Voglio sapere a riguardo di…

Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations 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. 48
22. As an initial matter, Enbridge and INGAA err to the extent that they suggest the Commission determined that original authorization orders necessarily would be vacated or revoked by an interlocutory order granting rehearing for further procedures, as described by the Allegheny court. We merely stated, in response to a prior request for clarification from INGAA, that under the specified circumstances contemplated by the Allegheny court, 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. 49 We agree with INGAA that a case-by-case approach is necessary for the Commission to determine the effect that a grant of rehearing for further procedures would have on the underlying authorization. In the order granting rehearing for further procedures, we will indicate the orders effect on the underlying authorization.
23. The Commission previously declined a request to establish a deadline for issuing a final merits order following a grant of rehearing for further procedures.50 As we stated at the time, timelines associated with supplemental briefing or evidentiary submissions may vary based on the complexity of the issues warranting further procedures.51
Thus, we continue to find that a caseby-case approach is warranted in the event that the Commission grants rehearing because it needs additional time to allow for supplemental briefing or further hearing processes. 52
4. Additional Clarifications to Regulation Text 24. INGAA argues that 157.23b should be revised to add the phrase the earliest of the time at which, as italicized below:

jbell on DSKJLSW7X2PROD with RULES

If a timely request for rehearing raising issues reflecting opposition to project construction, operation, or need is filed, until the earliest of the time at which: 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 deemed to have been denied under 15 U.S.C. 717ra.53
48 Id.
49 Id.
50 Id.

P 28.

51 Id.
52 Allegheny,
964 F.3d at 16.
53 INGAA Rehearing at 24.

VerDate Sep<11>2014

16:05 Aug 05, 2021

Jkt 253001

INGAA contends that this addition would clarify and better reflect what it understands to be the Commissions intent, as reflected by the Commissions use of the conjunction or and references throughout Order No. 871B
that suggest that the restriction on issuance of construction authorizations will apply until the earliest of the three triggering events contemplated by the rule.54 If the suggested change is not adopted, INGAA fears that project opponents may argue that no authorization to proceed with construction should be issued until the occurrence of the later of the three triggering events comes to pass.55
25. INGAA is correct in its interpretation that a construction authorization may be issued upon the earliest occurrence of the three triggering events enumerated in the regulation. However, we decline to further revise the regulatory language.
As currently drafted, the rule uses the conjunction or which serves to distinguish the three scenarios as alternatives and signals that a construction authorization may issue once the earliest of the three events occurs.
26. In addition, INGAA renews its request that the Commission revise 157.23 to expressly state that the rule may be waived for good cause shown.56
INGAA urges the Commission to consider cases finding in other contexts that agencies authority to waive their own rules is not unlimited and that agencies are bound by, and courts must enforce, the unambiguous terms of regulations.57
27. The Commission previously declined to adopt INGAAs suggestion to incorporate into the rule an explicit waiver provision, finding it retains authority to waive its own regulations.58
INGAA raises no new arguments that cause us to reconsider that decision.
54 Id.

at 2425.
at 25.
56 Id. at 2829.
57 Id. at 28 citing Reuters Ltd. v. FCC, 781 F.2d 946, 950 D.C. Cir. 1986 finding that FCC failed to follow its rules and regulations in resolving dispute between competing applicants for microwave radio station licenses; Erie Boulevard Hydropower, LP v. FERC, 878 F.3d 258, 269 D.C.
Cir. 2017 stating that an agency action fails to comply with its regulations, that action may be set aside as arbitrary and capricious and that an agency decision that departs from agency precedent without explanation is similarly arbitrary and capricious. citations omitted; Kisor v. Wilkie, 139 S. Ct. 2400, 2415 2019 explaining that when there is only one reasonable construction of a regulation, Auer deference is not appropriate and a court must not defer to any other reading of the regulation; 5 U.S.C. 7062.
58 Order No. 871B, 175 FERC 61,098 at P 29.
55 Id.

PO 00000

Frm 00007

Fmt 4700

Sfmt 4700

43081

5. Effective Date of Construction Authorization Issuances 28. Enbridge urges the Commission to clarify that its staff may issue authorizations to proceed with construction prior to the deadline established by the rule so long as the authorization does not become effective until the occurrence of the earliest of the three triggering events enumerated in the rule i.e., the rehearing request is no longer pending before the Commission, the record of the proceeding is filed with the court of appeals, or 90 days after the date that the request may be deemed denied.59 Allowing project developers to obtain advance confirmation from Commission staff that all preconstruction conditions have been satisfied would, according to Enbridge, help project developers set and meet construction milestones, lessen the chance of additional regulatory delays, and would reflect the Commissions articulated goal of achieving an appropriate balance of interests.60
29. The Commission denies the requested clarification. We believe that, in practice, a conditional construction authorization of the nature Enbridge suggests has the potential to create uncertainty for project developers, stakeholders, and Commission staff alike as to the effective date of the authorization, which outweighs the purported benefits that Enbridge identifies. Moreover, the advance notice contemplated by Enbridge fails to account for a change in status of a project developers compliance with the terms of its section 7 certificate or section 3 authorization that could arise in the interim. We believe that a cleaner approach is for the Commission to issue authorizations to proceed with construction once all requisite conditions have been satisfied and the rules prohibition on such issuance has elapsed.
6. Procedural Nature of Rule 30. INGAA urges the Commission to reconsider its determination that Order No. 871B is a procedural rule not subject to the Administrative Procedure Acts APA notice and comment procedures.61 Where a project developer has already fulfilled the necessary prerequisites for beginning construction, INGAA argues that the Commission failed to explain how it has unfettered discretion to refuse to allow construction of facilities it has already found required by the public 59 Enbridge
Rehearing at 1112.
at 12.
61 See INGAA Rehearing at 2528.
60 Id.

E:FRFM06AUR1.SGM

06AUR1