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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations
convenience and necessity.62 INGAA
also characterizes as misleading the 85day figurecited in Order No. 871B
to illustrate that over a five year period, on average, 85 days elapsed between issuance of an initial order and issuance of an authorization to proceed with constructionfor it fails to account for project differences and assumes that developers rely on average figures when planning project construction and inservice deadlines.63 According to INGAA, the rule dramatically changes the timeline for when a project can be placed in service and implicates the investment-backed expectations of all project developers. 64
31. The Commission previously responded to concerns that the rule adopted in Order No. 871 was not a procedural rule and thus should have been issued following the APAs notice and comment requirements.65 As we explained, the APAs notice and comment procedures were not required because the rule neither substantially alters the rights or interests of regulated natural gas companies nor changes the agencys substantive outcomes.66 We also explained that the timing of when to permit construction to begin is a matter entirely within the Commissions existing discretion and not a matter of right.67 INGAAs arguments on rehearing do not demonstrate an error in the Commissions analysis.68
32. Order No. 871 is premised on the Commissions desire to balance its commitment to expeditiously respond to parties concerns in comprehensive orders on rehearing and the serious concerns posed by the possibility of construction proceeding prior to the completion of agency review.69 In Order No. 871B, we cited the average 85-day span between an initial authorizing order and issuance of a construction 62 Id.

at 26.
id. at 2627; Order No. 871B, 175 FERC
61,098 at P 37.
64 INGAA Rehearing at 27.
65 See Order No. 871B, 175 FERC 61,098 at PP
3539.
66 Id. at P 35 citing See Am. Hosp. Assn v.
Bowen, 834 F.2d 1037, 1047 D.C. Cir. 1987.
67 Id. explaining that nothing in the NGA or the Commissions regulations, other than the rule adopted in Order No. 871, addresses the timing of authorizations to commence construction or prevents the Commission from acting on rehearing prior to issuing an authorization to proceed with construction.
68 See, e.g., Batterton v. Marshall, 648 F.2d 694, 707 D.C. Cir. 1980 A useful articulation of the rule of agency organization, procedure, or practice exemptions critical feature is that it covers agency actions that do not themselves alter the rights or interests of parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agency..
69 Order No. 871, 171 FERC 61,201 at P 11.

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authorization only to illustrate that in many cases construction cannot begin immediately upon issuance of an order authorizing new facilities under NGA
sections 3 or 7.70
B. Policy of Presumptively Staying Section 7c Certificate Orders 33. In Order No. 871B, the Commission announced a new policy of presumptively staying an NGA section 7c certificate order during the 30-day period for seeking rehearing and pending Commission resolution of any timely requests for rehearing filed by a landowner, until the earlier of the date on which the Commission 1 issues a substantive order on rehearing or otherwise indicates that the Commission will not take further action, or 2 90 days following the date that a request for rehearing may be deemed to have been denied under NGA section 19a. We explained that this policy will not apply where the pipeline developer has, at the time of the certificate order, already acquired all necessary property interests or where no landowner protested the section 7 application. In addition, we explained that the stay will automatically lift following the close of the 30-day period for seeking rehearing if no landowner files a timely request for rehearing of the certificate order. As we explained, this policy balances the competing interests at stake, including the project developers interest in proceeding with construction when it has obtained all necessary permits, and a project opponents interest in being able to challenge the Commissions ultimate decision in a timely manner.
1. Policy Does Not Violate NGA or APA
34. INGAA and Enbridge argue that the stay policy is unlawful, under the NGA and the APA, because it seeks to achieve an objectiveconditioning a certificate holders eminent domain authoritythat is directly prohibited by statute through indirect means.71
INGAA and Enbridge contend that because the Commission has no authority to deny or restrict certificate holders from exercising the power of eminent domain, the Commissions new policy of presumptively staying its section 7 certificate orders is an unlawful workaround of a statutory prohibition and improperly limits a certificate holders statutorily conferred eminent domain authority.72
70 See
Order No. 871B, 175 FERC 61,098 at P

37.
71 INGAA Rehearing at 2931; Enbridge Rehearing at 1921.
72 See INGAA Rehearing at 2930 citing Civil Aeronautics Bd. v. Delta Air Lines, Inc., 367 U.S.
316, 328 1961; Contl Air Lines, Inc. v. CAB, 522

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35. INGAA and Enbridge further contend that the stay policy violates section 19c of the NGA, which states that the filing of a rehearing request shall not, unless specifically ordered by the Commission, operate as a stay of the Commissions order. 73 INGAA
maintains that the Commission, by announcing in Order No. 871B a general policy of presumptively staying certificate orders pending rehearing, acted in general, rather than with the specificity that NGA section 19c demands.74 INGAA further asserts that the policy is unlawful because it will result in the Commission staying its orders before either a rehearing request has been filed or a stay has been sought, an outcome not contemplated by the NGA.75 Finally, INGAA takes issue with the Commissions position that its authority to stay a certificate order is found in the APA, arguing that section 705 of that act authorizes the Commission to postpone the effective date of its actions only pending judicial review, and that this authority is inapplicable prior to the filing of a request for rehearing and while such request is pending before the Commission.76
36. As explained in Order No. 871B, NGA section 16 gives the Commission an independent basis for granting stays of a certificate order.77 Specifically, section 16 provides that the Commission shall have the power to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions F.2d 107, 115 D.C. Cir. 1974; Enbridge Rehearing at 1921.
73 INGAA Rehearing at 31 quoting 15 U.S.C.
717rc; see Enbridge Rehearing at 1619.
74 INGAA Rehearing at 31. INGAA notes that the word specific means of, relating to, or designating a particular . . . thing and that if the Commission wants to grant a stay, it must do so based on the particular facts of a particular case. Id.
at 32.
75 Id.
76 Id. at 33 citing 5 U.S.C. 705.
77 15 U.S.C. 717o; see Pub. Util. Dist. No. 1 of Okanogan Cty., Wash., 162 FERC 61,040, at P 13
2018 Okanogan PUD addressing analogous provision of the Federal Power Act FPA citing 16 U.S.C. 825h; Kings River Conservation Dist., 30
FERC 61,151, at 61,320 1985 The Commissions authority to issue a stay of a license order is derived primarily from Section 309 of the FPA; Keating v. FERC, 569 F.3d 427, 429 D.C.
Cir. 2009 noting that FERC has stayed the commencement of construction deadline pursuant to section 309 of the FPA. The courts have held that the NGA and FPA should be interpreted consistently. See Envtl Action v. FERC, 996 F.2d 401, 410 D.C. Cir. 1993; Tenn. Gas Pipeline Co.
v. FERC, 860 F.2d 446, 454 D.C. Cir. 1988; see also Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577 n.7
1981.

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