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Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations
information collection requirements.
The Commission is therefore not required to submit to OMB for review this order addressing arguments raised on rehearing and clarification, and setting aside, in part, prior order.
B. Environmental Analysis 53. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant effect on the human environment.107 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment, including the promulgation of rules that are clarifying, corrective, or procedural, or that do not substantially change the effect of legislation or the regulations being amended.108 Because the rule promulgated by Order No. 871, and revised herein, is procedural in nature, preparation of an Environmental Assessment or an Environmental Impact Statement is not required.
C. Regulatory Flexibility Act 54. The Regulatory Flexibility Act of 1980 RFA 109 generally requires a description and analysis of rules that will have significant economic impact on a substantial number of small entities. The Commission determined that Order No. 871 was exempt from the requirements of the RFA.110 This order addressing arguments raised on rehearing and clarification, and setting aside, in part, prior order does not disturb the Commissions finding.
D. Document Availability 55. 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.
56. 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 107 Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, 52 FR 47897, 41 FERC 61,284 1987.
108 18 CFR 380.4a2ii.
109 5 U.S.C. 601612.
110 Order No. 871, 171 FERC 61,201 at P 16.

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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.
57. 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.
E. Effective Date 58. This rule addressing arguments raised on rehearing and clarification, and setting aside, in part, prior order is effective June 14, 2021.
List of Subjects in 18 CFR Part 157
Administrative practice and procedure, Natural gas, Reporting and recordkeeping requirements.
By the Commission.
Commissioner Chatterjee is not participating.
Commissioner Danly is dissenting with a separate statement attached.
Commissioner Christie is concurring with a separate statement attached.
Issued: May 4, 2021.
Kimberly D. Bose, Secretary.

In consideration of the foregoing, the Commission is amending part 157, chapter I, title 18, Code of Federal Regulations, as follows:
PART 157APPLICATIONS FOR
CERTIFICATES OF PUBLIC
CONVENIENCE AND NECESSITY AND
FOR ORDERS PERMITTING AND
APPROVING ABANDONMENT UNDER
SECTION 7 OF THE NATURAL GAS
ACT
1. The authority citation for Part 157
continues to read as follows:

Authority: 15 U.S.C. 717717w, 3301
3432; 42 U.S.C. 71017352.

2. Amend 157.23 by revising paragraph b to read as follows:

157.23 Authorizations to Proceed with Construction Activities.

b If a timely request for rehearing raising issues reflecting opposition to project construction, operation, or need is filed, until:
1 The request is no longer pending before the Commission;
2 The record of the proceeding is filed with the court of appeals; or 3 90 days has passed after the date that the request for rehearing may be
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deemed to have been denied under 15
U.S.C. 717ra.
The Following Will Not Appear in the Code of Federal Regulations Department of Energy Federal Energy Regulatory Commission Limiting Authorizations To Proceed With Construction Activities Pending Rehearing DANLY, Commissioner, dissenting:
1. I dissent in full from todays order modifying and expanding Order No.
871.1 As an initial matter, I write to state that I would grant rehearing on all matters and repeal the rule.
2. The Commission promulgated Order No. 871 on June 9, 2020, in advance of the decision in Allegheny Defense Project v. FERC,2 the en banc proceeding before the U.S Court of Appeals for the District of Columbia Circuit D.C. Circuit that addressed longstanding objections to the Commissions practice of relying upon tolling orders to delay answering requests for rehearing.3 In recognition of the injustice of the Commissions practice of tolling rehearing requests indefinitely, and that practices consequent denial of an opportunity for litigants to perfect their appeals, the Commission issued Order No. 871 in an attempt to balance the interests of potential appellants with those of pipelines by delaying the issuance of notices to proceed with construction.4
On June 30, 2020, the D.C. Circuit issued its en banc opinion in Allegheny in which it found that the Commission was prohibited from indefinitely tolling requests for rehearing and finding that parties were entitled to petition for review once a rehearing request had been denied by operation of law.5 The D.C. Circuit, having rightly imposed the discipline the Commission was unwilling or unable to impose upon itself, obviated the pressing need animating the Commissions decision to delay the issuance of notices to proceed.
In light of the D.C. Circuits reenforcement of the statutory scheme governing rehearing and appeal, the 1 See Limiting Authorizations to Proceed with Construction Activities Pending Rehearing, Order No. 871, 85 FR 40,113 July 6, 2020, 171 FERC
61,201 2020 Order No. 871.
2 964 F.3d 1 D.C. Cir. 2020 en banc Allegheny.
3 See Order No. 871, 171 FERC 61,201 Glick, Commr, concurring in part and dissenting in part at P 1 It is readily apparent that todays final rule attempts to address some of the concerns raised in the Allegheny Defense Project v. FERC proceeding before the U.S. Court of Appeals for the District of Columbia Circuit D.C. Circuit..
4 See id. P 11.
5 See Allegheny, 964 F.3d at 1819.

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