[Federal Register Volume 74, Number 144 (Wednesday, July 29, 2009)]
[Proposed Rules]
[Pages 37658-37666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17623]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 284

[Docket No. RM09-2-000]


Contract Reporting Requirements of Intrastate Natural Gas 
Companies

Issued July 16, 2009.
AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Notice of proposed rulemaking.

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[[Page 37659]]

SUMMARY: The Commission is proposing to revise its contract reporting 
requirements for those natural gas pipelines that fall under the 
Commission's jurisdiction pursuant to section 311 of the Natural Gas 
Policy Act or section 1(c) of the Natural Gas Act. The Commission is 
proposing to require the existing annual Sec.  284.126(b) transactional 
reports to be filed on a quarterly basis, require that the reports 
include certain additional types of information and cover storage 
transactions as well as transportation transactions, establish a 
procedure for the Sec.  284.126(b) reports to be filed in a uniform 
electronic format and posted on the Commission's Web site, and hold 
that those reports must be public and may not be filed with information 
redacted as privileged.

DATES: Comments are due October 27, 2009.

ADDRESSES: You may submit comments, identified by docket number, by any 
of the following methods:
     Agency Web Site: http://www.ferc.gov. Documents created 
electronically using word processing software should be filed in native 
applications or print-to-PDF format and not in a scanned format.
     Mail/Hand Delivery: Commenters unable to file comments 
electronically must mail or hand deliver an original and 14 copies of 
their comments to: Federal Energy Regulatory Commission, Secretary of 
the Commission, 888 First Street, NE., Washington, DC 20426.
Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Comment 
Procedures Section of this document.

FOR FURTHER INFORMATION CONTACT:
Vince Mareino (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street, NE., 
Washington, DC 20426, (202) 502-6167, [email protected].
Julie Parsons (Technical Information), Office of Energy Markets 
Regulation, Federal Energy Regulatory Commission, 888 First Street, 
NE., Washington, DC 20426, (202) 502-8298, [email protected].


SUPPLEMENTARY INFORMATION: 

Table of Contents

 
                                                               Paragraph
                                                                  No.
 
I. Background...............................................           2
    A. Current Regulations..................................           2
    B. Petition and Notice of Inquiry.......................           9
    C. Industry Comments on Notice of Inquiry...............          12
II. Discussion..............................................          16
    A. Report Frequency and Content.........................          18
    B. Online Posting.......................................          28
    C. Confidentiality Policy...............................          30
    D. Miscellaneous Issues.................................          33
III. Regulatory Requirements................................          35
    A. Information Collection Statement.....................          35
    B. Environmental Analysis...............................          38
IV. Regulatory Flexibility Act [Analysis or Certification]..          39
V. Comment Procedures.......................................          41
VI. Document Availability...................................          45
 

Notice of Proposed Rulemaking

Issued July 16, 2009.
    1. The Commission is proposing to modify its contract reporting 
requirements for (1) intrastate pipelines providing interstate services 
pursuant to section 311 of the Natural Gas Policy Act of 1978 (NGPA) 
\1\ and (2) Hinshaw pipelines providing interstate services subject to 
the Commission's Natural Gas Act (NGA) jurisdiction pursuant to blanket 
certificates issued under Sec.  284.224 of the Commission's 
regulations.\2\ First, the Commission proposes to require intrastate 
and Hinshaw pipelines to file quarterly reports of all transportation 
and storage transactions. Second, the Commission proposes to require 
that the reports include certain additional types of information not 
currently reported. Third, the Commission proposes to establish a 
procedure for the reports to be filed in a uniform electronic format 
and posted on the Commission's Web site. Fourth, the Commission 
proposes to require that reports be public and not filed with 
information redacted as privileged. These proposals are intended to 
improve market transparency, without making it unduly burdensome for 
intrastate and Hinshaw pipelines to participate in interstate markets.
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    \1\ 15 U.S.C. 3372.
    \2\ Section 1(c) of the NGA exempts from the Commission's NGA 
jurisdiction pipelines which transport gas in interstate commerce if 
(1) they receive natural gas at or within the boundary of a State, 
(2) all the gas is consumed within that State, and (3) the pipeline 
is regulated by a State Commission. This exemption is referred to as 
the Hinshaw exemption after the Congressman who introduced the bill 
amending the NGA to include Sec.  1(c). See ANR Pipeline Co. v. 
Federal Energy Regulatory Comm'n, 71 F.3d 897, 898 (1995) (briefly 
summarizing the history of the Hinshaw exemption).
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Background

A. Current Regulations

    2. NGPA section 311 authorizes the Commission to allow intrastate 
pipelines to transport natural gas ``on behalf of'' interstate 
pipelines or local distribution companies served by interstate 
pipelines ``under such terms and conditions as the Commission may 
prescribe.'' \3\ NGPA Sec.  601(a)(2) exempts transportation service 
authorized under NGPA section 311 from the Commission's NGA 
jurisdiction. Congress adopted these provisions in order to eliminate 
the regulatory barriers between the intrastate and interstate markets 
and to promote the entry of intrastate pipelines into the interstate 
market. Such entry eliminates the need for duplication of facilities 
between interstate and intrastate pipelines.\4\ Shortly after the 
adoption of the NGPA, the Commission authorized Hinshaw pipelines to 
apply for NGA section 7 certificates authorizing them to transport 
natural gas in interstate commerce in the same manner as intrastate 
pipelines may do under NGPA section 311.\5\
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    \3\ 15 U.S.C. 3371(c).
    \4\ EPGT Texas Pipeline, 99 FERC ] 61,295, at 62,252-62,253 
(2002).
    \5\ Certain Transportation, Sales, and Assignments by Pipeline 
Companies not Subject to Commission Jurisdiction Under Section 1(c) 
of the Natural Gas Act, Order No. 63, FERC Stats. & Regs. ] 30,118, 
at 30,824-25 (1980).

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[[Page 37660]]

    3. Subpart C of the Commission's Part 284 open access regulations 
(18 CFR 284.121-126) implements the provisions of NGPA section 311 
concerning transportation by intrastate pipelines. Section 284.224 of 
the regulations provides for the issuance of blanket certificates to 
Hinshaw pipelines to provide open access transportation service ``to 
the same extent that, and in the same manner'' as intrastate pipelines 
are authorized to perform such service by Subpart C. The Part 284, 
Subpart C, regulations require that intrastate pipelines performing 
interstate service under NGPA section 311 must do so on an open access 
basis.\6\ However, consistent with the NGPA's goal of encouraging 
intrastate pipelines to provide interstate service, the Commission has 
not imposed on intrastate pipelines all of the Part 284 requirements 
imposed on interstate pipelines.\7\ For example, when the Commission 
first adopted the Part 284 open access regulations in Order No. 436, 
the Commission exempted intrastate pipelines from the requirement that 
they offer open access service on a firm basis.\8\ The Commission found 
that requiring intrastate pipelines to offer firm service to out-of-
state shippers could discourage them from providing any interstate 
service, because such a requirement could progressively turn the 
intrastate pipeline into an interstate pipeline against its will and 
against the will of the responsible State authorities. Similarly, Order 
No. 636-B exempted intrastate pipelines from the requirements of Order 
No. 636.\9\ Those requirements included capacity release, electronic 
bulletin boards (now Internet Web sites), and flexible receipt and 
delivery points.
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    \6\ See 18 CFR 284.7(b), 284.9(b) and 284.122.
    \7\ Associated Gas Distributors v. FERC, 824 F.2d 981, 1002-1003 
(D.C. Cir. 1987) (AGD); Mustang Energy Corp. v. Federal Energy 
Regulatory Comm'n, 859 F.2d 1447, 1457 (10th Cir. 1988), cert. 
denied, 490 U.S. 1019 (1988); see also EPGT Texas Pipeline, 99 FERC 
] 61,295 (2002).
    \8\ Regulation of Natural Gas Pipelines After Partial Wellhead 
Decontrol, Order No. 436, FERC Stats. & Regs. ] 30,665, at 31,502 
(1985).
    \9\ Pipeline Service Obligations, and Revisions to Regulations 
Governing Self-Implementing Transportation Under Part 284 of the 
Commission's Regulations; Regulation of Natural Gas Pipelines After 
Partial Wellhead Decontrol, Order No. 636-B, 61 FERC ] 61,272, at 
61,992 n.26 (1992), order on reh'g, 62 FERC ] 61,007 (1993), aff'd 
in part and remanded in part sub nom. United Distribution Cos. v. 
FERC, 88 F.3d 1105 (D.C. Cir. 1996), order on remand, Order No. 636-
C, 78 FERC ] 61,186 (1997).
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    4. The Commission currently has less stringent transactional 
reporting requirements for NGPA section 311 intrastate pipelines and 
Hinshaw pipelines, than for interstate pipelines. In Order No. 637,\10\ 
the Commission revised the reporting requirements for interstate 
pipelines in order to provide more transparent pricing information and 
to permit more effective monitoring for the exercise of market power 
and undue discrimination. As adopted by Order No. 637, Sec.  284.13(b) 
requires interstate pipelines to post on their Internet Web sites basic 
information on each transportation and storage transaction with 
individual shippers, including revisions to a contract, no later than 
the first nomination under a transaction. This information includes:
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    \10\ Regulation of Short-Term Natural Gas Transportation 
Services and Regulation of Interstate Natural Gas Transportation 
Services, Order No. 637, FERC Stats. & Regs. ] 31,091, clarified, 
Order No. 637-A, FERC Stats. & Regs. ] 31,099, reh'g denied, Order 
No. 637-B, 92 FERC ] 61,062 (2000), aff'd in part and remanded in 
part sub nom. Interstate Natural Gas Ass'n of America v. FERC, 285 
F.3d 18 (D.C. Cir. 2002), order on remand, 101 FERC ] 61,127 (2002), 
order on reh'g, 106 FERC ] 61,088 (2004), aff'd sub nom. American 
Gas Ass'n v. FERC, 428 F.3d 255 (D.C. Cir. 2005).
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     The name of the shipper;
     The contract number (for firm service);
     The rate charged;
     The maximum rate;
     The duration (for firm service);
     The receipt and delivery points and zones covered;
     The quantity of natural gas covered;
     Any special terms or details, such as any deviations from 
the tariff;
     Whether any affiliate relationship exists.
    5. Section 284.13(c) of the Commission's regulations also requires 
interstate pipelines to file with the Commission on the first business 
day of each calendar quarter an index of its firm transportation and 
storage customers and to publish the same information on their Web 
sites. The information required to be included in the Index of 
Customers does not include the rates paid by the customers. Section 
284.13(e) requires interstate pipelines to file semi-annual reports of 
their storage injection and withdrawal activities, including the 
identities of the customers, the volumes injected into and withdrawn 
from storage for each customer and the unit charge and total revenues 
received.
    6. Order No. 637 did not modify the reporting requirements for NGPA 
section 311 intrastate pipelines and Hinshaw pipelines provided in 
Sec.  284.126(c) of the Commission's regulations. Section 284.126(b) of 
the regulations requires NGPA section 311 and Hinshaw pipelines to file 
with the Commission annual reports of their transportation 
transactions, but not their storage transactions. Those reports must 
include the following information:
     The name of the shipper receiving transportation service;
     The type of service performed (i.e., firm or 
interruptible);
     The total volumes transported for the shipper, including 
for firm service a separate statement of reservation and usage 
quantities;
     Total revenues received for the shipper, including for 
firm service a separate statement of reservation and usage revenues.
    7. Unlike Sec.  284.13(b), Sec.  284.126(b) does not require 
intrastate pipelines to include in these reports the rate charged under 
each contract, the duration of the contract, the receipt and delivery 
points and zones or segments covered by each contract, whether the 
contract includes any special terms and conditions, and whether there 
is an affiliate relationship between the pipeline and the shipper.
    8. Section 284.126(c) requires section 311 intrastate pipelines and 
Hinshaw pipelines to file a semi-annual report of their storage 
activity within 30 days of the end of each complete storage and 
injection season. This requirement is substantially the same as the 
Sec.  284.13(e) requirement that interstate pipelines file such semi-
annual reports of their storage activity.

 B. Petition and Notice of Inquiry

    9. In September 2008, an interstate storage provider with market-
based rates, SG Resources Mississippi, L.L.C. (SGRM) filed a request 
for waiver of the Sec. Sec.  284.13(b)(1)(iii) and (b)(2)(ii) 
requirements that interstate pipelines post the rates charged in firm 
and interruptible transactions no later than first nomination for 
service. SGRM requested the waiver for both itself and all interstate 
storage providers with market-based rates. It contended that the 
mandatory disclosure of commercially sensitive pricing information 
provides prospective customers and competitors, such as NGPA section 
311 intrastate storage providers that are only subject to semi-annual 
reporting requirements, with an unfair competitive advantage. SGRM also 
stated that a number of the NGPA section 311 storage providers submit 
their semi-annual storage reports subject to a request for privileged 
treatment pursuant to Sec.  388.112 of the Commission's regulations.
    10. In response, in November 2008 the Commission issued an order 
denying the request for waiver and the alternative petition for a 
rulemaking proceeding. The SGRM order held that the existing posting 
requirements for interstate pipelines are necessary to provide shippers 
with the price transparency they need to make informed decisions, and 
the ability to

[[Page 37661]]

monitor transactions for undue discrimination and preference.\11\ The 
Commission also found that the requested exemption would be contrary to 
NGA section 4(c)'s requirement that ``every natural gas company * * * 
keep open * * * for public inspection * * * all rates.'' \12\
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    \11\ SG Resources Mississippi, L.L.C., 125 FERC ] 61,191 (2008) 
(SGRM).
    \12\ 15 U.S.C. Sec.  717c(c).
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    11. Contemporaneously with the SGRM order, the Commission issued a 
Notice of Inquiry (NOI), requesting comments on whether the Commission 
should impose additional reporting requirements on NGPA section 311 
intrastate pipelines and on Hinshaw pipelines.\13\ The NOI stated that 
the Commission was interested in exploring (1) whether the disparate 
reporting requirements for interstate and NGPA section 311 and Hinshaw 
pipelines have an adverse competitive effect on the interstate 
pipelines and (2) if so, whether the Commission should modify the 
posting requirements for section 311 intrastate pipelines and Hinshaw 
pipelines in order to make them more comparable to the Sec.  284.13(b) 
posting requirements for interstate pipelines. Accordingly, the 
Commission sought comments to assist it in evaluating whether changes 
in the Commission's posting requirements should be considered in order 
to remove any competitive disadvantage for interstate pipelines, as 
compared to intrastate pipelines providing interstate transportation 
and storage services under section 311 of the NGPA and to Hinshaw 
pipelines providing such service pursuant to a Sec.  284.224 blanket 
certificate.
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    \13\ Contract Reporting Requirements of Intrastate Natural Gas 
Companies, Notice of Inquiry, FERC Stats & Regs. ] 35,559 (2008).
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C. Industry Comments on Notice of Inquiry

    12. A total of eighteen parties filed comments on the NOI. Fourteen 
of those represented NGPA section 311 or Hinshaw pipelines or their 
advocacy associations.
    13. Seven of the section 311 and Hinshaw pipelines, along with the 
Gas Processors Association (GPA) and the Texas Pipeline Association 
(TPA), completely oppose any change in the existing reporting 
requirements.\14\ They argue that imposing additional burdensome 
reporting requirements on section 311 and Hinshaw pipelines would be 
inconsistent with Congress' intent of allowing intrastate pipelines to 
participate in the interstate pipeline grid without unduly burdensome 
regulatory requirements. For example, they argue that the intrastate 
and Hinshaw pipelines would have to invest in additional information 
technology and personnel in order to comply with the Sec.  284.13 
requirement that pipelines post the information on an Internet Web site 
in downloadable file formats. They also maintain they already file 
enough information with other State and Federal agencies. Any further 
filings, they claim, would place them at a competitive disadvantage 
against intrastate-only pipelines, who are often allowed to keep 
confidential the identity of their shippers and the agreed-upon 
prices.\15\ Moreover, they state that they generally do not compete for 
the same customers as interstate pipelines, arguing that they generally 
feed into interstate pipelines, rather than running parallel and 
competing with them. The GPA also suggested that the Commission lacks 
jurisdiction to reform the reporting requirements.\16\
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    \14\ See, e.g., Comments of Arkansas Oklahoma Gas Corporation 
(AOG), Atmos Pipeline Texas (Atmos), Copano Energy, LLC (Copano), 
Cranberry Pipeline Corporation (Cranberry), DCP Midstream, LLC 
(DCP), Enogex LLC (Enogex), GPA, Jefferson Island Storage & Hub 
(Jefferson), and TPA.
    \15\ See, e.g., Comments of Atmos, DCP, Jefferson, Niska Gas 
Storage LLC (Niska), and the TPA.
    \16\ See GPA Comments at 2-5.
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    14. The remaining section 311 and Hinshaw commenters, including the 
American Gas Association (AGA), also oppose changing the current 
reporting requirements, and make many of the same arguments as are 
summarized above.\17\ However, these commenters suggested that, if the 
Commission believes increased reporting is necessary, it could consider 
increasing the frequency of the existing reports to quarterly and to 
hold such reports to be fully public. This more limited change in the 
current reporting requirements would address perhaps their primary 
concern: the cost of having to upgrade their existing information 
technology systems in order to maintain the necessary Internet Web 
site. If the Commission were to require reports more frequently than 
quarterly, these commenters support an exemption for smaller intrastate 
and Hinshaw pipelines. Several commenters propose such an exemption 
apply to intrastate and Hinshaw pipelines whose average natural gas 
deliveries over the previous three years did not exceed 50 million 
MMBtu, consistent with the exemption from the Order No. 720 requirement 
that non-NGA pipelines report scheduled gas flows.\18\
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    \17\ See, e.g., Comments of the AGA, Duke Energy Ohio/Duke 
Energy Kentucky (Duke), Niska, Northwest Natural Gas Company (NW 
Natural), and Pacific Gas and Electric Company (PG&E).
    \18\ Pipeline Posting Requirements under Section 23 of the 
Natural Gas Act, Order No. 720, 73 FR 73494 (December 2, 2008) FERC 
Stats & Regs. ] 31,283 (2008).
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    15. The other four commenters were an interstate pipeline (Tres 
Palacios), a company owning both interstate and NGPA section 311 
intrastate storage providers (Enstor), a producer/marketer (Apache), 
and the American Public Gas Association (APGA). They contend that the 
Commission should extend the Sec.  284.13 interstate pipeline reporting 
requirements to intrastate and Hinshaw pipelines. They assert that 
applying the same reporting requirements to all pipelines performing 
interstate service is both a matter of fairness and a practical 
solution to the discrimination and anti-competitive practices currently 
afflicting the market. Enstor states that in order to fully equalize 
the reporting requirements for interstate pipelines and intrastate and 
Hinshaw pipelines, the Commission must impose tariff filing 
requirements on intrastate and Hinshaw pipelines comparable to those 
currently imposed on interstate pipelines. Enstor points out that 
Sec. Sec.  284.13(b)(1)(viii) and 284.13(b)(2)(vi) require interstate 
pipelines to post all aspects in which a service agreement deviates 
from the pipeline's tariff. Enstor states that, while interstate 
pipelines are required to file tariffs in a prescribed format, there is 
no similar requirement for intrastate and Hinshaw pipelines, and this 
would complicate any requirement for those pipelines to post how 
particular contracts deviate from their tariff.

 II. Discussion

    16. Based upon a review of the comments received in response to the 
NOI, the Commission is proposing to revise its transactional reporting 
requirements for intrastate and Hinshaw pipelines in order to increase 
market transparency, without imposing unduly burdensome requirements on 
those pipelines. Transactional information provides price transparency 
so shippers can make informed purchasing decisions, and also permits 
both shippers and the Commission to monitor actual transactions for 
evidence of possible abuse of market power or undue discrimination. The 
Commission is proposing to increase the availability and usefulness of 
the transactional information reported by intrastate and Hinshaw 
pipelines by requiring that: (1) The existing annual Sec.  284.126(b) 
transactional reports be filed on a quarterly basis, (2) the quarterly 
reports

[[Page 37662]]

include certain additional types of information and cover storage 
transactions as well as transportation transactions, (3) the quarterly 
reports be filed in a uniform electronic format and posted on the 
Commission's Web site, and (4) those reports must be public and may not 
be filed with information redacted as privileged.
    17. The Commission is not proposing to impose on intrastate and 
Hinshaw pipelines the same reporting requirements as it imposes on 
interstate pipelines. For example, the Commission in this rulemaking 
will not require the intrastate and Hinshaw pipelines to make daily 
postings of transactional information on their own Web sites. As 
discussed below, the Commission believes that the revised reporting 
requirements proposed in this NOPR appropriately balance the need for 
increased transparency of intrastate and Hinshaw pipeline transactions, 
while avoiding unduly burdensome requirements that might discourage 
such pipelines from participating in the interstate market.

A. Report Frequency and Content

    18. Increasing the frequency of the Sec.  284.126(b) transactional 
reports by intrastate and Hinshaw pipelines from annual to quarterly 
and requiring additional information in those reports will provide 
shippers and the Commission with both more timely and more useful 
information concerning the transactions entered into by section 311 and 
Hinshaw pipelines. Specifically, the Commission proposes that the 
transactional reports to be filed on a quarterly basis include the 
following additional information not currently required by Sec.  
284.126(b).
    19. First, the Commission proposes to amend Sec.  284.126(b) to 
require the quarterly reports to include certain additional information 
about each transaction not currently required by Sec.  284.126(b). This 
information will include: (1) The rate charged under each contract, 
including a separate statement of each rate component, (2) the duration 
of the contract, (3) the primary receipt and delivery points covered by 
the contract, (4) the quantity of natural gas the shipper is entitled 
to transport, store, or deliver, and (5) whether there is an affiliate 
relationship between the pipeline and the shipper. The purpose of these 
reports is to allow shippers and others, including the Commission, to 
monitor transactions for undue discrimination and preference. This 
additional information is necessary to enable such entities to 
determine the extent to which particular transactions are comparable to 
one another. For example, contracts for service on different parts of a 
pipeline system or with different durations may not be comparable to 
one another. In addition, the requirement that affiliate relationships 
between the pipeline and its shippers be reported will allow the 
Commission and interested parties to monitor whether the pipeline is 
favoring its affiliates.
    20. Requiring section 311 intrastate and Hinshaw pipelines to 
report this additional information concerning each transaction will 
make the reporting requirements for those pipelines more comparable to 
the transactional posting requirements for interstate pipelines. 
Section 284.13(b)(1) requires interstate pipelines to post similar 
information concerning contract rates, duration, receipt and delivery 
points, entitlements to service, and affiliate relationships.\19\ Most 
of the remaining information which Sec.  284.13(b) requires interstate 
pipelines to post, but the Commission is not proposing to require 
section 311 and Hinshaw pipelines to report, relates to capacity 
release, which section 311 and Hinshaw pipelines are not required to 
permit.
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    \19\ See 18 CFR 284.13(b)(1)(ii), (iv), (v), and (vii) and 
(2)(iv), (v), (vi), and (ix).
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    21. Second, the Commission proposes to require that the proposed 
Sec.  284.126(b) quarterly reports include all storage transactions in 
addition to transportation transactions. Currently, Sec.  284.126(b) 
only requires section 311 and Hinshaw pipelines to report information 
with respect to transportation transactions. The only information the 
Commission currently requires those pipelines to report with respect to 
storage transactions is the information included in the Sec.  
284.126(c) semi-annual storage activity report. Aside from the fact the 
storage activity report is only filed on a semi-annual, rather than a 
quarterly basis, it also does not include all of the information that 
we are proposing to require to be included in the quarterly reports 
under revised Sec.  284.126(b). For example, Sec.  284.126(c) does not 
require section 311 and Hinshaw pipelines to report the rates provided 
for in each contract, the duration of each contract, or whether there 
is an affiliate relationship between the storage provider and its 
customer. In order to assure that section 311 and Hinshaw pipelines 
report the same information about storage transactions as 
transportation transactions and on the same schedule, the Commission 
proposes to revise section 284.126(b) to cover both transportation and 
storage transactions. Clearly, there is just as great a need for 
transparency of storage transactions as of transportation transactions.
    22. While we are proposing to revise Sec.  284.126(b) to include 
storage transactions, we will continue to require section 311 and 
Hinshaw pipelines to make the semi-annual storage activity reports 
currently required by Sec.  284.126(c). Those reports include 
information that will not be contained in the proposed quarterly 
transactional reports. Specifically, Sec.  284.126(c) requires section 
311 and Hinshaw pipelines to report total volumes injected into storage 
during each complete storage injection season and total volumes 
withdrawn from storage during each complete storage withdrawal season. 
Such seasonal information will not be captured by the Sec.  284.126(b) 
quarterly transactional reports, because those reports will not 
correlate with the typical five-month withdrawal and seven-month 
injection seasons. Moreover, retaining the Sec.  284.126(c) semi-annual 
storage activity report for section 311 and Hinshaw pipelines is 
consistent with the Commission's existing requirement, in Sec.  
284.13(e), that interstate pipelines also make such semi-annual storage 
activity reports in addition to posting transactional information 
pursuant to Sec.  284.13(c).
    23. In proposing to require section 311 and Hinshaw pipelines to 
make quarterly transactional reports containing similar information to 
that reported by interstate pipelines, the Commission has sought to 
balance the benefits of increased transparency of intrastate and 
Hinshaw pipeline transactions with the interest in avoiding unduly 
burdensome requirements for those pipelines. Under the Commission's 
proposal, one primary difference will remain between the reporting 
requirements for interstate pipelines and the section 311 and Hinshaw 
pipelines: interstate pipelines will post transactional information 
daily on their Web sites, while section 311 and Hinshaw pipelines will 
submit this information in a quarterly report to the Commission. Four 
commenters \20\ requested that the Commission extend the Sec.  
284.13(b) daily interstate pipeline posting requirements to intrastate 
and Hinshaw pipelines. They asserted that this would address the 
concern that intrastate and Hinshaw pipelines have an unfair 
competitive advantage over interstate pipelines because of the 
disparate reporting requirement for the two sets of pipelines, and it 
would provide a greater ability to monitor the

[[Page 37663]]

market for potential discrimination. However, the Commission is not 
proposing at this time to impose the full interstate pipeline posting 
requirements on intrastate and Hinshaw pipelines for several reasons.
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    \20\ See, e.g., Comments of Tres Palacios, Enstor, Apache, and 
APGA.
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    24. First, one purpose of the NGPA was to induce intrastate 
pipelines to participate in the interstate market by ensuring that it 
would not be unduly burdensome to do so.\21\ This participation by 
intrastate pipelines eliminates the need for duplication of facilities 
between interstate and intrastate pipelines.\22\ Thus, as the court has 
stated, ``Congress intended that intrastate pipelines should be able to 
compete in the transportation market without bearing the burden of full 
regulation by FERC under the Natural Gas Act.'' \23\ AGA and several 
other intrastate and Hinshaw pipeline commenters indicated that they 
could make these reports on a quarterly basis, without incurring undue 
hardship.\24\ For example, AGA states, ``a quarterly filing requirement 
would strike an appropriate balance between any added transparency to 
the wholesale, interstate natural gas markets and the burden on LDCs 
and the markets in producing additional contract information.'' \25\
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    \21\ AGD, 824 F.2d at 1001-1003.
    \22\ EPGT Texas Pipeline, L.P., 99 FERC ] 61,295 at 62,252.
    \23\ Mustang Energy Corp. v. Federal Energy Regulatory Comm'n, 
859 F.2d 1447, 1457 (10th Cir. 1988), cert. denied, 490 U.S. 1019 
(1988); see also EPGT Texas Pipeline, 99 FERC ] 61,295 (2002).
    \24\ See, e.g., AGA Comments at 1-2, 9, 13, 16, 18-19; Duke 
Comments at 9; Niska Comments at 15; NW Natural Comments at 9, 11, 
13, 14; and PG&E Comments at 6, 10.
    \25\ AGA Comments at 2.
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    25. However, if the Commission were to require all intrastate and 
Hinshaw pipelines to post transactional information on a daily basis, 
all those pipelines would have to maintain their own Web sites for this 
purpose. Such daily postings of information about individual 
transactions could be significantly more burdensome than the quarterly 
reporting requirement the Commission is proposing. The cost of 
maintaining a Web site in compliance with NAESB standards appears to be 
the primary concern of many intrastate and Hinshaw pipelines. The TPA 
notes that NAESB compliance ``would require section 311 and Hinshaw 
pipelines to invest in additional information technology hardware and 
personnel,'' \26\ and notes that the Commission recently avoided 
requiring NAESB compliance for section 311 and Hinshaw pipelines in 
Order No. 720.\27\ Other pipelines expressed similar concerns about the 
cost of NAESB standards.\28\ Notably, Cranberry expressed doubt that it 
would be able to afford even an electronic bulletin board, given the 
small size of its staff.\29\ Further, as the AGA and others note, ``a 
daily reporting requirement would be unduly burdensome in light of the 
information that would be obtained,'' from the typical service 
provider, whose transactions often do not change on a day-to-day 
basis.\30\ Based on these comments, the Commission is concerned that a 
daily Internet posting requirement could discourage section 311 and 
Hinshaw pipelines from performing interstate service.
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    \26\ TPA Comments at 21.
    \27\ While Order No. 720 does require daily Internet postings of 
certain scheduled flow information, that requirement is only 
applicable to major non-interstate pipelines and does not require 
posting of information about individual transactions. By contrast, 
the reporting requirement proposed here will require all section 311 
and Hinshaw pipelines to report information about each customer 
contract.
    \28\ See AGA Comments at 2, 11, 15, 18; Copano Comments at 7; 
DCP Comments at 10; Enogex Comments at 9; NW Natural Comments at 3, 
8, 13.
    \29\ Cranberry Comments at 6-8.
    \30\ AGA Comments at 12-13; see also Duke Comments at 8; NW 
Natural at 14; PG&E Comments at 2, 5, 10.
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    26. Second, only two interstate pipelines filed comments claiming 
that daily posting by intrastate and Hinshaw pipelines is necessary to 
avoid adverse competitive effects on interstate pipelines. It thus does 
not appear that there is widespread concern among interstate pipelines 
that the disparate reporting requirements will cause significant 
adverse competitive effects. Moreover, our proposal to increase the 
frequency of intrastate and Hinshaw pipeline transactional reports and 
increase the information included in those reports will reduce the 
disparity in the reporting requirements for the two sets of pipelines. 
We recognize that some of the commenters have raised concerns about the 
ability of shippers and others to obtain access to the transactional 
reports filed by section 311 and Hinshaw pipelines with the Commission. 
For this reason, as discussed in the next two sections, the Commission 
is also proposing to take several actions to increase the accessibility 
of these reports, including providing for them to be posted in a 
standardized format on the Commission's Web site. This increased 
accessibility of the reports will also serve to improve market 
transparency, while minimizing additional burdens on section 311 and 
Hinshaw pipelines.
    27. We conclude that the comments in response to the NOI do not 
demonstrate a need to impose on section 311 and Hinshaw pipelines the 
increased burden of complying with the daily Sec.  284.13 transactional 
posting requirements. In these circumstances, the interest in avoiding 
unduly burdensome requirements that could discourage intrastate and 
Hinshaw pipelines from participating in the interstate market, contrary 
to the goal of the NGPA, provides a ``reasonable justification for 
excluding'' the intrastate and Hinshaw pipelines from the daily posting 
requirements.\31\
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    \31\ Cf. ANR v. FERC, 71 F.3d at 902.
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B. Online Posting

    28. In order to make the proposed quarterly reports filed with the 
Commission more accessible to the public, the Commission proposes 
requiring that the reports be filed in an electronic standardized 
format to be developed by the Commission staff. The Commission proposes 
the data be publicly available, and not filed on a redacted basis. This 
method will enhance the posting of quarterly reports on the 
Commission's Web site and facilitate easy access to the information by 
the public. At the same time, this procedure will avoid the costs of 
requiring intrastate pipelines to maintain a NAESB-compliant Web site, 
discussed above.
    29. In Order No. 720, the Commission ``clarifie[d] that the 
pipeline posting regulations do not impose NAESB requirements on non-
interstate pipelines,'' but that rather, ``posting pipelines need only 
comply with the manner of posting outlined in'' the new regulation.\32\ 
The Commission proposes a similar approach here. Rather than place the 
burden of Web site maintenance and standards compliance on individual 
pipelines, the Commission would take on that responsibility, with the 
pipelines only being responsible for collecting and filing the 
information with the Commission. Under the current rules, the 
Commission encourages parties to file intrastate reports using FERC-537 
Semi-Annual Storage Report for Activity under Section 284.122 and FERC-
549, Annual Transportation Report. Standardized formats have proven to 
be an effective way to increase practical access both for industry 
members and the Commission's own staff. Currently, FERC-549 and FERC-
537 filers are not required to use a standardized format; consequently 
the data collection has been inconsistent. The Commission therefore 
proposes to require section 311 and Hinshaw companies to submit their 
reports in a standardized electronic format. The Commission is 
currently in the process of developing a

[[Page 37664]]

standardized electronic format for making the reports proposed in this 
NOPR. Once that process is complete, the Commission will make the 
standardized format available for public comment.
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    \32\ Order No. 720 at P 98.
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C. Confidentiality Policy

    30. Finally, the Commission proposes to require such reports be 
posted without any information redacted as privileged. Currently, when 
a report is filed subject to a request for privileged treatment, any 
person desiring to see the report must file a formal request, pursuant 
to the Freedom of Information Act (FOIA) and Sec.  385.1112 of the 
Commission's Rules of Practice and Procedure,\33\ that the Commission 
make the report public. Due to the expense and delay caused by this 
additional step, in practice these requests have been infrequent. 
Further, as the APGA argues in its comments, allowing pricing 
information to be confidential undermines the Commission's goals of 
preventing undue discrimination and promoting price transparency. 
Adopting a prohibition on the confidential treatment of Sec.  
284.126(b) reports furthers all of these policy goals. Accordingly, the 
proposed standardized reporting form will include a statement that the 
report will be public.
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    \33\ 18 CFR 385.1112.
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    31. While several parties expressed concern about the commercial 
sensitivity of the information to be reported, the AGA comments, ``a 
quarterly reporting requirement should allay any concerns regarding the 
commercial sensitivity of contract data.'' \34\ The Commission concurs 
with this assessment, and finds that the public benefits of increasing 
the availability of market information far outweigh the risks posted by 
the commercial sensitivity of data from a previous quarter.
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    \34\ AGA Comments at 19.
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    32. In addition to the above policy considerations, the Commission 
finds that its governing statutes support public treatment of data 
reported both by Hinshaw pipelines and by NPGA section 311 pipelines. 
The Commission regulates interstate service performed by Hinshaw 
pipelines pursuant to the NGA.\35\ Therefore, NGA section 4(c)'s 
requirement that interstate pipelines publicly disclose contracts under 
such rules as the Commission may prescribe applies to the interstate 
services performed by Hinshaw pipelines pursuant to their Sec.  284.224 
blanket certificates. Furthermore, NGA section 23(a)(1) directs the 
Commission ``to facilitate price transparency in markets for the sale 
or transportation of physical natural gas in interstate commerce.'' 
\36\ While the NGPA does not contain an express public disclosure 
provision similar to NGA section 4(c), section 311(c) of the NGPA 
authorizes the Commission to prescribe the ``terms and conditions'' 
under which intrastate pipelines perform interstate service. Requiring 
public disclosure of transactional information for the purpose of 
allowing shippers and others to monitor NGPA section 311 transactions 
for undue discrimination is well within the Commission's broad 
conditioning authority under Sec.  311(c).\37\
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    \35\ See Consumers Energy Co. v. FERC, 226 F.3d 777 (6th Cir. 
2000) (finding that the Commission must act under NGA section 5 in 
order to require Hinshaw pipelines to change their rates).
    \36\ 15 U.S.C. 717t-2(a)(1). See Energy Policy Act of 2005, Pub. 
L. No. 109-58, Sec.  316 (``Natural Gas Market Transparency 
Rules''), 119 Stat. 594 (2005).
    \37\ See, e.g., AGD, 824 F.2d at 1015-1018 (D.C. Cir. 1987) 
(affirming the Commission's use of section 311(c) to require 
intrastate pipelines to permit their interstate sales customers to 
convert to transportation-only service).
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D. Miscellaneous Issues

    33. The Commission is proposing that the quarterly reports required 
by this NOPR include not only the full legal name, but also the 
``identification number'' of each shipper.\38\ The Commission is also 
proposing that the reports include the ``industry common code'' for 
each receipt and delivery point.\39\ The Commission is proposing to 
require that the reports include a shipper identification number, in 
order to simplify recordkeeping and minimize the ambiguity and 
confusion that can be caused by shippers whose names have changed, or 
whose names are similar to the names of other shippers. Similarly, the 
Commission is proposing to require that the reports include an industry 
common code for receipt and delivery points to minimize any ambiguity 
as to what receipt and delivery points are being reported and to ensure 
that all reporting pipelines identify such points in a consistent 
manner.
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    \38\ 18 CFR 284.126(b)(1)(i) of the proposed regulations.
    \39\ 18 CFR 284.126(b)(1)(iv) of the proposed regulations.
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    34. While the Commission is aware of some shipper identification 
standards and receipt and delivery point codes that are used in the 
natural gas industry (for example, Dun & Bradstreet, Inc.'s D-U-N-S 
identification numbers for shippers), it is reluctant to choose any 
particular standard without input as to that standard's cost-
effectiveness and usefulness. Accordingly, the Commission seeks 
comments from interested parties on two related questions: (1) What 
sort of shipper identification numbers and receipt and delivery point 
common industry codes are currently used or readily available to 
section 311 and Hinshaw pipelines?; and (2) Which shipper 
identification standard or standards and receipt and delivery point 
codes, if any, should be used?

III. Regulatory Requirements

A. Information Collection Statement

    35. The Office of Management and Budget (OMB) regulations require 
that OMB approve certain reporting, record keeping, and public 
disclosure requirements (collections of information) imposed by an 
agency.\40\ Therefore, the Commission is providing notice of its 
proposed information collections to OMB for review in accordance with 
section 3507(d) of the Paperwork Reduction Act of 1995.\41\ Upon 
approval of a collection of information, OMB will assign an OMB control 
number and an expiration date.
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    \40\ 5 CFR 1320.11.
    \41\ 44 U.S.C. 3507(d).
---------------------------------------------------------------------------

    36. The Commission estimates that on an annual basis the burden to 
comply with this proposed rule will be as follows:

----------------------------------------------------------------------------------------------------------------
                                                 Number of        Number of        Hours per
               Data collection                  respondents       responses         response       Total hours
----------------------------------------------------------------------------------------------------------------
FERC-549D...................................             125                4              3.5            1,750
----------------------------------------------------------------------------------------------------------------

    Total Annual Hours for Collection: 1,750 hours.
    These are mandatory information collection requirements.
    Information Collection Costs: Because of the various staffing 
levels that will be involved in preparing the

[[Page 37665]]

documentation (legal, technical and support) the Commission is using an 
hourly rate of $150 to estimate the costs for filing and other 
administrative processes (reviewing instructions, searching data 
sources, completing and transmitting the collection of information). 
The estimated cost is anticipated to be $262,500.
    Title: FERC-549D.
    Action: Proposed Data Collection.
    OMB Control No.: To be determined.
    Respondents: Natural gas pipeline companies.
    Frequency of Responses: On occasion.
    Necessity of Information: This proposed rule will improve the 
usefulness and transparency of market transactions. The increased 
frequency of transactional reporting will help the Commission identify 
and evaluate emerging trends and business conditions affecting 
reporting entities, including undue discrimination and preference. 
Additionally, the information contained in the quarterly reports will 
identify the economic effects of significant transactions and events, 
allow more timely evaluations of the adequacy of existing rates and aid 
in the development of needed changes to existing regulatory 
initiatives. Finally, more frequent and transparent reporting resulting 
from this proposed rule will help the Commission achieve its goal of 
vigilant oversight over reporting entities.
    37. The Commission requests comments on the utility of the proposed 
information collection, the accuracy of the burden estimates, how the 
quality, quantity, and clarity of the information to be collected might 
be enhanced, and any suggested methods for minimizing the respondent's 
burden, including the use of automated information techniques. 
Interested persons may obtain information on the reporting requirements 
or submit comments by contacting the Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426 (Attention: 
Michael Miller, Office of the Executive Director, 202-502-8415 or e-
mail [email protected]v). Comments may also be sent to the Office 
of Management and Budget (Attention: Desk Officer for the Federal 
Energy Regulatory Commission, fax: 202-395-7285 or e-mail: [email protected]).

B. Environmental Analysis

    38. 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.\42\ The 
Commission has categorically excluded certain actions from these 
requirements as not having a significant effect on the human 
environment.\43\ The actions proposed to be taken here fall within 
categorical exclusions in the Commission's regulations for rules that 
are corrective, clarifying or procedural, for information gathering, 
analysis, and dissemination, and for sales, exchange, and 
transportation of natural gas that requires no construction of 
facilities.\44\ Therefore an environmental review is unnecessary and 
has not been prepared in this rulemaking.
---------------------------------------------------------------------------

    \42\ Order No. 486, Regulations Implementing National 
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & 
Regs., Regulations Preambles 1986-1990 ] 30,783 (1987).
    \43\ 18 CFR 380.4.
    \44\ See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5) and 380.4(a)(27).
---------------------------------------------------------------------------

IV. Regulatory Flexibility Act [Analysis or Certification]

    39. The Regulatory Flexibility Act of 1980 (RFA) \45\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
The Commission is not required to make such analysis if proposed 
regulations would not have such an effect.
---------------------------------------------------------------------------

    \45\ 5 U.S.C. 601-612.
---------------------------------------------------------------------------

    40. Most of the natural gas companies regulated by the Commission 
do not fall within the RFA's definition of a small entity.\46\ 
Approximately 125 natural gas companies are potential respondents 
subject to the requirements adopted by this rule. For the year 2008 
(the most recent year for which information is available), 4 companies 
had annual revenues of less than $7 million. This represents 3.2 
percent of the total universe of potential respondents or only a very 
few entities that may have a significant burden imposed on them. In 
view of these considerations, the Commission certifies that this 
proposed rule's amendments to the regulations will not have a 
significant impact on a substantial number of small entities.
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    \46\ See 5 U.S.C. 601(3), citing section 3 of the Small Business 
Act, 15 U.S.C. 623. Section 3 of the SBA defines a ``small business 
concern'' as a business which is independently owned and operated 
and which is not dominant in its field of operation. The Small 
Business Size Standards component of the North American Industry 
Classification System defines a small natural gas pipeline company 
as one that transports natural gas and whose annual receipts (total 
income plus cost of goods sold) did not exceed $7 million for the 
previous year.
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V. Comment Procedures

    41. The Commission invites interested persons to submit comments on 
the matters and issues proposed in this notice to be adopted, including 
any related matters or alternative proposals that commenters may wish 
to discuss. Comments are due October 27, 2009. Comments must refer to 
Docket No. RM09-2-001, and must include the commenter's name, the 
organization they represent, if applicable, and their address in their 
comments.
    42. The Commission encourages comments to be filed electronically 
via the eFiling link on the Commission's Web site at http://www.ferc.gov. The Commission accepts most standard word processing 
formats. Documents created electronically using word processing 
software should be filed in native applications or print-to-PDF format 
and not in a scanned format. Commenters filing electronically do not 
need to make a paper filing.
    43. Commenters that are not able to file comments electronically 
must send an original and 14 copies of their comments to: Federal 
Energy Regulatory Commission, Secretary of the Commission, 888 First 
Street, NE., Washington, DC 20426.
    44. All comments will be placed in the Commission's public files 
and may be viewed, printed, or downloaded remotely as described in the 
Document Availability section below. Commenters on this proposal are 
not required to serve copies of their comments on other commenters.

VI. Document Availability

    45. 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 FERC's Home Page (http://www.ferc.gov) and in FERC's 
Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. 
Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.
    46. From FERC'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.
    47. User assistance is available for eLibrary and the FERC's Web 
site during normal business hours from FERC Online Support at 202-502-
6652 (toll free at 1-866-208-3676) or e-mail at 
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. E-mail the

[[Page 37666]]

Public Reference Room at [email protected].

List of Subjects in 18 CFR Part 284

    Incorporation by reference, Natural gas, Reporting and 
recordkeeping requirements.

    By direction of the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.

    In consideration of the foregoing, the Commission proposes to amend 
part 284, Chapter I, Title 18, Code of Federal Regulations, as follows:

PART 284--CERTAIN SALES AND TRANSPORTATION OF NATURAL GAS UNDER THE 
NATURAL GAS POLICY ACT OF 1978 AND RELATED AUTHORITIES

    1. The authority citation for part 284 continues to read as 
follows:

    Authority:  15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352; 
43 U.S.C. 1331-1356

    2. In Sec.  284.126, paragraph (b) is revised to read as follows:


Sec.  284.126  Reporting requirements.

* * * * *
    (b) Quarterly report.
    (1) Each intrastate pipeline must file a quarterly report with the 
Commission and the appropriate State regulatory agency that contains, 
for each transportation and storage service provided during the 
preceding calendar quarter under Sec.  284.122, the following 
information:
    (i) The full legal name, and identification number, of the shipper 
receiving the service, including whether there is an affiliate 
relationship between the pipeline and the shipper;
    (ii) The type of service performed (i.e., firm or interruptible 
transportation, storage, or other service);
    (iii) The rate charged under each contract, specifying the rate 
schedule/name of service and docket where the rates were approved. The 
report should separately state each rate component set forth in the 
contract (i.e., reservation, usage, and any other charges);
    (iv) The primary receipt and delivery points covered by the 
contract, including the industry common code for each point;
    (v) The quantity of natural gas the shipper is entitled to 
transport, store, or deliver under each contract;
    (vi) The duration of the contract, specifying the beginning and 
ending month and year of the current agreement;
    (vii) Total volumes transported, stored, injected or withdrawn for 
the shipper; and
    (viii) Total revenues received for the shipper. The report should 
separately State revenues received under each rate component;
    (2) The quarterly report for the period January 1 through March 31 
must be filed on or before May 1. The quarterly report for the period 
April 1 through June 30 must be filed on or before August 1. The 
quarterly report for the period July 1 through September 30 must be 
filed on or before November 1. The quarterly report for the period 
October 1 through December 31 must be filed on or before February 1.
    (3) Each report must be filed as prescribed in Sec.  385.2011 of 
this chapter as indicated in the General Instructions set out in the 
quarterly reporting form. Each report must be prepared in conformance 
with the Commission's software and reporting guidance, so as to be 
posted and available for downloading from the FERC Web site (http://www.ferc.gov). One copy of the report must be retained by the 
respondent in its files.
* * * * *
[FR Doc. E9-17623 Filed 7-28-09; 8:45 am]
BILLING CODE 6717-01-P