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Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations Order addressing arguments raised on rehearing and clarification, and setting aside, in part, prior order.

ACTION:

The Federal Energy Regulatory Commission Commission addresses requests for rehearing and clarification on Order No. 871. In Order No. 871, the Commission issued a final rule to amend its regulations to preclude the issuance of authorizations to proceed with construction activities with respect to natural gas facilities approved pursuant to section 3 or section 7 of the Natural Gas Act NGA
until either the time for filing a request for rehearing of such order has passed with no rehearing request being filed or the Commission has acted on the merits of any rehearing request. This order revises the rule to provide that it will apply only when a request for rehearing
SUMMARY:

raises issues reflecting opposition to project construction, operation, or need.
Further, this order revises the rule to provide that the limit on construction authorization will only apply until the earlier of the date that a qualifying rehearing request is no longer pending before the Commission or 90 days following the date that a qualifying request for rehearing may be deemed denied by operation of law. In addition, the Commission announces a general policy with respect to stays of NGA
section 7c certificate orders, subject to a particularized application of the policy on a case-by-case basis, of its intent to stay its NGA section 7c certificate orders during the 30-day rehearing period and pending Commission resolution of any timely requests for rehearing filed by landowners, subject to the same 90-day
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time limitation referenced above and certain exceptions. This policy is not intended to prevent a project developer from continuing to engage in development related activities, as permitted consistent with the stay of the certificate, that do not require use of landowner property or that are voluntarily agreed to by the landowner during the stay period.
DATES: This rule is effective June 14, 2021.
Tara DiJohn, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC
20426, 202 5028671, tara.dijohn@
ferc.gov.

FOR FURTHER INFORMATION CONTACT:

SUPPLEMENTARY INFORMATION:

Table of Contents Paragraph numbers
I. Background
II. Discussion
A. Scope and Application of Order No. 871
B. APA and NGA Requirements
C. Commission Policy on Exercise of Eminent Domain Pending Rehearing
III. Regulatory Requirements
A. Information Collection Statement
B. Environmental Analysis
C. Regulatory Flexibility Act
D. Document Availability
E. Effective Date

1. On June 9, 2020, the Federal Energy Regulatory Commission Commission issued in Order No. 871 a final rule that precludes the issuance of authorizations to proceed with construction activities with respect to a Natural Gas Act NGA
section 3 1 authorization or section 7c 2
certificate order until the Commission acts on the merits of any timely-filed request for rehearing or until the deadline for filing a timely request for rehearing has passed with no such request being filed.3 On July 9, 2020, the Interstate Natural Gas Association of America INGAA requested clarification or, in the alternative, rehearing, and Kinder Morgan, Inc.
Natural Gas Entities 4 Kinder Morgan 1 15

U.S.C. 717b.
2 15 U.S.C. 717fc.
3 Limiting Authorizations to Proceed with Construction Activities Pending Rehearing, Order No. 871, 85 FR 40113 July 6, 2020, 171 FERC
61,201 2020 Order No. 871 or final rule.
4 The Kinder Morgan Gas Entities include:
Natural Gas Pipeline Company of America LLC;
Tennessee Gas Pipeline Company, L.L.C.; Southern Natural Gas Company, L.L.C.; Colorado Interstate Gas Company, L.L.C.; Wyoming Interstate Company, L.L.C.; El Paso Natural Gas Company, L.L.C.; Mojave Pipeline Company, L.L.C.; Bear Creek Storage Company, L.L.C.; Cheyenne Plains Gas Pipeline Company, LLC; Elba Express
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and TC Energy Corporation TC Energy requested rehearing. On January 26, 2021, the Commission issued Order No.
871A, which offered interested parties an opportunity to provide further briefing on the issues raised in INGAAs, Kinder Morgans, and TC
Energys requests for rehearing, and set February 16, 2021, and March 3, 2021, as the initial brief and reply brief deadlines, respectively.5
2. Pursuant to Allegheny Defense Project v. FERC,6 the rehearing requests filed in this proceeding may be deemed denied by operation of law. However, as permitted by section 19a of the NGA,7

we are modifying the discussion in Order No. 871 and granting, in part, INGAAs request for clarification, setting aside and revising Order No. 871
to resolve, in part, INGAAs, Kinder Morgans, and TC Energys requests for rehearing, and otherwise continuing to reach the same result as Order No. 871.
As discussed further below, the Commission also adopts a policy of presumptively staying its NGA section 7c certificate orders during the 30-day rehearing period and pending Commission resolution of any timely requests for rehearing filed by landowners, subject to a time limitation and certain exceptions.8

Company, L.L.C.; Kinder Morgan Louisiana Pipeline LLC; Southern LNG Company, L.L.C.; and TransColorado Gas Transmission Company LLC.
5 Limiting Authorizations to Proceed with Construction Activities Pending Rehearing, Order No. 871A, 86 FR 7643 Feb. 1, 2021, 174 FERC
61,050 2021 Order No. 871A.
6 964 F.3d 1 D.C. Cir. 2020 en banc Allegheny.
7 15 U.S.C. 717ra Until the record in a proceeding shall have been filed in a court of appeals, as provided in subsection b, the Commission may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it under the provisions of this chapter..

I. Background
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3. In Order No. 871, the Commission explained that historically, due to the complex nature of the matters raised on rehearing of orders granting authorizations under NGA sections 3
and 7, the Commission had often issued an order known as a tolling order by the thirtieth day following the filing of a rehearing request, allowing itself additional time to provide thoughtful, 8 See
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discussion infra Part II.C.

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