline, as opposed to all rate case participants creating their own rate models. Thus, the final rule will streamline the rate case process, including settlement discussions, and avoid rate case participants exchanging multiple rounds of discovery and testimony just to understand the rate model’s underlying calculations, which are fundamental to the rate case.
Energy Transfer argues that there is no evidence that natural gas pipelines are severing existing links.13 We find this point irrelevant. The development of a rate model, with formulas and links intact, is imperative to the proper functioning of the model. If there are severed links within the rate model then a change in input in one statement will not update to its corresponding change on another statement. Without this flow through of information, rate case participants can not properly ascertain the intended rate design, cost allocations, and rate calculations.
Whether or not pipelines are severing links or the links never existed, there is an information gap between the pipeline and rate case participants involved in a rate case if the rate model fails to include links and formulas essential to understanding the rate calculations. This final rule seeks to close that gap.
Energy Transfer states the Commission’s proposal fails to include proposed regulations describing what must be provided in a rate case filing. Therefore, pipelines would not have any notice in the regulations as to what is being required by the rulemaking unless it separately was aware of this proceeding.14 Additionally, Energy Transfer claims a “lack of proper notice and lack of specific language in the regulations does not comply with the requirements of the Administrative Procedure Act.”15
We are not persuaded by Energy Transfer’s argument that the NOPR failed to provide adequate notice to pipelines of what is being required by this rulemaking. Although the NOPR did not include proposed regulations, the NOPR fully described the proposed filing requirements. Furthermore, the Commission’s regulations do not discuss filing formats, and we see no need in this proceeding to add that level of granularity to meet the requirements of the Administrative Procedures Act.16 While the NGA section 4 requirements in the regulations remain the same, technology and procedures evolve. We continue to believe it is appropriate for natural gas pipelines to rely on the FERC Implementation Guide for detailed guidance on filing requirements that goes beyond the regulations.17 Therefore, we find Energy Transfer’s notice arguments unavailing.
Joint Commenters request that the final rule address the presumption that native format files, with formulas intact, of publicly filed material should be publicly available. Joint Commenters note that ratepayers have recently experienced a situation where a pipeline claimed that links in its Excel spreadsheets for statements and related schedules should receive confidential treatment, even though the statements and schedules themselves (without links) had been filed publicly.18 Joint Commenters argue that such treatment is unnecessary, and the pipeline’s claim of confidentiality created an additional burden for shippers that hindered the administrative process. Therefore, Joint Commenters ask that the final rule clarify that native format files, with links and formulas intact, of publicly filed material are presumed to be publicly available.
INGAA opposes Joint Commenters’ request that the final rule implement a blanket denial of any request under § 388.112 for privileged treatment of any portion of the rate model spreadsheets that the Commission is requiring natural gas pipelines to file as part of the proposed rule.19 According to INGAA, the statements, schedules and workpapers with formulas and links intact are commercial information that certain pipelines treat as private and are provided by those pipelines to the Commission with the expectation that the information will not be generally available on the public docket for use outside of the rate case.20 INGAA states that the Commission acknowledged in Order No. 703 that a pipeline is entitled to submit spreadsheets as privileged and only provide the flat files or a PDF as the public version of the protected information.21 INGAA further states that privileged treatment of the rate model statements, schedules and workpapers with formula and links intact is also consistent with the treatment of information as confidential under the Chief Administrative Law Judge’s Model Protective Order, and therefore there are already procedures in place to address Joint Commenters’ concerns about access to privileged information.22
INGAA argues that there are many reasons to seek protection of the rate model spreadsheets based on concerns that disclosure may result in competitive disadvantage or other business injury. Specifically, INGAA states that it is concerned that third parties with no legitimate interest in the ratemaking process may misuse, modify, or misrepresent the cost allocation or rate design results contained within the spreadsheets in ways that would be difficult or impossible to clarify. INGAA argues that such misuse could be the basis for unsupported claims that the pipeline is earning more than a reasonable return or unfairly allocating costs, which could affect the pipeline’s value to potential investors, lenders, shippers, or other market participants. INGAA states that any administrative convenience is outweighed by the risk of competitive harm or other business injury resulting from publicly filing proprietary information, and that the Commission and the participants in a rate case already have the unobstructed right to this information.23
We decline to adopt Joint Commenters’ requested clarification. A filer may request confidential treatment, and the Commission will evaluate such requests on a case-by-case basis. In such cases, the data sets and spreadsheets should be submitted in both privileged, unredacted form and in public, redacted form, pursuant to 18 CFR 388.112.24 As Joint Commenters note, however, the information in a rate model is generally already public information and pipelines seeking confidential treatment will have the burden of proof that confidential treatment is warranted.
INGAA requests that the Commission clarify that “formulas and links intact” means formulas and links within and between statements, schedules and workpapers filed in the same rate case, not formulas contained in or links to spreadsheets not required as part of the initial filing.25 INGAA states that the Commission recognized this distinction in Order No. 582 between formulas in workpapers and statements submitted in the rate case and formulas located in or links to separate spreadsheets not submitted as part of the pipeline’s filing, and asserts that the Commission rejected a suggestion that pipelines must produce the “underlying spreadsheets, models, and databases relied upon to prepare the filing in an electronic format” upon request.26
In addition, INGAA states that the Commission should continue to permit pipelines to file Statements O and P in any manner consistent with the current FERC Implementation Guide, specifically in “any electronic format that renders text, graphics, spreadsheets or data bases that the Commission accepts.”27 INGAA argues that these statements do not contain links within the statement or to other statements, and the submission of Statements O and P in native format will not enable participants in the rate proceeding to more easily manipulate information or to analyze the statements in a more timely or comprehensive manner.28 Furthermore, INGAA requests that the Commission clarify that the proposed rule does not expand the information that pipelines must submit when initiating an NGA section 4 rate case, but modifies the format of the statements, schedules, and workpapers currently required by the Commission’s regulations.29
We affirm that the final rule’s requirement that rate models be filed with “formulas and links intact” applies to statements, schedules, and workpapers filed in the same rate case and not to formulas contained in or links to spreadsheets not required as part of the initial filing. However, we clarify that to the extent a natural gas pipeline creates a workpaper to create a statement or schedule required by § 154.312 of the Commission’s regulations (e.g., an allocation workpaper that informs the I Schedules), the pipeline must file that workpaper with formulas and links intact, as that workpaper is essential to understanding the rate model’s inputs and calculations. This includes links within the workpaper, and between the workpaper and the statement or schedule that relies on that workpaper.
We grant the request to clarify that Statements O and P do not contain links within the statement or to other statements or schedules, and therefore may continue to be filed in any manner consistent with the FERC Implementation Guide for these statements. We also affirm that this final rule does not expand the information that pipelines must submit when initiating an NGA section 4 general rate case but clarifies the format requirements with which such information must comply.
BHE GT&S requests that the Commission clarify that the requirement for natural gas pipelines to provide supporting statements, schedules and workpapers in native format should “also apply equally to all parties, including Commission staff and intervenors, when submitting rate case materials.”30 Specifically, BHE GT&S states that the Commission should clarify that the changes proposed in the NOPR should apply equally to parties submitting a complaint requesting the initiation of a proceeding under NGA section 5, as well as to information submitted by Commission staff or other stakeholders in rebuttal to an NGA section 4 rate case.
Commission Determination
The NOPR did not propose to require rate case participants to provide supporting statements, schedules and workpapers in native format during NGA section 5 proceedings as suggested by BHE GT&S. We decline to apply the final rule to NGA section 5 complaint cases, as they are outside the scope of this proceeding. The final rule applies solely to natural gas pipelines filing general NGA section 4 rate cases. Moreover, we decline to require all rate case participants to a general NGA section 4 rate case to comply with the final rule. In an NGA section 4 rate case, the pipeline has the burden of proof to justify its change in rates. If a rate case is fully litigated at hearing, natural gas pipelines may seek rate models with links and formulas included from other participants through discovery.
Comments
Public Citizen argues that additional disclosure improvements are required to ensure the public has access to accurate information about the shippers that secure shipping capacity on natural gas pipelines. Public Citizen states that currently the Commission’s regulations at 18 CFR § 284.13(b) delegate such reporting to the pipelines, allowing natural gas pipelines to post shipper information on their website, rather than having the Commission publish such information in a centralized format on the Commission’s website. Public Citizen further argues that natural gas pipelines’ compliance with 18 CFR § 284.13(b) is haphazard, with natural gas pipelines prioritizing their own website content and making it difficult to find the Commission-required disclosures. Public Citizen contends that the Commission’s rule requiring pipelines to archive such information for only 90 days impedes the public interest, because most pipelines charge a fee to access material older than 90 days. In addition, Public Citizen argues that it is difficult to locate shipper information on many pipeline websites. Therefore, Public Citizen requests that the Commission expand the final rule to include natural gas pipeline reporting requirements. Public Citizen suggest that the Commission post shipper data and other information on the Commission’s website and provide the public with free archival access.
Commission Determination
We decline to expand the final rule as Public Citizen requests. The NOPR did not propose reforms related to these issues raised by Public Citizen. The final rule is intended to improve the efficiency of general NGA section 4 rate cases, not to revise separate and unrelated reporting requirements already set forth in the Commission’s regulations. Therefore, Public Citizen’s concerns are outside the scope of this proceeding and we decline to address them at this time.
The information collection requirements contained in this final rule are subject to review by the Office of Management and Budget (OMB) under section 3507(d) of the Paperwork Reduction Act of 1995.1 OMB’s regulations require approval of certain information collection requirements imposed by agency rules.2 Upon approval of a collection of information, OMB will assign an OMB control number and expiration date. Respondents subject to the filing requirements of this rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number.
This final rule modifies the currently approved information
collection associated with FERC-545, Gas Pipeline Rates: Rate
Change (Non-Formal) (OMB Control
No. 1902-0154) (FERC-545) by
updating the requirements for submitting a rate case under section 4
of the NGA.
Interested persons may obtain information on the reporting requirements by contacting Ellen Brown, Office of the Executive Director, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426 via email ([email protected]) or telephone (202) 502-8663).
In the NOPR, the Commission solicited comments on the Commission’s need for this information, whether the information will have practical utility, the accuracy of the burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected or retained, and any suggested methods for minimizing respondents’ burden, including the use of automated information techniques.
Title: Gas Pipeline Rates: Rate Change (Non-Formal)
Action: Modification of collection of information in accordance with RM21-18-000.
OMB Control No.: 1902-0154
Respondents for this Rulemaking: Gas pipelines filing an NGA section 4 rate case.
Frequency of Information Collection: As needed for section 4 rate cases.
Necessity of Information: This final rule requires all statements, schedules and workpapers submitted during a section 4 rate case to be submitted in native format with all links and formulas intact. The modification to this collection is intended to reduce the overall burden for all rate case participants involved in a section 4 rate case.
Internal Review: The Commission has reviewed the changes and has determined that such changes are necessary. These requirements conform to the Commission’s need for efficient information collection, communication, and management within the energy industry. The Commission has specific, objective support for the burden estimates associated with the information collection requirements.
The Commission estimates that the final rule will affect the burden3 and cost4 as follows:
Modifications to FERC 545 from Final Rule in Docket No. RM21-18-000 |
||||||||||
A. Area of Modification |
B. Number of Respondents
|
C. Annual Estimated Number of Responses per Respondent
|
D. Annual Estimated Number of Responses (Column B X Column C)
|
E. Average Burden Hours & Cost per Response
|
F. Total Estimated Burden Hours & Total Estimated Cost (Column D x Column E) |
|||||
Section 4 Rate Case |
||||||||||
FERC 545: Annual Section 4 Rate Cases |
8 |
1 |
8 |
100 hours; $10,300 |
800 hours; $82,400 |
|||||
For the purposes of estimating burden in this final rule, in the table above, we conservatively estimate the annual total of general section 4 rate cases to be eight. This number is higher than the Commission’s average number of section 4 rate cases, but we created our estimate to allow for potential additional rate case submissions.
FERC-545 is required to implement rates pursuant to sections 4, 5, and 16 of NGA, (15 USC 717c& 717o, PL 75 688, 52 Stat. 822 and 830). NGA sections 4, 5, and 16 authorize the Commission to inquire into rate structures and methodologies and to set rates at a just and reasonable level. Specifically, a natural gas pipeline must obtain Commission authorization for all rates and charges made, demanded, or received in connection with the transportation or sale of natural gas in interstate commerce. The modification as described in this final rule in Docket No. RM21-18-000 only impacts filings under section 4 of the NGA. The collections associated with sections 5 and 16 remain unchanged.
The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.1 The actions proposed to be taken here fall within categorical exclusions in the Commission’s regulations for rules regarding information gathering, analysis, and dissemination, and for rules regarding sales, exchange, and transportation of natural gas that require no construction of facilities.2 Therefore, an environmental review is unnecessary and has not been prepared in this rulemaking.
The Regulatory Flexibility Act of 1980 (RFA)1 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. The Commission intends to pose the least possible burden on all entities both large and small.
The final rule only applies to natural gas pipelines who file a section 4 rate case. There are a total of 145 entities that may file a rate change and may be impacted by the final rule. The Small Business Administration (SBA) defines a small entity in the category of, “Pipeline Transportation of Natural Gas”2 by entities with fewer than $30 million of annual receipts. Out of the total number of entities, only five are small entities as defined by the SBA (~3% of the total population). We estimate the annual additional costs of filing a section 4 rate case to be $10,300. We further estimate an average of eight responses per year and conservatively estimate that one may be a small entity. Therefore, the proposed rule does not pose a significant change to small entities.
In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission’s Home Page (http://www.ferc.gov).
From the Commission’s Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.
User assistance is available for eLibrary and the FERC’s website during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202)502-8659. E-mail the Public Reference Room at [email protected].
This final rule is effective [insert date 30 days from publication in Federal Register for non-major rules and 60 days from the later of the date Congress receives the agency notice or the date the rule is published in the Federal Register]. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996.
By the Commission. Commissioner Danly is concurring with a separate statement attached.
(S E A L)
Kimberly D. Bose,
Secretary.
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Revised Filing and Reporting Requirements for Interstate Natural Gas Company Rate Schedules and Tariffs
|
Docket No. |
RM21-18-000 |
(Issued November 17, 2022)
DANLY, Commissioner, concurring:
I concur with today’s final rule as I believe it complies with the Natural Gas Act and the Administrative Procedure Act.1 I write separately to express my apprehension that the Commission does not fully appreciate the burden that will be incurred, or how long it will take, for jurisdictional entities to come into compliance.2 It is my understanding that some pipeline companies currently create each statement and its supporting schedules using different software that do not, by themselves, link. Requiring links may require a pipeline company to upgrade existing, or implement entirely new, software systems—tasks which oftentimes are neither simple nor inexpensive. And while “pipelines are allowed to recover those costs through their rates,”3 I would have preferred to have solicited additional comment on the cost and timing of the software upgrades that this rule might require in order to better inform our decision on whether and when to impose these changes.
For these reasons, I respectfully concur.
________________________
James P. Danly
Commissioner
1 15 U.S.C. 717c.
2 Revised Filing & Reporting Requirements for Interstate Nat. Gas Co. Rate Schedules & Tariffs, 87 FR 31783 (May 25, 2022), (179 FERC ¶ 61,114) (2022) (NOPR).
1 18 CFR 154.312 & 154.313 (2021).
2 18 CFR 154.312.
3 Filing & Reporting Requirements for Interstate Nat. Gas Co. Rate Schedules & Tariffs, Order No. 582, 60 FR 52,960, 52,994 (Oct. 11, 1995), FERC Stats. & Regs. ¶ 31,025 (1995) (cross-referenced at 72 FERC ¶ 61,300), order on clarification, 76 FERC ¶ 61,077 (1996).
4 In Order No. 703, the Commission confirmed the requirement that pipelines submit spreadsheets in native format for Statements I, J and a portion of H, including intact formulas. Filing Via the Internet, Order No. 703, 72 FR 65659 (Nov. 23, 2007), 121 FERC ¶ 61,171, at P 26 (2007).
5 FERC Implementation Guide for Electronic Filing of Parts 35, 154, 284,
300 & 341 Tariff Filings (2016).
6 Id.
7 “Formulas and links intact” include formulas and links within individual spreadsheets and between spreadsheets. For example, the Commission explained that the proposal would require that formulas and links within Schedule I-2 be intact within Schedule I-2, and intact for any progressive calculations that flow data from Schedule I-2.
8 NOPR, 179 FERC ¶ 61,114 at P 6.
9 Id.
10 Id.
11 Id. P 7.
12 Id. P 8.
13 Revised Filing & Reporting Requirements for Interstate Nat. Gas Co. Rate Schedules & Tariffs, 87 FR 31783 (May 25, 2022), 179 FERC ¶ 61,114 (2022).
14 Comments were submitted by Xcel Energy Services Inc. on behalf of the Xcel Energy Operating Companies (XES); the Brooklyn Union Gas Company d/b/a National Grid NY, KeySpan Gas East Corporation d/b/a National Grid, Boston Gas Company d/b/a National Grid, and Niagara Mohawk Power Corporation d/b/a National Grid (collectively, National Grid); Exelon Corporation, on behalf of its local gas distribution company subsidiaries Baltimore Gas and Electric Company, Delmarva Power and Light Company, and PECO Energy Company (Exelon); Energy Transfer LP (Energy Transfer); BHE GT&S, LLC and its gas transmission and storage entities, which include Eastern Gas Transmission and Storage, Inc., Cove Point LNG, LP, and Carolina Gas Transmission, LLC (BHE GT&S); the Interstate Natural Gas Association of America (INGAA); the American Gas Association, American Public Gas Association, American Forest & Paper Association, Industrial Energy Consumers of America, Process Gas Consumers Group, and Natural Gas Supply Association (collectively, Joint Commenters); and Public Citizen, Inc. (Public Citizen).
1 Energy Transfer Comments at 2.
2 Id.
3 Id.
4 Joint Commenters Reply Comments at 5 (citing Order No. 582, FERC Stats. & Regs. ¶ 31,025, at 31,435).
5 Id. at 7-8.
6 BHE GT&S Comments at 4.
7 15 U.S.C. 717c(e).
8 18 CFR 154.312 to 154.314 (2021).
9 NOPR, 179 FERC ¶ 61,114 at P 6 (emphasis added).
10 Energy Transfer Comments at 4.
11 Id.
12 Id. at n.13.
13 Id. at 5.
14 Id. at 10.
15 Id.
16 See, e.g., Pub. Util. Transmission Rate Changes to Address Accumulated Deferred Income Taxes, Order No. 864, 84 FR 65,281 (Nov. 27, 2019), 169 FERC ¶ 61,139 (2019), order on reh’g and clarification, 171 FERC ¶ 61,033 (2020). While not revising any regulatory text, the Commission is using the process provided for rulemaking proceedings, as defined in 5 U.S.C. 551(4)-(5).
17 See also Tex. E. Transmission, LP, 165 FERC ¶ 61,287, at P 31 (2018); E. Tenn. Nat. Gas, LLC, 172 FERC ¶ 61,114, at PP 33-34 (2020).
18 Joint Commenters Comments at 11-12.
19 INGAA Reply Comments at 2.
20 Id. at 4 (citing Seife v. Food & Drug Admin., 492 F. Supp. 3d 269, 276-77 (S.D.N.Y. 2020) (limited disclosures subject to nondisclosure agreements and “not made to the general public, do not preclude Exemption 4 protection”)).
21 Id. at 4-5 (citing Order No. 703, 121 FERC ¶ 61,171 at P 26).
22 Id. at 5-6.
23 Id. at 6.
24 See Order No. 582, FERC Stats. & Regs. ¶ 31,025, at 31,435, Order No. 703, 121 FERC ¶ 61,171 at P 26.
25 INGAA Comments at 2 (citing Order No. 582, FERC Stats. & Regs. ¶ 31,025, at 31,435).
26 Id. at 3 (citing Order No. 582, FERC Stats. & Regs. ¶ 31,025 at 31,435). INGAA also states that the Commission stated that this information “may be discoverable at hearing if found necessary in a particular case.” Id.
27 Id. at 4 (citing FERC Implementation Guide for Elec. Filing of Parts 35, 154, 284, 300 & 341 Tariff Filings, Order No. 703, 72 FR 65659 (Nov. 23, 2007),
121 FERC ¶ 61,171 at P 24 (“Submission of text documents will be permissible in native or in searchable format.”)).
28 Id.
29 Id. at 5.
30 BHE GT&S Comments at 2.
1 44 U.S.C. 3507(d).
2 5 CFR 1320.11 (2021).
3 “Burden” is the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a federal agency. For further explanation of what is included in the information collection burden, refer to 5 CFR 1320.3.
4 The estimated hourly cost (salary plus benefits) provided in this section is based on the salary figures for May 2021 posted by the Bureau of Labor Statistics for the Utilities sector (available at https://www.bls.gov/oes/current/naics3_221000.htm) and scaled to reflect benefits using the relative importance of employer costs for employee compensation from March 2022 (available at https://www.bls.gov/news.release/ecec.nr0.htm). The hourly estimates for salary plus benefits are: Computer and Information Systems Manager (Occupation Code: 11-3021), $111.63; Computer and Information Analysts (Occupation Code: 15-1210), $76.35; Electrical Engineer (Occupation Code: 17-2071), $77.02; Legal (Occupation Code: 23-0000), $145.35. The average hourly cost (salary plus benefits) weighting all of the above skill sets evenly, is $102.59. We round it to $103/hour.
1 Reguls. Implementing the Nat’l Env’t Pol’y Act, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783 (1987) (cross-referenced at 41 FERC ¶ 61,284).
2 See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5) & 380.4(a)(27) (2021).
1 5 U.S.C. 601-612.
2 Small Business Administration NAICS Category 486210, “Pipeline Transportation of Natural Gas” under 13 CFR Chapter 1 Part 121.
1 Revised Filing & Reporting Requirements for Interstate Nat. Gas Co. Rate Schedules & Tariffs, 181 FERC ¶ 61,121 (2022).
2 Id. P 12 (“Moreover, while pipelines may incur increased costs to comply with this final rule, we find that any additional burden would be limited. . . .”).
3 Id.
| File Type | application/vnd.openxmlformats-officedocument.wordprocessingml.document |
| File Modified | 0000-00-00 |
| File Created | 2023-09-06 |