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Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations a rehearing request is deemed denied by operation of law, regardless of whether the Commission signals its intent to issue a subsequent order addressing the arguments raised on rehearing. They assert that authorization to proceed with construction should be allowed following a deemed denial because at that point any party aggrieved by a Commission order would be free to seek judicial review and, if necessary, request injunctive relief from the court.49 Alternatively, INGAA and TC
Energy suggest that construction authorizations should be allowed 30
days after a rehearing request is deemed denied i.e., roughly 60 days after filing the rehearing request.50 According to INGAA and TC Energy, this approach would provide the Commission time to issue an order addressing the merits of the rehearing request, aggrieved parties time to file a petition for review and, if necessary, seek a judicial stay before any construction, and pipeline developers and customers with certainty regarding construction timelines.51
25. We clarify that construction may be permitted to proceed once the Commission issues its further order or the reviewing court otherwise obtains exclusive jurisdiction at the time the record is filed with it, as this signifies the completion of agency review. While the court may exercise judicial superintendence 52 once rehearing is deemed denied, the Commission retains jurisdiction to modify or set aside, in whole or in part the certificate order for which rehearing has been sought until the record on review is filed with the court of appeals. Accordingly, while parties may seek injunctive relief from the court at that stage, as the Commission explained in Order No.
871, the purpose of the rule is to preclude construction during the period the Commission may act on rehearing.53
49 See, e.g., INGAA Initial Brief at 12; Enbridge Initial Brief at 1416; BHE Pipeline Initial Brief at 11; Gas & Oil WV Initial Brief at 7; Tallgrass Initial Brief at 1012; see also INGAA Reply Brief at 8
11; Enbridge Reply Brief at 1417, 2022.
50 See INGAA Initial Brief at 2830; TC Energy Initial Brief at 11.
51 See INGAA Initial Brief at 2830; TC Energy Initial Brief at 1112.
52 Allegheny, 964 F.3d at 17.
53 If the Commission, in acting on rehearing of a section 3 or section 7c authorization order, changes the outcome of the underlying authorization order, such that further rehearing lies, the Commission would continue to apply Order No.
871 to preclude construction if a qualifying rehearing request is filed. See Smith Lake Improvement & Stakeholders Assn v. FERC, 809
F.3d 55, 5657 D.C. Cir. 2015. However, if the Commission issues a substantive order on rehearing that does not change the outcome of the underlying authorization order, subsequent requests for rehearing or clarification of the previously issued rehearing order will not re-trigger the provisions of
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As a result, we find that it is appropriate to generally refrain from issuing an authorization to proceed with construction until the Commission has completed its decisionmaking process.
26. However, upon consideration of the comments filed in response to Order No. 871A, we believe it is appropriate to provide a date certain by which the prohibition on issuing an authorization to proceed with construction would terminate. In particular, we modify our prior order to provide that the rules restriction on issuing construction authorizations will expire 90 days following the date that a request for rehearing may be deemed to have been denied if the request is still pending before the Commission. We believe that this strikes an appropriate balance that allows aggrieved parties time to access the courts while providing project developers with a predictable time period after which construction authorizations may be permitted in the event a rehearing request remains pending before the Commission.
27. Fourth, as described by the Allegheny court, the Commission could grant rehearing for the express purpose of revisiting and substantively reconsidering a prior decision, where it needed additional time to allow for supplemental briefing or further hearing processes. 54 Under those circumstances, i.e., where the Commission grants rehearing without issuing a final order, the original authorization would no longer be in effect and the provisions of Order No.
871 would no longer apply since there would be no final order pursuant to which a notice to proceed could be issued.
28. INGAA urges the Commission to set a deadline, not to exceed 60 days from any order granting rehearing for further procedures, to issue a final order on the merits of the rehearing request.55
Order No. 871 to further preclude the issuance of an authorization to proceed with construction. In those rare instances in which the Commission later determines that further procedural steps are necessary in a given case see, e.g., Algonquin Gas Transmission, LLC, 174 FERC 61,126 2021 order establishing briefing, the 90-day period following the date that a qualifying request for rehearing may be deemed denied by operation of law would not be altered or extended.
54 964 F.3d at 16.
55 INGAA Rehearing Request at 45, 2426
providing a predictable and transparent timetable would help project developers, their customers, and end-users of gas plan for construction timetables and avoid unnecessary costs and disruption; see also INGAA Initial Brief at 10, 28. Some commenters advanced similar requests, and generally noted that setting a specific timeframe for action on requests for rehearing and/or requests for authorization to commence construction would be beneficial as it would provide regulatory certainty and transparency.

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Because timelines associated with supplemental briefing or evidentiary submissions may vary based on the complexity of the issues warranting further procedures, we decline to do so and intend to continue to act on requests for rehearing as soon as possible.
29. Finally, INGAA also asks that we revise 157.23 to expressly state that the Commission may waive the applicability of the rule for good cause shown. 56 The Commission has broad authority to waive application of its own regulations and does not find it necessary to revise the rule to incorporate a good cause exception.
30. Consistent with the foregoing discussion, we revise 18 CFR 157.23 to read as follows:
With respect to orders issued pursuant to 15 U.S.C. 717b or 15 U.S.C. 717fc authorizing the construction of new natural gas transportation, export, or import facilities, no authorization to proceed with construction activities will be issued:
a until the time for the filing of a request for rehearing under 15 U.S.C. 717ra has expired with no such request being filed, or b if a timely request for rehearing raising issues reflecting opposition to project construction, operation, or need is filed, until: i The request is no longer pending before the Commission, ii the record of the proceeding is filed with the court of appeals, or iii 90 days has passed after the date that the request for rehearing may be deemed to have been denied under 15 U.S.C. 717ra.57

B. APA and NGA Requirements 1. APA Notice and Comment Requirement 31. Section 553 of the Administrative Procedure Act APA generally requires federal agencies to publish in the Federal Register a notice of proposed rulemaking and to provide interested persons an opportunity to submit written comments on the proposed rule prior to issuing a final rule.58 However, these requirements, commonly referred to as the APAs notice and comment procedures, do not apply to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice. 59
32. Kinder Morgan and INGAA, the latter in the alternative to its request for clarification, argue that, by issuing a final rule without providing the public notice and opportunity to comment, the Commission violated section 553 of the 56 INGAA Rehearing at 5, 2526, and 34. This request was reiterated in some of the briefs filed by natural gas companies. See, e.g., Enbridge Initial Brief at 1112; Enbridge Reply Brief at 10.
57 The italicized text reflects the revisions to 157.23 that we are adopting herein.
58 5 U.S.C. 553.
59 Id. 553b3A.

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