[Federal Register Volume 69, Number 70 (Monday, April 12, 2004)]
[Proposed Rules]
[Pages 19137-19139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8247]


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DEPARTMENT OF THE INTERIOR

Minerals Management Service

30 CFR Part 200


The Open and Non-Discriminatory Movement of Oil and Gas as 
Required by the Outer Continental Shelf Lands Act

AGENCY: Minerals Management Service (MMS), Interior.

ACTION: Advance notice of proposed rulemaking and announcement of 
public meetings.

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SUMMARY: The MMS requests comments and any suggestions to assist us in 
potentially amending our regulations regarding how the Department of 
the Interior (DOI) should ensure that pipelines transporting oil or gas 
under permits, licenses, easements, or rights-of-way on or across the 
Outer Continental Shelf (OCS) ``provide open and non-discriminatory 
access to both owner and non-owner shippers'' as required under section 
5(f) of the Outer Continental Shelf Lands Act (OCSLA). The MMS is the 
bureau in the DOI charged with fulfilling the Secretary of the 
Interior's (Secretary) responsibility under the OCSLA. We encourage the 
public and other interested parties to participate in planned public 
meetings and to provide comments and suggestions to help us clearly 
define changes to the appropriate MMS programs and regulations that may 
be necessary. The MMS is committed to making changes that reflect the 
Secretary's ``4C's'' philosophy of ``consultation, cooperation, and 
communication all in the service of conservation.'' The MMS is issuing 
this Advance Notice of Proposed Rulemaking to give the public and 
interested parties an opportunity to provide input to the MMS regarding 
what actions or processes the public and interested parties believe the 
Secretary should initiate to ensure that pipelines provide open and 
non-discriminatory access.

DATES: You must submit your comments by June 11, 2004. The MMS may not 
necessarily consider or include in the Administrative Record for any 
proposed rule comments that MMS receives after the close of the comment 
period or comments delivered to an address other than those listed 
below (see ADDRESSES). See the SUPPLEMENTARY INFORMATION section for 
the dates of the public meetings.

ADDRESSES: By mail: Director, Minerals Management Service, Attention: 
Policy and Management Improvement, 1849 C Street, NW., Mail Stop 4230, 
Washington, DC 20240-0001. By personal or messenger delivery: 1849 C 
Street NW., Room 4223, Washington, DC 20240-0001. The MMS is currently 
connected to the internet and able to receive e-mails. However, before 
e-mailing your comments during the comment period to ensure the MMS is 
connected, please contact Mr. Martin Grieshaber at 303-275-7118.

FOR FURTHER INFORMATION CONTACT: Martin Grieshaber at 303-275-7118 for 
information relating to the purpose of the meetings, the issues raised 
in this document, or for information relating to the rulemaking 
process. Persons who use a telecommunications device for the deaf (TDD) 
may call the Federal Information Relay Service (FIRS) at 1-800-877-
8330, 24 hours a day, seven days a week, to contact the above 
individual.

SUPPLEMENTARY INFORMATION: Comments, including names and street 
addresses of respondents, will be available for public review on 
request to Martin Grieshaber at the above

[[Page 19138]]

telephone number. Individual respondents may request confidentiality. 
If you wish to withhold your name or street address from public review 
or from disclosure under the Freedom of Information Act, you must state 
this prominently at the beginning of your written comment. Such 
requests will be honored to the extent allowed by law. However, we will 
not consider anonymous comments. All submissions from organizations and 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, will be 
available for public inspection in their entirety. If you wish to 
submit confidential or proprietary information that the MMS may 
consider in determining the extent of the potential issues covered by 
this notice without that information being available for public review, 
you must state this prominently on the pages you believe to contain 
such proprietary or confidential information. Such requests will be 
honored to the extent allowed by law.

I. Public Comment Procedures

    Your written comments should:
    1. Be specific;
    2. Explain the reason for your comments and suggestions;
    3. Address the issues outlined in this notice; and,
    4. Where possible, refer to the specific provision, section or 
paragraph of statutory law, case law or existing regulations which you 
are addressing.
    The comments and recommendations that are most useful and have 
greater likelihood of influencing decisions on the content of a 
possible future proposed rule are:
    1. Comments and recommendations supported by quantitative 
information or studies.
    2. Comments that include citations to and analyses of the 
applicable laws and regulations.
    We are particularly interested in receiving comments and 
suggestions about the topics identified in Section II, ``Description of 
Information Requested,'' and Section III, ``Definitions and Other 
Topics.''
    We will hold meetings during which the public will be able to 
comment on the scope, proposed action, and possible alternatives the 
MMS should consider. The purpose of the meetings is to gather comments 
and input from a variety of stakeholders and the public.
    Any resulting program changes will assist the MMS in fulfilling its 
responsibility of assuring open and non-discriminatory access to 
pipelines in the OCS. Our goals are to:
    1. Manage the development of mineral resources found under the OCS 
within the jurisdiction of the DOI;
    2. Develop and implement effective and fair MMS business practices; 
and
    3. Protect the environment while assuring the Nation's OCS 
resources are produced efficiently and equitably.
    The meetings will be held on the following dates at the specified 
locations and times:

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               Location                     Date and time          Address of meeting         Contact person
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Houston, Texas.......................  4/27/04, 9 a.m.........  InterContinental Hotel,  Martin C. Grieshaber,
                                                                 2222 West Loop South,    303-275-7118.
                                                                 Houston, TX 77027.
Washington, DC.......................  5/11/04, 9 a.m.........  U.S. Department of the   Martin C. Grieshaber,
                                                                 Interior, Yates          303-275-7118.
                                                                 Auditorium, First
                                                                 Floor, 1849 C Street,
                                                                 NW., Washington, DC
                                                                 20240-0001.
New Orleans, Louisiana...............  5/14/04, 9 a.m.........  Minerals Management      Martin C. Grieshaber,
                                                                 Service, Room 111,       303-275-7118.
                                                                 1201 Elmwood Park
                                                                 Blvd., New Orleans, LA
                                                                 70123.
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    Due to increased security requirements, attendees at the Washington 
and New Orleans meetings will need a picture ID in order to be admitted 
to the meeting. Additionally, for security reasons, we request that the 
New Orleans meeting attendees contact Cathy Moser at 504-736-2690 at 
least 48 hours prior to the meeting.
    The sites for the public meetings are accessible to individuals 
with physical impairments. If you need a special accommodation to 
participate in one or all of the meetings (e.g., interpreting service, 
assistive listening device, or materials in alternative format), please 
notify the contact person listed in this notice no later than 2 weeks 
prior to the scheduled meeting. Although we will make every effort to 
accommodate requests received, it may not be possible to satisfy every 
request.
    If you plan to present a statement at the meetings, we will ask you 
to sign in before the meeting starts and identify yourself clearly for 
the record. Your speaking time at the meeting(s) will be determined 
based upon the number of persons wishing to speak and the approximate 
time available for the session. You will be provided at least 3 minutes 
to speak.
    If you do not wish to speak at the meetings but you have views, 
questions, or concerns with regard to the MMS's responsibilities under 
OCSLA related to open and non-discriminatory access to pipelines, you 
may submit written statements at the meeting for inclusion in the 
public record. You may also submit written comments and suggestions 
regardless of whether you attend or speak at a public meeting. See the 
ADDRESSES section of this document for where to submit comments.

II. Description of Information Requested

    On October 10, 2003, the U.S. Court of Appeals for the District of 
Columbia Circuit, in Williams Cos. v. FERC, 345 F.3d 910 (D.C. Cir. 
2003), affirmed the district court decision which found that sections 
5(e) and (f) of the OCSLA, 43 U.S.C. 1334 (e) and (f), grant the 
Federal Energy Regulatory Commission (FERC) only limited authority to 
enforce open access rules on the OCS. (Specifically, FERC's role is 
essentially limited to what are commonly known as ``ratable take'' 
orders and capacity expansion orders.) According to the circuit court's 
decision, FERC's authority does not include the regulatory oversight 
described in FERC Orders 639 and 639A. As a result, the FERC 
regulations issued under 18 CFR Part 330 are not valid, and, therefore, 
not enforceable.\1\ The court stated that OCSLA section 5(f) ``simply 
requires the Secretary of the Interior to condition grants of rights-
of-way on the holder's agreeing to non-discriminatory transportation 
duties.''

[[Page 19139]]

345 F.3d at 913. The court further said, ``Without some explicit 
provision to the contrary (as exists for quantification of the ratable 
take duty), Congress presumably intended that enforcement would be at 
the hands of the obligee of the conditions [i.e., a person transporting 
oil or gas through the pipeline], the Secretary of the Interior (or 
possibly other persons that the conditions might specify).'' Id. At 
913-914.
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    \1\ The FERC regulations that the court held invalid required 
owners of OCS gas pipelines to file information indicating the rates 
the pipelines charged, the conditions of the service they provided, 
and whether they were affiliated with any of the shippers using 
their pipelines. The FERC regulations addressed OCS natural gas 
facilities that perform production or ``gathering'' functions, and 
do not fall within the FERC's jurisdiction under the Natural Gas Act 
(NGA) of 1938. (The term ``gathering'' has different meanings with 
respect to OCS pipelines, depending on whether it is used in the 
context of MMS royalty valuation regulations, or if it is used with 
reference to the NGA.) The FERC withdrew its regulations on March 
17, 2004. 69 FR 12539-12540.
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    The MMS has authority to regulate open and non-discriminatory 
access to pipelines operating under rights-of-way on the OCS, and is 
interested in hearing what you think ``open and non-discriminatory 
access'' means. Comments and suggestions from any party are welcomed 
and encouraged. The MMS is particularly interested in receiving 
responses from entities that have a right-of-way grant for one or more 
pipelines regulated by the MMS under OCSLA, entities that ship 
production through these pipelines, and purchasers and end-users of 
production shipped through these pipelines.
    The MMS is interested in determining the scope, magnitude, and 
seriousness of any instances where access or discrimination problems 
were encountered by service providers or shippers of natural gas, both 
for lines that do not operate under the jurisdiction of the NGA and 
those that do. (We are also interested in whether the lack of NGA-
regulatory oversight has had or may have potential positive or negative 
impacts). The MMS also is interested in the circumstances under which a 
service provider would deny service to a shipper. We solicit comments 
from any party that feels it has been denied open and non-
discriminatory access to pipelines on the OCS, and suggestions for 
actions that could have been taken or should be taken to prevent this 
from happening.
    A record of access issues that arise between shippers and service 
providers would help the MMS to gain a better perspective on the need 
for a regulatory framework to ensure open and non-discriminatory 
pipeline access. The MMS is giving consideration to establishing a 
hotline which could be used by both shippers and service providers to 
report concerns and perceived instances of open and non-discriminatory 
access violations. A hotline could be one way for MMS to document 
relevant complaints that occur.
    The MMS would like comments regarding the types of complaints that 
it might receive if it did establish a hotline. The MMS would like 
input concerning the advantages and disadvantages of resolving the 
complaints through an informal negotiation or a more rigorous dispute 
resolution process. The MMS would appreciate a discussion regarding the 
possible structure of either an informal or formal complaint resolution 
process. In the event the complaint escalated into a more formal 
dispute, the MMS would like comments on what the resolution process 
could look like and how it might differ from an informal complaint 
resolution process. The MMS also would like comments on whether 
interested parties would be more likely to participate in one type of 
complaint resolution process over another and what circumstances might 
affect this decision.
    Beyond questions of documenting complaints and methods for 
resolving disputes, the MMS would like comments concerning what factual 
information or data would be necessary to make a determination that 
open access has been denied or that discrimination has occurred, what 
mechanisms MMS could use to gather such information, and the extent to 
which the information should be made public. The MMS is interested in 
comments regarding whether this mandate can be accomplished in the 
absence of information collection and the dissemination of some or all 
of the information.

III. Definitions and Other Topics

    The MMS is committed to carrying out the Secretary's objectives and 
the requirements established by the OCSLA. We encourage the public to 
participate in the planned public meetings and to provide comments and 
suggestions to help us determine where changes are needed in the 
regulations. We are requesting input for defining terms used in this 
notice, and comments on other topics which are not identified in this 
notice but should be considered in a proposed rule. These include, but 
are not limited to, the following:
    A. Definitions: We are considering revising or creating definitions 
of the following terms:
    Non-discriminatory access
    Open access
    Pipelines subject to OCSLA
    Service provider
    Shipper
    B. Other specific topics that may be addressed at the meetings: The 
MMS is interested in receiving comments on any other issues relevant to 
the DOI's mandate under the OCSLA to assure ``open and non-
discriminatory access'' to pipelines on the OCS.

    Dated: March 29, 2004.
R.M. ``Johnnie'' Burton,
Director, Minerals Management Service.
[FR Doc. 04-8247 Filed 4-7-04; 3:28 pm]
BILLING CODE 4310-MR-P