[Federal Register Volume 85, Number 40 (Friday, February 28, 2020)]
[Proposed Rules]
[Pages 11890-11893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04069]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 342, 343, and 357
[Docket No. RM17-1-000; Docket No. RM15-19-000]
Petition for a Rulemaking of the Liquids Shippers Group, Airlines
for America, and the National Propane Gas Association; Revisions to
Indexing Policies and Page 700 of FERC Form No. 6
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Withdrawal of advance notice of proposed rulemaking; denial of
petition for rulemaking.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
withdrawing its advance notice of proposed rulemaking (ANOPR)
considering potential modifications to the Commission's policies for
evaluating oil pipeline indexed rate changes and certain additions to
the annual reporting requirements in FERC Form No. 6, page 700.
Additionally, the Commission denies the petition for rulemaking filed
by certain shippers seeking changes to page 700 reporting requirements.
DATES: The ANOPR published on November 2, 2016, at 81 FR 76315 (2016)
is withdrawn as of February 28, 2020.
FOR FURTHER INFORMATION CONTACT:
Adrianne Cook, (Technical Information), Office of Energy Market
Regulation, 888 First Street NE, Washington, DC 20426, (202) 502-8849.
Monil Patel, (Technical Information), Office of Energy Market
Regulation, 888 First Street NE, Washington, DC 20426, (202) 502-8296
Andrew Knudsen, (Legal Information), Office of the General Counsel, 888
First Street NE, Washington, DC 20426, (202) 502-6527.
SUPPLEMENTARY INFORMATION:
1. On October 20, 2016, the Commission issued an advance notice of
proposed rulemaking (ANOPR) in Docket No. RM17-1 seeking comment
regarding potential modifications to the Commission's policies for
evaluating oil pipeline indexed rate changes and certain additions to
the FERC Form No. 6, page 700 (page 700) annual reporting
requirements.\1\ Prior to the ANOPR, on April 20, 2015, certain
shippers filed a petition for rulemaking in Docket No. RM15-19
requesting that the Commission require oil pipelines to provide
additional information on page 700.
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\1\ Revisions to Indexing Policies and Page 700 of FERC Form No.
6, 81 FR 76315 (Nov. 2, 2016), 157 FERC ] 61,047 (2016) (ANOPR).
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2. For the reasons set forth below, we exercise our discretion to
withdraw the ANOPR and to terminate the proceeding in Docket No. RM17-
1. We also deny the shippers' petition for rulemaking.
[[Page 11891]]
I. Background
3. In 2015, the Liquids Shippers Group,\2\ Airlines for America,\3\
and the National Propane Gas Association \4\ (collectively, the Joint
Shippers) filed a petition for rulemaking in Docket No. RM15-19 seeking
to expand certain annual filing requirements related to the summary
cost of service contained on page 700. Specifically, the Joint Shippers
requested that the Commission require oil pipelines to disaggregate the
total company data currently reported on page 700 and to file
supplemental page 700s containing summary cost of service for (a) crude
and product systems and (b) each ``rate design'' segment. The Joint
Shippers' proposal also requested that all interested parties be given
access to the workpapers used to prepare page 700. Staff held a
technical conference on July 30, 2015, to discuss the Joint Shippers'
petition with the petitioners, pipelines, and interested parties. The
Commission received subsequent comments in September 2015 and October
2015.\5\
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\2\ Liquids Shippers Group consists of the following crude oil
or natural gas liquids producers: Anadarko Energy Services Company,
Apache Corporation, Cenovus Energy Marketing Services Ltd.,
ConocoPhillips Company, Devon Gas Services, L.P., Encana Marketing
(USA) Inc., Marathon Oil Company, Murphy Exploration and Production
Company-USA, Noble Energy Inc., Pioneer Natural Resources USA, Inc.,
and Statoil Marketing & Trading (US) Inc.
\3\ Airlines for America is a trade association representing
cargo and passenger airlines, including Alaska Airlines, Inc.,
American Airlines Group (American Airlines and US Airways), Atlas
Air, Inc., Delta Air Lines, Inc., Federal Express Corporation,
Hawaiian Airlines, JetBlue Airways Corp., Southwest Airlines Co.,
United Continental Holdings, Inc., and United Parcel Service Co.
\4\ The National Propane Gas Association is a national trade
association of the propane industry with a membership of
approximately 3,000 companies, including 38 affiliated state and
regional associations representing members in all 50 states.
\5\ Comments and reply comments were filed by the Association of
Oil Pipe Lines (AOPL); Joint Shippers (National Propane Gas
Association, Airlines for America, a consortium of major air
carriers, and Valero Energy and Supply); the Liquids Shippers
(Anadarko Energy Services Company, Apache Corporation, Cenovus
Energy Marketing Services Ltd., ConocoPhillips Company, Devon Gas
Services LP, Encana Marketing (USA) Inc., Marathon Oil Company,
Murphy Exploration and Production Company USA, Noble Energy Inc.,
Pioneer Natural Resources USA Inc., and Statoil Marketing and
Trading (US) Inc); Explorer Pipeline Company; Magellan Midstream
Partners LP; Marathon Pipe Line LLC; Shell Pipeline Company LP;
Plains Pipeline LP; SFPP L.P. (SFPP); NuStar Logistics LP;
Enterprise Products Partners LP; and Buckeye Pipe Line Company, LP
(Buckeye).
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4. The October 2016 ANOPR resulted from the Commission's ongoing
assessment of its oil pipeline policies, including evaluation of page
700 reporting requirements following the Joint Shippers' petition. In
the ANOPR, the Commission sought comment regarding potential
modifications to its policies for reviewing protests and complaints
against oil pipeline index rate filings. In addition, the Commission
sought comment regarding potential modifications to the data reporting
requirements reflected on page 700. Initial comments were filed in
January 2017 \6\ and reply comments were filed in March 2017.\7\
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\6\ Initial comments were filed by R. Gordon Gooch, Delek
Logistics Partners, LP, Kinder Morgan, Inc., Buckeye Partners, L.P.,
Suncor Energy Marketing Inc., NuStar Logistics, L.P. and NuStar
Pipeline Operating Partnership L.P., Shell Pipeline Company, LP,
Enterprise Products Partners L.P., Magellan Midstream Partners L.P.,
The Texas Pipeline Association, Indicated Shippers, Marathon Pipe
Line LLC, Plains All American, L.P., Colonial Pipeline Company,
Enbridge Inc., Sinclair Oil Corporation, the Liquids Shippers Group,
AOPL, APV Shippers (Airlines for America, National Propane Gas
Association, and Valero Marketing and Supply Company), and the
Canadian Association of Petroleum Producers (CAPP).
\7\ Reply comments were filed by Magellan Midstream Partners
L.P., APV Shippers, Indicated Shippers, the Liquid Shippers Group,
the Canadian Association of Petroleum Producers, AOPL Enbridge, Inc,
Colonial Pipeline Company, and R. Gordon Gooch.
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II. Discussion
5. Upon review of the record developed in this proceeding, we are
not persuaded to proceed with the changes considered in either the
ANOPR or the Joint Shippers' petition.
6. Regarding the Joint Shippers' petition, the Commission
previously identified concerns with the petition's proposal for (a)
requiring supplemental page 700s for different rate design segments \8\
and (b) requiring pipelines to provide page 700 workpapers to
shippers.\9\ We continue to believe that this information--which would
effectively require every oil pipeline regulated by the Commission to
file a detailed cost of service every year--is unnecessary and
inconsistent with the purposes of the page 700 preliminary screen \10\
in the Commission's simplified and streamlined indexing regime.\11\
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\8\ ANOPR, 157 FERC ] 61,047 at PP 31-33.
\9\ Id. P 48. In the ANOPR, the Commission also explained: ``The
current data on page 700 allows a shipper to compare (a) a
pipeline's revenues to its total cost of service and (b) changes to
a pipeline's total cost of service.'' Id. This is the data needed to
challenge an index rate as well as for a cost-of-service challenge.
The Commission also noted that requiring workpapers raised potential
confidentiality concerns, including ``(a) shipper information
protected by section 15(13) of the ICA, which prohibits disclosure
of an individual shipper's movements and (b) the pipeline's
competitive business information.'' Id. P 49. Although we decline to
require workpapers, we note that page 700 includes additional data
on lines 1-8 that provide significant detail regarding the
pipeline's cost of service.
\10\ The Commission has stated that the total company data on
page 700 merely serves as a preliminary screening tool to evaluate
pipeline rates and that ``[p]age 700 information alone is not
intended to show what a just and reasonable rate should be.''
Revisions to Page 700 of FERC Form No. 6, Order No. 783, 144 FERC ]
61,049, at P 4 (2013) (internal citations omitted). The level of the
just and reasonable rate can be determined upon a subsequent
investigation, most likely at hearing before an administrative law
judge.
\11\ Indexing simplifies and streamlines ratemaking procedures
by allowing a particular pipeline's rates to deviate from its
particular costs and by using a broad industry-wide inflationary
measure as opposed to costly individual cost-of-service proceedings.
Revisions to Oil Pipeline Regulations Pursuant to Energy Policy Act
of 1992, Order No. 561, FERC Stats. & Regs. ] 30,985, at 30,948
(1993), order on reh'g and clarification, Order No. 561-A, FERC
Stats. & Regs. ] 31,000 (1994), aff'd sub nom. Ass'n of Oil Pipe
Lines v. FERC, 83 F.3d 1424 (D.C. Cir. 1996) (AOPL I). As the United
States Court of Appeals for the District of Columbia Circuit has
explained, requiring an individualized cost-of-service evaluation
for each pipeline would be inconsistent with the simplification
mandated by the Energy Policy Act of 1992. Ass'n of Oil Pipe Lines
v. FERC, 281 F.3d 239, 244 (D.C. Cir. 2002) (AOPL II).
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Whereas this proposal would provide some minimal benefit to
shippers, under our simplified indexing regime, it would impose
considerable industry-wide cost upon pipelines.\12\ After carefully
weighing these factors, and considering other avenues available to
shippers, as discussed below, we reaffirm our earlier rejection of this
proposal.
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\12\ Moreover, the burden associated with segmentation is not a
one-time burden. In addition to the annual record-keeping
requirements, as pipelines add capacity, spin-off assets, and
otherwise evolve, the pipelines would need to re-evaluate their rate
design segments.
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7. We also deny the Joint Shippers' request for supplemental page
700s that separately report crude oil and product pipeline system cost-
of-service data. After further consideration of this proposal as part
of the ANOPR proceeding, we conclude that imposing such an annual cost-
of-service reporting obligation is unnecessary for the purposes of a
preliminary screen in the Commission's simplified indexing regime.
Segmentation of page 700 by crude and product would apply to a limited
number of pipeline filers.\13\ Furthermore, shippers can use the data
already on Form No. 6 \14\ and their
[[Page 11892]]
knowledge of the pipeline system to support any cost-of-service
complaints. The record does not support imposing this additional annual
reporting requirement on pipelines.
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\13\ Our decision to deny the Joint Shippers' request is
supported by the fact that there are only a limited number of page
700 filers (6.9 percent or 15 total filers) that transport
significant quantities (greater than 10 percent of total pipeline
capacity) of both crude oil and petroleum products as reflected on
Form No. 6, page 601.
\14\ Regarding cost-of-service complaints, Form No. 6 already
provides separate crude and product data for several costs,
transportation revenues, and throughput. Pages 302-303 of Form No. 6
include separate crude and product cost data for salary and wages,
fuel and power, outside services, rentals, insurance, taxes, and
depreciation. Pages 300-301 of Form No. 6 separate revenues
associated with crude transportation from revenues associated with
product transportation.
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8. We also decline to adopt the proposal contemplated in the ANOPR
that pipelines file supplemental page 700s for non-contiguous and major
rate design systems.\15\ As a general matter, such filings would not
provide shippers with the information needed to evaluate each pipeline
system on a cost-of-service basis.\16\ However, despite providing
limited benefits, these filings would involve some of the same
complexity as full rate design segmentation, requiring the pipeline to
allocate costs to different parts of its system either by direct
assignment or via some other allocation method.\17\ Given this
additional complexity, we conclude that requiring these supplemental
page 700s filings would not be appropriate for the purposes of a
preliminary screen in the Commission's simplified indexing ratemaking
regime that relies upon industry-wide costs and not the pipeline's
individual cost of service.
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\15\ ANOPR, 157 FERC ] 61,047 at P 28 (defining major pipeline
systems as ``large pipeline systems (at least over 250 miles) that
serve markets (either origin or destination) different from the
remainder of the pipeline's system'' and ``separate pipeline systems
(even those below the 250-mile threshold) established by a final
Commission order in a litigated rate case'').
\16\ Much like the total company data, the partial segmentation
proposals may commingle costs from multiple rate design systems or
from parts of the system using different rate methodologies (such as
indexed, market-based, and settlement rates).
\17\ See id. PP 35-42 (explaining how these proposals would
require additional data on page 700 to address allocation issues);
AOPL Initial Comments, Docket No. RM17-1, Van Hoecke Decl. at 25
(Jan. 18, 2017) (explaining allocation of costs).
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9. Finally, regarding the ANOPR's proposal to disaggregate revenue
and throughput data between cost and non-cost based-rates,\18\ we find
that this proposal would be overly complex, and therefore, not
consistent the Commission's simplified and streamlined indexing regime.
Furthermore, the ANOPR's proposal to disaggregate revenue and
throughput data between cost and non-cost based rates could lead to
misleading comparisons of the pipeline's indexed rates on one portion
of the pipeline system to the costs of the entire pipeline.\19\
Although the ANOPR sought to propose ways in which the data could
nonetheless be useful,\20\ we conclude that the potential distortion
caused by such an ``apples to oranges'' comparison supports not
imposing this disaggregation of revenue and throughput data as an
annual, industry-wide reporting requirement. These issues are better
addressed in individual cost-of-service complaint proceedings.
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\18\ ANOPR, 157 FERC ] 61,047 at PP 43-46.
\19\ For example, a contractual committed rate could apply to
the newer part of the pipeline system for which the rate base has
not depreciated. In contrast, the cost-based rates may apply to
older, legacy parts of the system in which the rate base has
depreciated. Id. at n.65. In acknowledging this mismatch, the
Commission specifically stated that it did not intend to use the
disaggregated revenues under the Commission's indexing regime, which
is the primary regime for setting pipeline rates. Id. P 46.
\20\ Id.
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10. In declining to adopt these additional reporting obligations on
page 700, we seek to preserve the intent of the Energy Policy Act of
1992 to ensure a simplified ratemaking regime. While these changes to
page 700 would require pipelines to provide more cost-of-service
information in their annual filings, the Commission's primary oil
pipeline ratemaking regime is indexing, not cost of service.\21\ Since
the Energy Policy Act of 1992, the Commission has periodically expanded
the information that pipelines must report on page 700,\22\ and we are
concerned about further expanding this reporting requirement in
circumstances where, as here, we believe that it would provide minimal
benefits to shippers while expanding the burden and complexity under
our indexing regime. Rather than imposing another additional annual
industry-wide reporting requirement, we prefer less burdensome and less
complex options that are consistent with the Energy Policy Act of
1992's mandate for simplified rate regulation. For example, as an
alternative to establishing an industry-wide reporting requirement,
under the Commission's current policies, shippers are able to file
cost-of-service complaints and, once such a complaint is filed, an oil
pipeline may be required to provide more specific data than the
contents of page 700 upon a shipper's complaint against the pipeline's
rates.\23\ Furthermore, in responding to a cost-of-service complaint,
the Commission will consider arguments beyond the total company cost-
of-service data on page 700, and this more expansive evaluation could
include claims by shippers that the pipeline's segments are obscuring
over-recoveries. In such circumstances, the Commission will set such
issues of material fact for hearing.\24\ We believe this approach more
appropriately balances pipeline and shipper interests under our
simplified indexing regime.
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\21\ AOPL II, 281 F.3d at 244.
\22\ As promulgated in 1994, page 700 included only four lines:
(1) Total costs, (2) revenues, (3) barrels, and (4) barrel-miles.
Cost-of-Service Reporting and Filing Requirements for Oil Pipelines,
Order No. 571, FERC Stats. & Regs. ] 31,006, at 31,168-69 (1994),
aff'd, AOPL I, 83 F.3d 1424 (D.C. Cir. 1996). Page 700 subsequently
expanded to include depreciation expense, amortization of deferred
earnings, rate base, rate of return, return on rate base, income tax
allowance, and total cost of service. Revisions to and Electronic
Filing of the FERC Form No. 6 and Related Uniform Systems of
Account, Order No. 620, FERC Stats. & Regs. ] 31,115 (2000), reh'g
denied, Order No. 620-A, 94 FERC ] 61,130 (2001). The third
iteration of page 700 added additional information regarding rate
base, rate of return, return on trended original cost rate base, and
income tax allowance. Revisions to Page 700 of FERC Form No. 6,
Order No. 783, 144 FERC ] 61,049, at PP 29-40 (2013), reh'g denied,
Order No. 783-A, 148 FERC ] 61,235 (2014).
\23\ See ConocoPhillips Co. v. SFPP, L.P., 137 FERC ] 61,005
(2011) (upon a cost-of-service complaint, requiring the pipeline to
provide system-specific data prior to further investigation at
hearing). Furthermore, if not available prior to the Commission's
investigation at hearing, the additional information sought by the
Joint Shippers' petition becomes available at an investigatory
hearing as part of the discovery process.
\24\ The Commission applies a flexible standard when deciding
whether to set a cost-of-service complaint for hearing. See, e.g.,
Epsilon Trading LLC v. Colonial Pipeline Co., 164 FERC ] 61,202, at
PP 5, 50-51 (2018) (setting for hearing a cost-of-service complaint
where pipeline's page 700 showed revenues exceeding costs by 2.5
percent, but the complainants alleged reasonable grounds to suggest
that the cost components embedded in page 700 were not accurate).
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11. We also decline to adopt the proposals in the ANOPR for
modifying the Commission's policies for addressing protests and
complaints against index rate increases. However, the Commission
discusses some potential changes to these policies in our concurrent
order in HollyFrontier.\25\
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\25\ See HollyFrontier Ref. & Mktg. LLC v. SFPP, L.P., v 170
FERC ] 61,133 (2020). Among other things, that order, explains that
the substantially exacerbate test (which was one of the issues
discussed in the ANOPR) is arguably inconsistent with the objectives
of indexing, and proposes to eliminate the substantially exacerbate
test and replace it with the percentage comparison test. We also
plan to initiate a separate, generic proceeding in which we will be
requesting briefing from industry participants on (a) the proposal
to process complaints against index rate increases using the
percentage comparison test and to eliminate the substantially
exacerbate test and (b) the use of the 10 percent threshold level
when applying the percentage comparison test to complaints.
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12. Accordingly, we exercise our discretion to withdraw the ANOPR
and to terminate the proceeding in Docket No. RM17-1. Similarly, we
also deny the Joint Shippers' petition for rulemaking. We continue to
monitor and evaluate the Commission's oil pipeline policies, and value
the comments filed by participants in these proceedings. This input
will be considered in our ongoing effort to identify potential
enhancements to our regulatory policies and processes.
[[Page 11893]]
By direction of the Commission. Commissioner Glick is dissenting
with a separate statement attached.
Issued: February 20, 2020.
Kimberly D. Bose,
Secretary.
United States of America Federal Energy Regulatory Commission
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Docket No.
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Revisions to Indexing Policies and Page 700 of FERC Form RM17-1-000
No. 6..................................................
Petition for a Rulemaking of the Liquids Shippers Group, RM15-19-000
Airlines for America, and the National Propane Gas
Association............................................
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GLICK, Commissioner, dissenting:
I am dissenting from today's order withdrawing the Advance
Notice of Proposed Rulemaking (ANOPR) and denying shippers' petition
for rulemaking, because the Commission must do more to ensure
shippers and the Commission have the information necessary to
protect against unjust and reasonable oil pipeline rates.\26\ It is
especially critical to provide shippers with adequate transparency
into pipeline costs, given that the Commission has chosen to rely
solely on shippers to ensure that pipeline rates are just and
reasonable, as required by the Interstate Commerce Act (ICA).\27\
The Commission has the statutory authority to initiate its own cost-
of-service investigations into pipeline rates but has for decades
chosen not to do so.\28\ Instead of summarily terminating this
proceeding, the Commission should have proceeded with a Notice of
Proposed Rulemaking aimed at enhancing pipelines' data reporting
requirements, so that the information available to shippers and the
public is useful both in the evaluation of index filings and for
cost-of-service rate challenges.
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\26\ Revisions to Indexing Policies and Page 700 of FERC Form
No. 6, 170 FERC ] 61,134 (2020) (Withdrawal Order).
\27\ 49 App. U.S.C. 1(5) (1988).
\28\ As the Commission explained in Order No. 561, the
Commission retains the responsibility to ensure rates are just and
reasonable under the ICA, and for this reason it ``will not
promulgate an explicit bar to Commission-initiated rate
investigations.'' Revisions to Oil Pipeline Regulations Pursuant to
the Energy Policy Act of 1992, Order No. 561, FERC Stats. & Regs. ]
30,985, at 30,967 (1993). Nonetheless, the Commission explained
that, while it ``believes it is advisable to retain the authority to
investigate a rate on its own motion, it should make clear that it
does not contemplate invoking such authority except in the most
unusual circumstances.'' Id.
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The Commission is responsible for ensuring that the rates oil
pipelines charge are just and reasonable. Through the ANOPR, the
Commission sought to enhance the transparency of information
reported on FERC Form No. 6, page 700, to ensure the public can
effectively assess the reasonableness of oil pipeline rates and so
that the Commission can ``better fulfill its statutory obligations
under the ICA.'' \29\ As the Commission explained, a pipeline's
costs associated with providing one service may be ``fundamentally
different'' from the costs of providing another service.\30\ Because
the Commission's regulations only require pipelines to report
company-wide data, the information currently available to shippers
is at best, a rough approximation of the costs underlying a
particular shipper's rates.
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\29\ Revisions to Indexing Policies and Page 700 of FERC Form
No. 6, 157 FERC ] 61,047, at P 5 (2016) (ANOPR Order).
\30\ Id. P 27.
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In the ANOPR, the Commission proposed to require pipelines to
report more granular data, so that shippers could use the
information to compare the rate they are being charged ``with costs
that are more closely associated with that particular rate.'' \31\
The Commission stated that this information ``would be useful both
in the evaluation of index filings . . . and for cost-of-service
rate challenges to oil pipeline rates.'' \32\ However, in today's
order, the Commission does a complete about-face, withdrawing its
proposal on grounds that it is ``unnecessary and inconsistent'' with
the purposes of a ``preliminary screen.'' \33\ The Commission fails
to explain how the information currently available to shippers is
adequate for purposes of monitoring and challenging the justness and
reasonableness of oil pipeline rates, except to say that shippers
can use ``their knowledge of the pipeline system to support any
cost-of-service complaints.'' \34\ Moreover, while the Commission
notes the potential cost impact this ANOPR proposal may have on oil
pipeline companies, it appears to give scant consideration to the
benefit this additional information would have for ratepayers and
the public. Absent greater transparency into the costs underlying a
specific rate, shippers are left with no more than a pitiable choice
between the rate charged and a costly fishing expedition to obtain
the information they need to challenge the rate in the first place.
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\31\ Id.
\32\ Id.
\33\ Withdrawal Order, 170 FERC ] 61,134 at P 6.
\34\ Id. P 7.
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In light of the Commission's historic practice of relying on
shippers to challenge rates rather than initiate its own
investigations where the rates charged may no longer be just and
reasonable, it is imperative that the Commission ensure shippers
have access to the information they need to carry out this essential
check. In today's order, the Commission fails to fulfill its last
remaining responsibility to ensure oil pipeline rates remain just
and reasonable.
For these reasons, I respectfully dissent.
Richard Glick.
Commissioner.
[FR Doc. 2020-04069 Filed 2-27-20; 8:45 am]
BILLING CODE 6717-01-P