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Federal Register / Vol. 86, No. 19 / Monday, February 1, 2021 / Rules and Regulations
the initial orders or while rehearing is pending.6
5. Three weeks after the Commission issued Order No. 871, the U.S. Court of Appeals for the District of Columbia Circuit D.C. Circuit issued an en banc decision in Allegheny.7 The court held that the Commissions use of tolling orders solely to allow itself additional time to consider an application for rehearing does not preclude operation of the NGAs deemed denial provision,8
which enables a rehearing applicant to obtain judicial review after thirty days of agency inaction.9 The court explained that, to prevent a rehearing from being deemed denied, the Commission must act on an application for rehearing within thirty days of its filing by taking one of the four NGA-enumerated actions: Grant rehearing, deny rehearing, or abrogate or modify its order without further hearing.10
6. On July 9, 2020, INGAA filed a request for clarification or, in the alterative, rehearing of Order No. 871.
On the same day, Kinder Morgan and TC Energy also filed requests for rehearing.
II. Discussion 7. We believe that the issues raised regarding this rulemaking merit further consideration by the Commission.
Accordingly, to facilitate our reconsideration of the rulemaking and ensure a complete record for further Commission action, we provide all interested parties an opportunity to comment on the arguments in the rehearing requests, including, but not limited to, the issues enumerated below.
a. Should the Commission withhold authorizations to commence construction during the pendency of all rehearing requests? Alternatively, should the Commission withhold authorizations to commence construction only during the pendency of rehearing requests that raise certain issues or arguments? If the Commission were to limit such a rule to only certain issues or arguments, which issues or arguments should trigger that rule?
b. If the Commission were to adopt a rule of withholding authorizations to commence construction while rehearing is pending, should that rule apply to all orders pertaining to an NGA section 3
authorization or section 7 certificate or only a subset thereof?
6 Order No. 871 also revised 153.4 of the Commissions regulations to incorporate a crossreference to new 157.23.
7 964 F.3d 1.
8 15 U.S.C. 717ra.
9 Allegheny, 964 F.3d at 1819.
10 See id. at 13 quoting 15 U.S.C. 717ra.

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c. In its rehearing request, INGAA
poses a number of hypotheticals regarding circumstances that may unfold following Allegheny.11 Please comment on how a rule withholding authorizations to commence construction during rehearing, if appropriate, should apply to those circumstances.
d. Should the Commission modify its practices or procedures to address concerns regarding the exercise of eminent domain while rehearing requests are pending before the Commission? If so, how?
e. If the Commission retains the rule withholding authorizations to commence construction while rehearing is pending, at what point in time should projects be permitted, upon receipt of an appropriate authorization, to commence construction? For example, should the Commission set a specific time, such as 90 days after the filing for a request for rehearing, for the Commission to issue an authorization to proceed?
8. Briefs shall be due within 21 days February 16, 2021. Reply briefs shall be due 15 days thereafter March 3, 2021. Barring exceptional circumstances, the Commission will issue an order addressing the issues raised on rehearing and in the briefs within 60 days of receipt of the reply briefs.
III. Filing Procedures 9. Submissions must refer to Docket No. RM2015001, and must include the filers name, the organization they represent, if applicable, and their address. The Commission encourages electronic filing via the eFiling link on the Commissions website 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-toPDF format and not in a scanned format.
If filing electronically, you do not need to make a paper filing.
10. In lieu of electronic filing, you may submit a paper copy. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426.
Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852. The first page of any filing should include docket number RM2015001.
11 INGAA

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11. All submissions will be placed in the Commissions public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below.
IV. Document Availability 12. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through the Commissions Home Page http
www.ferc.gov. At this time, the Commission has suspended access to the Commissions Public Reference Room due to the Presidents March 13, 2020 proclamation declaring a National Emergency concerning the Novel Coronavirus Disease COVID19.
13. From the Commissions 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 in the docket number field.
14. User assistance is available for eLibrary and the Commissions website during normal business hours from FERC Online Support at 202 5026652
toll free at 18662083676 or email at ferconlinesupport@ferc.gov, or the Public Reference Room at 202 502
8371, TTY 202 5028659. Email the Public Reference Room at public.referenceroom@ferc.gov.
V. Effective Date 15. The effective date of the document published on July 6, 2020 85 FR 40113
is confirmed: August 5, 2020.
By the Commission. Commissioner Danly is dissenting with a separate statement attached.
Issued: January 26, 2021.
Kimberly D. Bose, Secretary.

United States of America Federal Energy Regulatory Commission Limiting Authorizations To Proceed With Construction Activities Pending Rehearing Docket No. RM2015001
DANLY, Commissioner, dissenting:
1. On June 9, 2020, the Commission issued a final rule providing that an authorization to proceed with construction activities for a Natural Gas Act NGA section 3 1 authorization or 1 15

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U.S.C. 717b 2018.

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