oral argument scheduled for march 22, … v. st. francis xavier parochial sch., 117 f.3d 621 (d.c....

ORAL ARGUMENT SCHEDULED FOR MARCH 22, 2018

In the United States Court of Appealsfor the District of Columbia Circuit

_______________

No. 17-5084 _______________

DELAWARE RIVERKEEPER NETWORK, ET AL.Plaintiffs/Appellants,

V.

FEDERAL ENERGY REGULATORY COMMISSION, ET AL. Defendants/Appellees.

_______________

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA,

Hon. Tanya S. Chutkan, District Court No. 16-cv-416 _______________

BRIEF FOR DEFENDANT/APPELLEE FEDERAL ENERGY REGULATORY COMMISSION

_______________

James P. Danly General Counsel

Robert H. Solomon Solicitor

Ross R. Fulton Attorney

For Respondent Federal Energy Regulatory Commission

Final Brief: February 13, 2018 Washington, D.C. 20426

CIRCUIT RULE 28(a)(1) CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. Parties:

To counsel’s knowledge, except for the following, all parties, intervenors,

and amici appearing before the District Court and in this Court are listed in

Plaintiffs-Appellants’ opening brief:

• Appearing in the District Court in their official capacity asCommissioners of the Federal Energy Regulatory Commission: NormanC. Bay, Tony Clark, Cheryl LaFleur, and Colette Honorable were nameddefendants in the District Court. Only Commissioner LaFleur remains aFERC Commissioner. Since the Commission’s filing of its initialresponse brief, Chairman Kevin J. McIntyre and Commissioner RichardGlick have been sworn into office. Per Federal Rule of AppellateProcedure 43(c)(3), current Commissioners McIntyre, Glick, NeilChatterjee and Robert F. Powelson should be substituted.

• United States of America

• Interstate Natural Gas Association of America

• Clean Air Council.

B. Rulings Under Review:

Delaware Riverkeeper Network v. FERC, 243 F. Supp. 3d 141 (D.D.C.

2017), ECF No. 29, JA 79, granting Defendants-Appellees’ Motions to Dismiss

Plaintiffs-Appellants’ complaint for failing to state a claim as a matter of law.

C. Related Cases:

In NO Gas Pipeline v. FERC, 756 F.3d 764 (D.C. Cir. 2014), this Circuit

distinguished between claims of actual and structural bias against the Commission.

ii

A party asserting bias against the Commission’s consideration of an individual

pipeline application must abide by the Natural Gas Act’s exclusive review

provision, while a party asserting a structural bias claim against the Commission

under the 1986 Omnibus Budget Reconciliation Act must bring such a claim in

federal district court. Id. at 770.

The Commission’s initial response brief noted that the Commission is

currently considering the PennEast Pipeline Company’s application for a certificate

of public convenience and necessity – the focus of Delaware Riverkeeper’s

complaint in the District Court. See PennEast Pipeline Co., FERC Docket No.

CP15-558. Since the Commission initial response brief was filed on January 19,

2018, the Commission granted PennEast a conditional certificate of public

convenience and necessity for the project. Three FERC Commissioners attached

separate statements, one concurring and two dissenting. Requests for rehearing of

that certificate are pending before the Commission.

/s/ Ross R. Fulton Ross R. Fulton Attorney

Final Brief: February 13, 2018

TABLE OF CONTENTS

PAGE

STATEMENT OF THE ISSUES..........................................................................1 STATUTORY AND REGULATORY PROVISIONS ........................................3 STATEMENT OF THE FACTS ..........................................................................3 I. BACKGROUND ..............................................................................3 A. The Commission ....................................................................3 B. The Natural Gas Act ..............................................................4 C. The Commission’s Statutory Funding Scheme .....................6 D. The PennEast Application ......................................................8 E. The District Court Dismisses Riverkeeper’s Complaint ...............................................................................9 SUMMARY OF ARGUMENT ......................................................................... 12 ARGUMENT…… ............................................................................................. 15 I. STANDARD OF REVIEW .......................................................... 15 II. RIVERKEEPER CANNOT STATE A STRUCTURAL BIAS CLAIM AS A MATTER OF LAW .............................................. 16 A. The Commission Cannot Be Structurally Biased Because Approving A Pipeline Does Not Increase The Agency’s Funding ........................................................ 17 B. Riverkeeper’s Claim Cannot Contradict The Plain Statutory Language ............................................................. 21

ii

TABLE OF CONTENTS

PAGE

C. Riverkeeper’s Allegations Are Too Remote To State A Plausible Structural Bias Claim ............................. 23

D. Riverkeeper’s Complaint Questions The Funding Structure For Other Federal Agencies And Contradicts Federal Policy ..................................................................... 27

E. Riverkeeper Cannot Support A Structural Bias Claim By Asserting The Appearance Of Bias Or Actual Bias ..................................................................... 30

III. RIVERKEEPER HAS FAILED TO SHOW A PROTECTEDLIBERTY OR PROPERTY INTEREST ................................................ 33

A. Section 27 Of The Pennsylvania Constitution Does Not Create An Individual Due Process Property Interest .......... 34

B. Eminent Domain Does Not Give Rise To A Due Process Property Interest, And Riverkeeper Lacks Any Liberty Interest ............................................................ 37

IV. RIVERKEEPER DID NOT BRING, AND CANNOT STATE, ADUE PROCESS CLAIM BASED ON THE COMMISSION’S USEOF TOLLING ORDERS ......................................................................... 40

CONCLUSION…. ............................................................................................. 43

iii

TABLE OF AUTHORITIES

COURT CASES: PAGE Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)................................................................................. 25 Alpha Epsilon Phi Tau Chapter House Ass’n v. City of Berkeley, 114 F.3d 840 (9th Cir. 1997) ................................................................... 20 Ashcroft v. Iqbal, 556 U.S. 662 (2009)........................................................................... 15, 16 Atherton v. D.C. Office of Mayor, 567 F.3d 672 (D.C. Cir. 2009) ................................................................. 15 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)................................................................................. 15 Bd. of Regents of State Colleges v. Roth, 408 U.S. 564 (1972)................................................................................. 34 Bennett v. Islamic Republic of Iran 618 F.3d 19 (D.C. Cir. 2010) ................................................................... 40 Browning v. Clifton, 292 F.3d 235 (D.C. Cir. 2002) ........................................................... 16, 23 Brandon v. D.C. Bd. of Parole, 823 F.2d 644 (D.C. Cir. 1987) ................................................................. 39 *Cal. Co. v. FPC, 411 F.2d 720 (D.C. Cir. 1969) ........................................................... 41, 42 Caperton v. A.T. Massey Coal Co., 556 U.S. 886 (2001)................................................................................. 26 __________________

*Cases chiefly relied upon are marked with an asterisk.

iv


COURT CASES: PAGE City of Glendale v. FERC, No. 03-1261, 2004 WL 180270 (D.C. Cir. Jan. 22, 2004) ...................... 41 College Sav. Bank v. Fla. Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666 (1999)............................................................................ 36-37 Davidson v. Cannon, 474 U.S. 334 (1986)................................................................................. 38 D.C. Fed’n of Civic Ass’ns v. Volpe, 459 F.2d 1231 (D.C. Cir. 1971) ............................................................... 31 *Del. Riverkeeper Network v. FERC, 243 F. Supp. 3d 141 (D.D.C. 2017) ................................... 3, 5, 6, 9, 10-12, 16-26, 28, 30-41 Del. Riverkeeper Network v. FERC, 857 F.3d 388 (D.C. Cir. 2017) ....................................................................6 *Doolin Sec. Sav. Bank v. FDIC, 53 F.3d 1395 (4th Cir. 1995) ............................... 17, 18, 20, 25, 26, 28, 29 Dugan v. Ohio, 277 U.S. 61 (1928)................................................................................... 18 Earle v. Dist. of Columbia, 707 F.3d 299 (D.C. Cir. 2012) ................................................................. 16 Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291 (9th Cir. 2003) ................................................................. 30 EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621 (D.C. Cir. 1997) ................................................................. 16 Emera Me. v. FERC, 854 F.3d 9 (D.C. Cir. 2017) ..................................................................... 42

v


COURT CASES: PAGE Esso Standard Oil Co. v. Cotto, 389 F.3d 212 (1st Cir. 2004).................................................................... 30 FERC v. Elec. Power Supply Ass’n, 136 S. Ct. 760 (2016) ............................................................................... 32 Gen. Am. Oil Co. of Tex. v. FPC, 409 F.2d 597 (5th Cir. 1969) ............................................................. 41, 42 Gen. Elec. Co. v. Jackson, 610 F.3d 110 (D.C. Cir. 2010) ................................................................. 34 Gibson v. Berryhill, 411 U.S. 564 (1973)................................................................................. 17 Great Lakes Gas Transmission Ltd. P’ship v. FERC, 985 F.2d 426 (D.C. Cir. 1993) ................................................................. 27 Hammond v. Baldwin, 86 F.2d 172 (6th Cir. 1989) ..................................................................... 25 In re: Del. Riverkeeper Network, No. 15-1052 (D.C. Cir. Mar. 19, 2015) ................................................... 43 In re Murchinson, 349 U.S. 133 (1951)................................................................................. 31 Kaempe v. Myers, 367 F.3d 958 (D.C. Cir. 2004) ................................................................. 16 *Kokajko v. FERC, 837 F.2d 524 (1st Cir. 1988).............................................................. 41, 42 Mathews v. Eldridge, 424 U.S. 319 (1976)................................................................................. 34

vi


COURT CASES: PAGE Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978) ..................................................................................... 36 Midcoast Interstate Transmission, Inc. v. FERC, 198 F.3d 960 (D.C. Cir. 2000) ................................................................. 37 Minisink Residents for Envtl. Pres. & Safety v. FERC, 762 F.3d 97 (D.C. Cir. 2014) .................................................... 4, 23-24, 27 Muir v. Navy Fed. Credit Union, 529 F.3d 1100 (D.C. Cir. 2008) ............................................................... 15 Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301 (D.C. Cir. 2015) ............................................................. 4, 6 *NO Gas Pipeline v. FERC, 756 F.3d 764 (D.C. Cir. 2014) ..................................................... 27, 33, 42 N. Nat. Gas Co. v. State Corp. Comm’n of Kan., 372 U.S. 84 (1963).................................................................................. 3-4 O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773 (1980)................................................................................. 36 Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591 (2015) ................................................................................4 Pa. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911 (Pa. 2017) .......................................................................... 35 Presley v. City of Charlottesville, 464 F.3d 480 (4th Cir. 2006) ................................................................... 38 Roberts v. United States, 741 F.3d 152 (D.C. Cir 2014) .................................................................. 36

vii


COURT CASES: PAGE Robinson Twp. v. Commonwealth, 83 A.3d 564 (Pa. 2013) ............................................................................ 35 Schneidewind v. ANR Pipeline, 485 U.S. 293 (1988)....................................................................................3 Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) ............................................................... 33 Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212 (1989)................................................................................. 28 *Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005)........................................................................... 34, 36 Town of Dedham v. FERC, No. 15-12352, 2015 WL 4274884 (D. Mass. July 15, 2015) .................. 43 Transcontinental Gas Pipe Line Co., LLC v. Permanent Easements for 5.67 Acres, No. 17-544, 2017 WL 3412374 (M.D. Pa. Aug. 9, 2017) ....................... 38 Tumey v. Ohio, 273 U.S. 510 (1927)........................................................................... 17, 31 United Church of the Med. Ctr. v. Med. Ctr. Comm’n, 689 F.2d 693 (7th Cir. 1982) ................................................................... 21 *United States v. Benitez-Villafuerte, 186 F.3d 651 (5th Cir. 1999) ............................................................. 18, 25 United States v. James Daniel Good Real Prop., 510 U.S. 43 (1993)................................................................................... 35 Van Harken v. City of Chicago, 103 F.3d 1346 (7th Cir. 1997) ................................................................. 25

viii


COURT CASES: PAGE

Ward v. Village of Monroeville, 409 U.S. 57 (1972)....................................................................... 17, 18, 26

Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985)................................................................................. 38

ADMINISTRATIVE CASES:

Annual Charges Under the Omnibus Budget Reconciliation Act of 1986, Order No. 472, FERC Stats. & Regs. ¶ 30,746, 52 Fed. Reg. 21,263, clarified, Order No. 472-A, FERC Stats. & Regs. ¶ 30,750, 52 Fed. Reg. 23,650, on reh’g, Order No. 472-B, FERC Stats. & Regs. ¶ 30,767, 52 Fed. Reg. 36,013 (1987), on reh’g, Order No. 472-C, 42 FERC ¶ 61,013 (1988) ......................................................... 7, 18-19, 23

Certification of New Interstate Nat. Gas Pipeline Facilities, 88 FERC ¶ 61,227 (1999), clarified, 90 FERC ¶ 61,128 (2000), clarified, 92 FERC ¶ 61,094 (2000) ...........................................................................5

Hamilton v. El Paso Nat. Gas Co., 141 FERC ¶ 61,229 (2012) ...................................................................... 39

Jordan Cove Energy Project, L.P., 154 FERC ¶ 61,190 (2016) ...................................................................... 26

Mountain Valley Pipeline, LLC, 161 FERC ¶ 61,043 (2017) ...................................................................... 37

Tex. E. Transmission, LP, 141 FERC ¶ 61,043 (2012) ...................................................................... 28

ix


STATUTES: PAGE

Anti-Deficiency Act

31 U.S.C. § 1341(a)(1)(A) ....................................................................... 19

Department of Energy Organization Act

42 U.S.C. § 7171(a) ....................................................................................4

42 U.S.C. § 7171(b) ............................................................................. 4, 26

42 U.S.C. § 7171(j) .............................................................................. 6, 18

Federal Power Act

16 U.S.C. § 825l(a) .................................................................................. 42

Independent Offices Appropriations Act

31 U.S.C. § 9701 ...................................................................................... 28

Natural Gas Act

15 U.S.C. § 717(b)-(c) ................................................................................4

15 U.S.C. § 717f(c) .................................................................................. 39

15 U.S.C. § 717f(e) .......................................................................... 4, 6, 24

15 U.S.C. § 717f(h).................................................................................. 37

15 U.S.C. § 717r(a)-(c) ................................................................ 40, 42, 43

x


STATUTES: PAGE

Omnibus Budget Reconciliation Act of 1986

42 U.S.C. § 7178(a)(1) .................................................. 6, 7, 18, 19, 28, 30

42 U.S.C. § 7178(b) ....................................................................................6

42 U.S.C. § 7178(e) ................................................................... 7, 9, 19, 20

42 U.S.C. § 7178(f).................................................................. 7, 19, 22, 30


42 U.S.C. § 2214 ...................................................................................... 29


47 U.S.C. § 159(a) ................................................................................... 29

REGULATIONS:

18 C.F.R. § 11.1 ..........................................................................................7

18 C.F.R. §§ 157.1-157.22 .........................................................................5

18 C.F.R. § 381.207 ................................................................................... 8

18 C.F.R. § 381.401-03 ............................................................................. 8

18 C.F.R. § 381.501-05 ............................................................................. 8

18 C.F.R. § 382.201-03 ....................................................................... 7, 19

xi

GLOSSARY

Budget Act The Omnibus Budget Reconciliation Act of 1986, 42 U.S.C. § 7178

Commission or FERC Federal Energy Regulatory Commission

Del. Riverkeeper Delaware Riverkeeper Network v. FERC, 243 F. Supp. 3d 141 (D.D.C. 2017), ECF No. 29, JA 79

FDIC Federal Deposit Insurance Corporation

JA Joint Appendix

NEPA National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq.

P Paragraph in a Commission order

PennEast PennEast Pipeline Company, LLC

Riverkeeper Plaintiffs-Appellants Delaware Riverkeeper Network and Maya Van Rossum

In the United States Court of Appeals

for the District of Columbia Circuit _______________

No. 17-5084

_______________

DELAWARE RIVERKEEPER NETWORK, ET AL. Plaintiffs/Appellants,

V.

FEDERAL ENERGY REGULATORY COMMISSION, ET AL. Defendants/Appellees.

_______________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA,

Hon. Tanya S. Chutkan, District Court No. 16-cv-416 _______________

BRIEF FOR DEFENDANT/APPELLEE

FEDERAL ENERGY REGULATORY COMMISSION _______________

STATEMENT OF THE ISSUES

Delaware Riverkeeper Network and Maya Van Rossum (collectively,

Riverkeeper) contend that the Federal Energy Regulatory Commission

(Commission or FERC) recovers the costs of regulating the interstate natural gas

pipeline industry in a biased, constitutionally suspect manner. Specifically, they

assert that the Commission’s recovery of Congressional appropriations through the

collection of user fees from the natural gas pipelines that the agency regulates is

2

facially unconstitutional because it violates the due process rights of Riverkeeper’s

members by making the Commission institutionally biased to approving pipelines.

But, as the District Court correctly held in dismissing Riverkeeper’s

complaint, Riverkeeper cannot demonstrate a federally-protected individual liberty

or property interest. Nor can Riverkeeper prove a prima facie structural bias case

against the Commission as a matter of law – because approving a natural gas

pipeline application does not increase the Commission’s budget.

To even potentially show institutional bias, Riverkeeper must demonstrate

that approving a natural gas pipeline application substantially increases the

Commission’s funding. Yet the plain language of the Omnibus Budget

Reconciliation Act of 1986 and relevant statutes proves otherwise.

Congress sets the Commission’s budget through annual and supplemental

appropriations. The Commission recoups those appropriations by dividing the

agency’s fixed costs among all existing pipelines and other entities regulated by

the Commission. Any over-recovery is returned – assuring that the Commission

cannot increase its funding by approving new pipelines. Approving a natural gas

project simply further divides the Commission’s fixed costs among a larger

number of pipeline companies. As the United States Government stated in support

of the Commission – and as the District Court found – this is similar to how

3

numerous other federal agencies and departments recoup some or all of their

appropriations. The questions presented by Riverkeeper’s appeal are:

1. Whether Riverkeeper can state a plausible claim that the Budget Act

substantially increases the funds available to the Commission such that the statute

provides an unconstitutional temptation to the average Commissioner to approve a

pipeline project; and

2. Whether Riverkeeper’s members can state a plausible federally-

protected individual liberty or property due process interest.

STATUTORY AND REGULATORY PROVISIONS

The pertinent statutes and regulations are contained in the Addendum.

STATEMENT OF THE FACTS I. BACKGROUND

A. The Commission

The Commission is an independent federal agency that, among other

statutory responsibilities, regulates the interstate transmission and wholesale sale

of natural gas. Del. Riverkeeper Network v. FERC, 243 F. Supp. 3d 141, 144

(D.D.C. 2017) (citing 15 U.S.C. § 717f), ECF No. 29, JA 79; see generally

Schneidewind v. ANR Pipeline, 485 U.S. 293, 301 (1988) (Natural Gas Act

“confers upon FERC exclusive jurisdiction over the transportation and sale of

natural gas in interstate commerce”) (citing N. Nat. Gas Co. v. State Corp.

4

Comm’n of Kan., 372 U.S. 84, 91 (1963)). The Commission is composed of up to

five members appointed by the President, with the advice and consent of the U.S.

Senate, with no more than three being members of the same political party. See

Riverkeeper Compl. ¶ 60, ECF No. 1, JA 21; see also 42 U.S.C. § 7171(a)-(b)

(statute establishing the Commission and transferring authority to it).

Commissioners serve for up to five-year terms and have an equal vote. See

Compl. ¶ 61, JA 21; see also 42 U.S.C. § 7171(b)(1).

B. The Natural Gas Act

The Commission’s role in regulating the natural gas industry is largely

defined by the Natural Gas Act. Natural Gas Act sections 1(b) and (c) grant the

Commission jurisdiction over the transportation and wholesale sale of natural gas

in interstate commerce. 15 U.S.C. § 717(b)-(c); see generally Oneok, Inc. v.

Learjet, Inc., 135 S. Ct. 1591, 1596 (2015) (detailing FERC’s jurisdictional

authority under the Act). The Natural Gas Act mandates that the Commission

approve a natural gas project application that is consistent with “‘the public

convenience and necessity.’” Minisink Residents for Envtl. Pres. & Safety v.

FERC, 762 F.3d 97, 101 (D.C. Cir. 2014) (quoting 15 U.S.C. § 717f(e)); see also

Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1307 (D.C.

Cir. 2015) (Congress enacted the Natural Gas Act to encourage the orderly

development of plentiful supplies of natural gas).

5

Pipeline applicants seeking certification from the Commission must comply

with multiple levels of review, beginning with the Commission’s pre-filing

process. See Del. Riverkeeper, 243 F. Supp. 3d at 145 (describing the

Commission’s certification procedure), JA 80-82; see generally 18 C.F.R.

§§ 157.1-157.22. Prospective applicants must engage with FERC staff, federal and

state agencies, tribal authorities, and the public in identifying potential issues and

developing additional information, with the goal of minimizing potential impacts

on landowners and communities before a prospective applicant submits an

application. Del. Riverkeeper, 243 F. Supp. 3d at 145 (quoting 18 C.F.R.

§ 157.21), JA 81; see Certification of New Interstate Nat. Gas Pipeline Facilities,

88 FERC ¶ 61,227, at 61,743 (1999), clarified, 90 FERC ¶ 61,128 (2000),

clarified, 92 FERC ¶ 61,094 (2000) (pre-application process “encourag[es]

applicants to devote more effort before filing to minimize the adverse effects of a

project”).

Upon completion of the pre-filing process, entities proposing potential

interstate natural gas projects must submit formal applications, participate in public

hearings, and comply with the Commission’s public notice and comment process.

See generally 18 C.F.R. §§ 157.1-157.22. The Commission then conducts the

appropriate environmental review under the National Environmental Policy Act

(NEPA), before making a determination on a certificate application, based on an

6

evaluation of the project’s public benefits and adverse effects. See, e.g., Del.

Riverkeeper Network v. FERC, 857 F.3d 388, 394 (D.C. Cir. 2017) (describing the

NEPA environmental review process); Myersville, 783 F.3d at 1309 (describing

the criteria the agency considers in determining whether to issue a natural gas

certificate). The Commission has broad authority to approve or deny the

application, and can attach “‘such reasonable terms and conditions as the public

convenience and necessity may require.’” Del. Riverkeeper, 243 F. Supp. 3d at

145 (quoting 15 U.S.C. § 717f(e)), JA 81; accord Myersville, 783 F.3d at 1307-08.

C. The Commission’s Statutory Funding Scheme

Under the Department of Energy Organization Act, the Commission must

submit an annual budget request to the Office of Management and Budget for

inclusion in the President’s budget submitted to Congress. 42 U.S.C. § 7171(j).

Congress then appropriates the funds it deems necessary for the Commission’s

operations. Id.

In the Omnibus Budget Reconciliation Act of 1986 (Budget Act), Congress

instructed the Commission to reimburse the U.S. Treasury for the funds

appropriated by Congress, by assessing and collecting “fees and annual charges in

any fiscal year in amounts equal to all of the costs incurred by the Commission in

that fiscal year.” 42 U.S.C. § 7178(a)(1); see also id. § 7178(b) (“The fees or

7

annual charges assessed shall be computed on the basis of methods that the

Commission determines, by rule, to be fair and equitable.”).

These fees are deposited into the Treasury’s general fund. See 42 U.S.C.

§ 7178(f) (“all moneys received under this section shall be credited to the general

fund of the Treasury”). The Commission is required to eliminate any under or over

recovery to “true up” the amount to match its fixed costs. See id. § 7178(e) (“The

Commission shall, after the completion of a fiscal year, make such adjustments in

the assessments for such fiscal year as may be necessary to eliminate any

overrecovery or underrecovery of its total costs . . . .”).

Under the Commission’s Order No. 472 rulemaking, adopted in 1987 and

implementing the Budget Act, the Commission assesses fees on pipelines by

dividing the agency’s fixed costs of regulating pipelines among all existing

pipelines, based upon the volume of gas shipped on each pipeline.1 The

Commission similarly recovers annual charges from other sectors of the energy

industry that it regulates. 42 U.S.C. § 7178(a); see 18 C.F.R. § 11.1 (annual

charges under Part I of the Federal Power Act related to hydroelectric licenses);

id. §§ 382.201-03 (annual charges assessed against electric utilities, and oil and gas

1 See Annual Charges Under the Omnibus Budget Reconciliation Act of 1986, Order No. 472, FERC Stats. & Regs. ¶ 30,746, 52 Fed. Reg. 21,263, clarified, Order No. 472-A, FERC Stats. & Regs. ¶ 30,750, 52 Fed. Reg. 23,650, on reh’g, Order No. 472-B, FERC Stats. & Regs. ¶ 30,767, 52 Fed. Reg. 36,013 (1987), on reh’g, Order No. 472-C, 42 FERC ¶ 61,013 (1988); see also 18 C.F.R. § 382.202.

8

pipeline companies); id. § 381.207 (fees under the Natural Gas Act); id.

§§ 381.401-03 (fees under the Natural Gas Policy Act); id. §§ 381.501-05 (fees

applicable to certain matters under Parts II and III of the Federal Power Act and

Public Utility Regulatory Policies Act). Natural Gas Act operations comprise

approximately 20 percent of the Commission’s budget. See FERC Congressional

Budget Requests.2

D. The PennEast Application

Much of Riverkeeper’s complaint focuses upon the PennEast Pipeline

Company’s (PennEast) application pending before the Commission. See FERC

Docket No. CP15-558.3 On September 24, 2015, PennEast filed for a certificate of

public convenience and necessity to construct a 114-mile, 36-inch diameter

pipeline through Pennsylvania and New Jersey. Compl. ¶¶ 87-90, JA 25.

The Commission has not yet acted on PennEast’s certificate request. See

FERC Docket CP15-558. The Commission twice deferred consideration of the

final environmental impact statement for the PennEast project to address additional

environmental information. On September 23, 2016, PennEast proposed 33 route

modifications, based upon comments from landowners and recommended

2 Available at http://www.ferc.gov/about/strat-docs/requests-reports.asp.

3 Docket publicly available on the Commission’s website at https://elibrary.ferc.gov/.

9

mitigation measures. On November 8, 2016, the Commission provided notice of

the proposed route modifications; it then rescheduled issuance of the final

environmental impact statement from December 17, 2016 to February 17, 2017,

and reopened the comment process for newly-affected landowners. On January 23,

2017, the Commission rescheduled the final statement to April 6, 2017, “based

upon additional information provided by PennEast and certain state agencies.”

The final environmental impact statement found that the PennEast project

would result in some adverse environmental impacts, but that those impacts would

be reduced to less-than-significant levels with implementation of PennEast’s

proposed – and additional Commission-mandated – mitigation measures.

E. The District Court Dismisses Riverkeeper’s Complaint

On March 2, 2016, Riverkeeper filed its complaint in the United States

District Court for the District of Columbia, alleging that the Commission is

“unconstitutionally structurally biased because of its funding mechanism, which

requires the Commission to recover its budget by charging regulated natural gas

companies.” Del. Riverkeeper, 243 F. Supp. 3d at 146 (citing 42 U.S.C.

§ 7178), JA 83; see Compl. ¶ 8, JA 11-12. Riverkeeper’s complaint further

asserted that its claim of structural bias is supported by the Commission’s

supposed actual bias. See Del. Riverkeeper, 243 F. Supp. 3d at 146 (listing alleged

actual bias allegations) (citing Compl. ¶¶ 175-240, JA 43-57), JA 83. Riverkeeper

10

asked the District Court to declare the Budget Act’s reimbursement requirement

unconstitutional, or “declare the Commission’s power of eminent domain or

authority to preempt state and local laws to be unconstitutional.” Del. Riverkeeper,

243 F. Supp. 3d at 146, JA 83.

On March 3, 2017, the District Court granted the Defendants-Appellees’

(FERC and PennEast’s) motions to dismiss Riverkeeper’s complaint for failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6) on two bases. Del.

Riverkeeper, 243 F. Supp. 3d at 151-55, JA 92-98. First, while holding that

Riverkeeper could establish standing, id. at 146-51, JA 86-92, the Court concluded

that Riverkeeper could not state a claim as a matter of law because Riverkeeper

lacked a cognizable, federally-protected liberty or property interest. Id. at

152, JA 92-95.

The Court rejected Riverkeeper’s argument that section 27 of the

Pennsylvania State Constitution creates such a property interest. Id. at 153, JA 94.

Section 27 creates only a public right – because it would be “untenable for every

citizen of Pennsylvania” to have a due process right any time that the government

takes action to affect the environment. Id. The Court likewise found that the

possible taking of property under eminent domain is separate from a due process

right, and that Riverkeeper does not have a recognized liberty interest. Id.

11

Second, the District Court held that Riverkeeper could not state a structural

bias claim as a matter of law, because the “plain language” of the Budget Act

demonstrates that the Commission cannot increase its budget by approving any

pipeline. Id. at 154, JA 96. Congress instead sets the Commission’s budget

through appropriations. Id. As a result, the Budget Act’s recoupment mechanism

cannot provide a “possible temptation” to the average FERC Commissioner to

approve a pipeline application. Id., JA 97

The District Court found Riverkeeper’s contrary narrative – that

Commissioners act together to approve pipelines over decades to ensure the

agency’s “general, long-term [financial] interest” – was too remote. Id. Given that

Riverkeeper admits that pipelines can last 40 years or more, it was not “plausible

that the potential for FERC’s budget to ‘dry up’ if FERC stopped approving

pipeline projects” was imminent or tangible enough to create any bias. Id.

(citations omitted); see also id. (noting that more than 25 federal agencies and

departments recoup some or all costs from user fees) (quoting Statement of Interest

of the United States 14, ECF No. 13). The Court continued that, even if at some

point the Commission could not recoup its full budget through industry charges,

Congress “would likely come up with a new funding mechanism, because

ultimately it is Congress, not regulated pipeline companies, that funds the

12

Commission and determines its authority and activities.” Del. Riverkeeper, 243 F.

Supp. 3d at 154-55, JA 97.

SUMMARY OF ARGUMENT

The Natural Gas Act, enacted in 1938, entrusts the Commission with the

responsibility to determine whether a pipeline application is in the public interest.

It provides the agency broad authority to attach terms and conditions necessary to

ensure that the pipeline can be operated safely and responsibly, consistent with

environmental standards. In the 1986 Budget Act, Congress instructed the

Commission to recoup its authorized budget – set by Congressional appropriation –

by assessing fees on natural gas pipelines and other FERC-regulated industries.

Decades later, Riverkeeper challenges this statutory scheme as improperly

creating an institutional structural bias in the Commission to approve natural gas

applications in a manner that imperils the due process interests of Riverkeeper’s

members. But, as the District Court correctly found in dismissing Riverkeeper’s

complaint, Riverkeeper cannot state such a bias claim as a matter of law, based on

the plain text of the Budget Act and other relevant statutes. At a minimum, such a

structural bias claim would require that the Commission’s approval of a pipeline

increase the agency’s funding. And here, the Commission’s approval of any action

concerning a natural gas project does not increase the agency’s funds.

13

Instead, Congress sets the Commission’s funding through appropriations.

The Budget Act only instructs the Commission to recoup those fixed costs, with

the fees directly deposited with the U.S. Treasury. The Commission must return

any charges that are recovered above the Commission’s approved costs. As the

District Court found, this process is similar to how numerous other federal

agencies and departments recoup some or all of their Congressional appropriations

through user fees.

Riverkeeper’s only response is the implausible scenario that Commissioners

of both parties over decades approve pipelines solely out of a concern that there

will otherwise eventually be too few natural gas pipelines left to adequately

recover the agency’s costs under the Budget Act. But as the District Court found,

this is precisely the type of improbable scheme that courts have found too remote

to state a claim of institutional bias against a federal agency. And as the District

Court added, should such a scenario occur, Congress would likely come up with

some other funding mechanism, because it is ultimately Congress that determines

the Commission’s funding and budget priorities.

Nor can Riverkeeper state a federally-protected liberty or property interest.

As the District Court found, section 27 of the Pennsylvania Constitution only

creates a general public right. It is both too vague and not the type of individual

14

property interest protected by the Due Process Clause. Nor can Riverkeeper use

purported eminent domain concerns to create a due process claim.

Riverkeeper’s belated attempt to state a due process action based on the

perceived slowness of agency rehearing likewise fails. This and other circuit

courts have uniformly upheld the Commission’s use of tolling orders to extend the

time, beyond 30 days, for the Commission to consider applications for rehearing as

consistent with the Natural Gas Act’s rehearing and judicial review provisions.

Should Riverkeeper have a concern about the Commission’s use of a tolling order

in a particular agency proceeding, it must bring such a claim directly to the court of

appeals as part of a challenge to that certificate proceeding, consistent with the

Natural Gas Act’s exclusive review requirement.

Commission actions are guided solely by the grant of authority provided by

Congress in the Natural Gas Act (and other FERC-administered statutes); courts

presume the honesty and integrity of agency decision-making. In any pipeline

proceeding, the Commission assesses whether project benefits will outweigh any

adverse effects; that assessment is based on the record developed in that

proceeding. The Natural Gas Act provides the Commission broad authority to

attach mitigating conditions to any certificate it issues. If, even with conditions

addressing environmental and operating concerns, adverse effects cannot be

15

mitigated, and public benefits do not prevail, the Commission will decline the

application.

As Riverkeeper admits, the Commission’s public interest, Natural Gas Act

responsibilities existed prior to, and were not changed by, the Budget Act.

Approving a natural gas project does not increase the funds available to the

Commission. So Riverkeeper cannot state a structural bias claim as a matter of

law.

ARGUMENT I. STANDARD OF REVIEW

This Court reviews de novo a district court’s grant of a motion to dismiss for

a failure to state a claim under Federal Rule of Civil Procedure Rule 12(b)(6). See,

e.g., Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (citing

Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1108 (D.C. Cir. 2008)). Although

a court must construe all facts for a Rule 12(b)(6) motion in the non-moving

party’s favor, a plaintiff’s complaint must “‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff’s factual allegations “must

be enough to raise a right to relief above the speculative level.” Bell Atl. Corp.,

550 U.S. at 570.

16

And although a court must accept a plaintiff’s factual allegations as true, it

need not “accept factual inferences drawn by plaintiffs if those inferences are not

support by facts alleged in the complaint, nor must the Court accept plaintiff’s

legal conclusions.” Del. Riverkeeper, 243 F. Supp. 3d at 146-47 (citation

omitted), JA 84; accord Iqbal, 556 U.S. at 678; Browning v. Clifton, 292 F.3d 235,

242 (D.C. Cir. 2002). A court may draw on its “judicial experience and common

sense.” Iqbal, 556 U.S. at 679.

On a motion to dismiss for failure to state a claim, a court “may consider. . .

any matters of which [the court] may take judicial notice.” EEOC v. St. Francis

Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). This includes statutes,

case law, other legal authorities, and facts in the public record. See Earle v. Dist.

of Columbia, 707 F.3d 299, 308 n.10 (D.C. Cir. 2012); Kaempe v. Myers, 367 F.3d

958, 965 (D.C. Cir. 2004).

II. RIVERKEEPER CANNOT STATE A STRUCTURAL BIAS CLAIM AS A MATTER OF LAW The District Court correctly found that Riverkeeper cannot state a structural

bias claim as a matter of law because, under the statutory scheme, Congress sets

the Commission’s budget. The Commission cannot increase its funding by

approving a natural gas pipeline. Riverkeeper’s allegation, that the Commission

nonetheless has a general, long-term interest in approving pipelines so that it can

17

recoup its costs as required under the Budget Act, is implausible. Moreover, it

would call into question the funding of numerous other federal agencies.

A. The Commission Cannot Be Structurally Biased Because Approving A Pipeline Does Not Increase The Agency’s Funding

The Supreme Court has recognized a due process violation for

impermissible bias where the procedure at issue offers the “‘possible temptation to

the average’” adjudicator, “‘which might lead [the adjudicator] not to hold the

balance nice, clear, and true.’” Doolin Sec. Sav. Bank v. FDIC, 53 F.3d 1395,

1406 (4th Cir. 1995) (quoting Ward v. Village of Monroeville, 409 U.S. 57, 93

(1972)); accord Del. Riverkeeper, 243 F. Supp. 3d at 154, JA 97. Two such types

of structural bias claims have been recognized. A plaintiff can establish an

administrator’s direct pecuniary or other personal interest in the decision (not

applicable here). See Gibson v. Berryhill, 411 U.S. 564, 578 (1973) (revocation of

licenses by the optometry board would “possibly redound to the personal benefit of

members of the [b]oard”); Tumey v. Ohio, 273 U.S. 510, 520 (1927) (upholding

bias claim where the mayor-judge received compensation above his regular salary

if he convicted defendants in liquor cases).

Or a plaintiff can show that a judgment provides a strong motive for an

organization to rule in a way that aids the institution – i.e., a claim of structural

institutional bias. See Doolin, 53 F.3d at 1406 (discussing distinction between the

18

two types of structural bias claims) (citing Ward, 409 U.S. at 93); see generally

U.S. Stmt. of Interest 5-7, ECF No. 13.

To state an institutional bias claim, courts have required that a plaintiff show

that the organization’s decision would substantially increase the institution’s

available funds. See United States v. Benitez-Villafuerte, 186 F.3d 651, 660 (5th

Cir. 1999) (finding that the Immigration and Naturalization Service was not

structurally biased because it lacked a “direct personal, substantial, and pecuniary

interest”); Doolin, 53 F.3d at 1406-07 (detailing how institutional bias claims have

required a “direct pecuniary benefit”). Compare Ward, 409 U.S. at 58 (upholding

a structural bias claim where a “major part of village income is derived from the

fines” imposed in mayor’s court) with Dugan v. Ohio, 277 U.S. 61, 62-63 (1928)

(no impermissible bias when the money from the mayor prosecuting liquor cases

went to the general fund, even though the mayor was paid from the general fund,

because the connection was too remote).

Here, when the Commission authorizes a pipeline, approval does not

increase the funds available to the Commission. See Del. Riverkeeper, 243 F.

Supp. 3d at 154 (describing statutory scheme), JA 96. Congress sets the

Commission’s budget. See 42 U.S.C. § 7171(j). The Commission submits a

budget request through the Office of Budget and Management, with Congress

determining the suitable appropriation. See id.; see also FERC Order No. 472, at

19

30,620 (“Congress will continue to approve the Commission’s budget through

annual and supplemental appropriations.”); see generally U.S. Stmt. Of Interest 8-

9, ECF No. 13.

The Budget Act only instructs the Commission to recoup its fixed

appropriation. See 42 U.S.C. § 7178(a). The Commission reimburses the Treasury

Department directly by dividing the agency’s fixed costs among regulated

pipelines. See id. § 7178(a), (f); see also 18 C.F.R. § 382.202 (explaining how the

Commission divides user fees proportionally among pipelines based upon the

volume of gas shipped). Approving a new pipeline only further divides those fixed

costs, resulting in a lower per-unit charge for each pipeline. Likewise, denying an

application does not alter the Commission’s budget. See Del. Riverkeeper, 243 F.

Supp. 3d at 154-55, JA 96-97.

The Budget Act prohibits the Commission from collecting any charges

above its fixed costs. 42 U.S.C. § 7178(a), (e). Should the Commission collect

user fees in excess of its costs for the year, the Budget Act requires that the

Commission “true up” those costs, reducing the industry assessments for the

following year to prevent over-recovery by the Commission. Id. § 7178(e). The

Anti-Deficiency Act likewise prohibits the Commission from spending beyond its

appropriated amount. See 31 U.S.C. § 1341(a)(1)(A).

20

Because of these statutory constraints, the District Court correctly found that

Riverkeeper could not plausibly state a structural bias claim – because an

institutional structural bias claim would require that the Commission’s approval of

a pipeline substantially increase the Commission’s funding – and the “plain

language of the statute indicates that FERC does not have control over its own

budget.” Del. Riverkeeper, 243 F. Supp. 3d at 154, JA 96. The “Commission’s

budget cannot be increased by approving pipelines; rather [the Budget Act]

requires the Commission to make adjustments to ‘eliminate any overrecovery or

underrecovery.’” Id. (quoting 42 U.S.C. § 7178[e]). “Congress determines

FERC’s budget, which has no relationship to the number of approved pipelines or

the quantity of gas being transported within FERC’s jurisdiction.” Del.

Riverkeeper, 243 F. Supp. 3d at 154, JA 96.

So, unlike cases where courts have found a possible temptation toward

institutional bias, the Commission here “stands to gain no direct benefit from the

approval of a particular pipeline project.” Id.; see also Doolin, 53 F.3d at 1407

(holding that statutory limitations on the Federal Deposit Insurance Corporation’s

(FDIC) control over funding were “important” to supporting the court’s finding

that the agency was not institutionally biased). Because Riverkeeper’s allegations

“directly conflict with the statutory scheme at issue,” the District Court dismissed

Riverkeeper’s complaint. Del. Riverkeeper, 243 F. Supp. 3d at 154 (rejecting

21

Riverkeeper’s claim that there are “contested issues of fact” because the “court is

not required to assume the truth of allegations by Plaintiffs” that are contradicted

by law), JA 96.

B. Riverkeeper’s Claim Cannot Contradict The Plain Statutory Language

The case law cited by Riverkeeper likewise holds that, to state a structural

bias claim, an organization’s decision must increase the funds available to the

institution. See Riverkeeper Br. 30 (citing Alpha Epsilon Phi Tau Chapter House

Ass’n v. City of Berkeley, 114 F.3d 840, 845, 847 (9th Cir. 1997) (finding that the

rent stabilization board’s “financial interest in its coverage adjudications [was not]

sufficiently large” to violate due process); and United Church of the Med. Ctr. v.

Med. Ctr. Comm’n, 689 F.2d 693, 699 (7th Cir. 1982) (reverter proceedings were

unconstitutional because a finding of nonuse or disuse of property by the agency

results in the property reverting to the agency, with the agency keeping the

proceeds of the property’s subsequent sale)); see also Compl. ¶ 115 (admitting that

an agency’s decision must “supply” funds for its budget to implicate a structural

bias due process claim), JA 31-32.

Riverkeeper admits that the Commission’s budget is set by Congressional

appropriation. See Riverkeeper Br. 34 (Riverkeeper “does not argue that a failure

to approve any one project would change the Commission’s budget”). Riverkeeper

concedes that annual fees received from the natural gas industry are “deposited

22

into the Treasury as a direct offset to [the Commission’s] appropriation, resulting

in no net appropriation.” Compl. ¶ 67 (citing 42 U.S.C. § 7178(f)), JA 22.

Yet Riverkeeper nevertheless argues that the fact that Congress sets the

Commission’s funding should not matter because Congress purportedly lacks any

“statutory incentives” to ensure that the Commission does not “get everything it

asks for from Congress.” Riverkeeper Br. at 50. But, as the District Court held,

this ignores Congress’s constitutional role in setting the Commission’s budget. See

Del. Riverkeeper, 243 F. Supp. 3d at 154 (rejecting the argument that Congress

does not set meaningful limits on the Commission’s spending, because if

“Plaintiffs are unhappy with Congress’s chosen appropriation to the Commission

. . . Plaintiffs’ recourse lies with their legislative representatives”), JA 96.

In fact, in recent years, Congress has at least twice set a lower budget than

the Commission requested. See, e.g., Consolidated Appropriations Resolution,

2015 Pub. L. No. 113-234, Div. D., Title III, 128 Stat. 2321 (2014) (setting lower

budget than requested). Compare H.R. 3183, Pub. L. 111-85, p. 27 (setting FERC

2011 budget at $298,000,000) with http://www.ferc.gov/about/strat-docs/FY11-

budg.pdf (2011 budget request seeking $315,600,000 in total budget); see

generally U.S. Stmt. of Interest 13 (“Congress has, in some years, appropriated less

than the amounts requested by FERC”), ECF No. 13.

23

Riverkeeper tries to obscure this judicially noticeable fact by stating that

Congress has approved “over ninety-nine percent” of the money that the

Commission has requested. Riverkeeper Br. 50. As the District Court found,

merely because Riverkeeper may wish that percentage were lower does not change

the fact that, by language and operation of the statutory scheme, Congress controls

the Commission’s funding. Del. Riverkeeper, 243 F. Supp. 3d at 154, JA 96; see

also FERC Order No. 472 at 30,620 (The Commission’s “annual charges [] do not

constitute a ‘blank check’ to the Commission but merely serve . . . to reimburse the

[Treasury] for the Commission’s expenses approved by Congress.”); see generally

Browning, 292 F.3d at 242 (a complaint’s allegations cannot contradict law).

C. Riverkeeper’s Allegations Are Too Remote To State A Plausible Structural Bias Claim

Riverkeeper also argues that, despite the fact that Congress sets the

Commission’s funding, the Commission nevertheless somehow receives a “direct

and substantial” benefit from recouping its costs from natural gas pipelines because

it can spread its fixed budget “across a greater revenue base.” Riverkeeper Br. 34.

It is this fantastical scenario – that the Commission approves pipelines solely

for its “general, long-term [financial] interest” – that the District Court rightly

found too remote to state a plausible structural bias claim. Del. Riverkeeper, 243

F. Supp. 3d at 154, JA 97. It assumes that the Commission never approves a

pipeline on the merits as being in the public interest. But see Minisink, 762 F.3d at

24

101 (Congress has mandated under the Natural Gas Act that FERC “shall” approve

any pipeline that is in the public convenience and necessity) (citing 15 U.S.C.

§ 717f(e)); Del. Riverkeeper, 243 F. Supp. 3d at 154 (finding that Congress

determines the agency’s “authority and activities”), JA 96.

Instead, it requires the Court to believe the implausible scenario that

Commissioners of different parties collude together over decades to approve

pipelines solely to ensure the agency’s long-term ability to comply with the Budget

Act’s recoupment provision. Del. Riverkeeper, 243 F. Supp. 3d at 154, JA 97. As

the District Court found, even accepting this narrative on its face, it is “not

plausible that the potential for FERC’s budget to ‘dry up’ if FERC stopped

approving pipeline projects is imminent or tangible enough to create any bias.” Id.

(citation omitted). There are more than 210 distinct pipeline systems in the

continental United States. See INGAA Amicus Br. 6, ECF No. 22.4 As

Riverkeeper acknowledges, a pipeline can last up to forty years or more. Del.

Riverkeeper, 243 F. Supp. 3d at 154 (citing Compl. ¶ 122, JA 33), JA 97.

So, as the District Court found, “the connection between the act of

approving an individual pipeline and the financial sustainability of the Commission

4 See also Department of Energy, Appendix B, Natural Gas at 26 (specifying the number of interstate natural gas pipelines), available at https://energy.gov/sites/prod/files/2015/06/f22/Appendix%20B-%20Natural%20Gas_1.pdf.

25

as a whole is simply too remote to create any such bias.” Id. at 154, JA 97. Even

if the Commission’s ability at some future date to recoup its budget through

proportionate charges on natural gas pipelines “was jeopardized, Congress would

likely come up with a new funding” mechanism. Id. “[U]ltimately it is Congress,

not regulated pipeline companies that funds” the Commission. Id.

The District Court’s holding is consistent with other courts’ rejection of

structural bias claims when the financial interests of agencies or organizations are

too “remote and insubstantial” to violate due process. Aetna Life Ins. Co. v.

Lavoie, 475 U.S. 813, 826 (1986); see Benitez-Villafuerte, 186 F.3d at 660 (fact

that the agency’s “congressional funding depend[ed] to some extent on its

statistical workload in apprehending and deporting illegal aliens” was too tenuous

for a bias claim); Van Harken v. City of Chicago, 103 F.3d 1346, 1353 (7th Cir.

1997) (affirming the Rule 12(b)(6) dismissal of a structural bias claim, finding that

“the mere fact that an administrative or adjudicative body derives a financial

benefit from fines or penalties that it imposes is not in general a violation of due

process” except in “exceptional cases”) (collecting cases); Doolin, 53 F.3d at 1407

(rejecting the allegation that the “entire decisionmaking apparatus of the FDIC is

biased” merely because the agency must assess premiums on member institutions

to support the federal deposit insurance fund); Hammond v. Baldwin, 866 F.2d

172, 177 (6th Cir. 1989) (rejecting claim that entire state government is biased

26

where claimants alleged general institutional bias in favor of a state interest or

policy).

Riverkeeper’s argument that the Commission’s statutory funding scheme is

like that in Ward is incorrect. Riverkeeper Br. 33 (citing 409 U.S. at 60). In Ward,

any one fine was “symptomatic of a greater constitutional problem,” Riverkeeper

Br. 33, because each fine increased the funds available to the municipality and

accounted for a substantial portion of city revenues. See Ward, 409 U.S. at 60.

Here, any individual pipeline decision “does not increase FERC’s budget.” Del.

Riverkeeper, 243 F. Supp. 3d at 155, JA 98.

Riverkeeper’s contentions instead violate the “presumption of honesty and

integrity” of individual Commissioners. Caperton v. A.T. Massey Coal Co., 556

U.S. 886, 891 (2001); see also Doolin, 53 F.3d at 1507 (declining to “abrogate the

presumption of honesty and integrity” of the FDIC administrators). Each

Commissioner serves for a term up to five years and is confirmed by the Senate,

with no more than three Commissioners from one political party. See Compl.

¶¶ 60-61, JA 21; see also 42 U.S.C. § 7171(b).

Riverkeeper’s position is also contradicted by the statutory scheme and

administrative record. The Commission has denied projects that it found were not

in the public convenience and necessity. See, e.g., Jordan Cove Energy Project,

L.P., 154 FERC ¶ 61,190, PP 38-41 (2016) (denying a natural gas project where

27

the need “‘did not outweigh the potential for adverse impact on landowners and

communities’”); see generally PennEast Mot. to Dismiss 29 (collecting

Commission orders denying, modifying, or rescinding certificates), ECF No. 19.

As this Court recently explained, natural gas pipeline approval rates are not

probative of bias because, by the time applicants complete the FERC review

process, applicants will likely continue to pursue only applications that will likely

be granted. NO Gas Pipeline v. FERC, 756 F.3d 764, 770 (D.C. Cir. 2014) (“The

fact that [pipeline applicants] generally succeed in choosing to expend their

resources on applications that serve their own financial interests does not mean that

an agency which recognizes merit in such applications is biased.”).

Even when the Commission does approve an application, it often attaches

extensive mitigation conditions. See, e.g. Great Lakes Gas Transmission Ltd.

P’ship v. FERC, 985 F.2d 426, 432 (D.C. Cir. 1993) (“the Commission has

extremely broad authority to condition certificates under section 7(e)”). And

contrary to Riverkeeper’s claim of collusion, individual Commissioners do not

always agree. See, e.g., Minisink, 762 F.3d at 104 (noting that two Commissioners

dissented from the approval of the Minisink Compressor Project).

D. Riverkeeper’s Complaint Questions The Funding Structure For Other Federal Agencies And Contradicts Federal Policy

The District Court further found that Riverkeeper’s complaint would call

into question the constitutionality of “‘more than twenty-five federal agencies’”

28

that recoup some or more of their operating costs “‘through the collection of user

fees and other annual assessments.’” Del. Riverkeeper, 243 F. Supp. 3d at 243

(quoting U.S. Stmt. of Interest 14, ECF No. 13), JA 97; see also Tex. E.

Transmission, LP, 141 FERC ¶ 61,043, P 20 n.32 (2012) (citing Government

Accountability Office report finding that 27 agencies rely on user fees for a

significant portion of their budget); U.S. Stmt. of Interest 14-15 & n.7 (collecting

Congressional acts providing for agency assessments), ECF No. 13.

Indeed, the policy of the United States has been to encourage self-sustaining

agencies to the extent possible. 31 U.S.C. § 9701; see Skinner v. Mid-Am. Pipeline

Co., 490 U.S. 212, 214 (1989) (upholding statute authorizing the Department of

Transportation to collect user fees to cover expenses incurred administering the

Pipeline Safety Acts, and recognizing that legislation as “one of a number of recent

congressional enactments designed to make various federal regulatory programs

partially or entirely self-financing”) (citing 42 U.S.C. § 7178 and other statutes). If

Riverkeeper objects to this policy, its recourse lies with Congress. See Del.

Riverkeeper, 243 F. Supp. 3d at 154, JA 96; see also Doolin, 53 F.3d at 1407

(“finding the FDIC biased in this case would seriously undermine the ability of

agencies in general to adjudicate disputes that affect their official policies”).

Although Riverkeeper disclaims that it is questioning how other agencies

recoup costs through industry charges, Riverkeeper fails to distinguish the

29

Commission’s user fee scheme from those of other agencies. See Riverkeeper Br.

44-45. But see id. at 51 (suggesting that Congress can only fully weigh the

tradeoffs inherent in funding an agency if the agency is solely funded through taxes

or deficit spending and cannot recoup any costs).

Riverkeeper asserts that the Commission is the only agency that fully

recoups its costs from user fees – but then cites a 1997 Government Accounting

Office report for the proposition that 15 other agencies are “fully or nearly funded”

by fees. Id. at 45 (citation omitted); see also, e.g., 47 U.S.C. § 159(a) (instructing

the Federal Communications Commission to assess and collect fees equal to the

amounts appropriated by Congress).

Riverkeeper’s focus on the Nuclear Regulatory Commission only

underscores the similarity of the Commission to other agencies. Riverkeeper Br.

46. Like the Nuclear Regulatory Commission, the Commission can only “recover

its Congressionally-approved ‘budget authority.’” Id. (quoting 42 U.S.C. § 2214);

See also Clean Air Council Amicus Br. 29-39 (extensively focusing on the U.S.

Patent and Trademark Office’s requirement of user fees from patent applicants); cf.

Doolin, 53 F.3d at 1407 (“The FDIC’s interest in maintaining the [federal deposit

insurance] fund appears no greater than the interests of many agencies that

adjudicate penalty or fee determinations in their own administrative proceedings”).

30

The Ninth Circuit concurrence of Judge Noonan relied upon by Riverkeeper,

Br. 35, demonstrates why the Commission’s funding mechanism is unremarkable.

See Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1309-10 (9th Cir. 2003)

(Noonan, J., concurring). Even in expressing concern that each timber sale

increased the monies available to the Forest Service “independent of the normal

appropriation process,” Judge Noonan recognized that “the impartiality of the

agency would not be an issue if all the money from the [timber] sales went to the

Treasury” or if the agency were “dependent on Congress” for funding. Id. at 1310.

This is exactly what occurs here. The natural gas pipeline user fees are

directly deposited into the Treasury’s general fund to reimburse the Treasury for

the Commission’s congressionally-appropriated costs. See 42 U.S.C.

§§ 7178(a)(1), (f).

E. Riverkeeper Cannot Support A Structural Bias Claim By Asserting The Appearance Of Bias Or Actual Bias

Riverkeeper is thus left arguing that the Commission appears biased to

Riverkeeper. See Riverkeeper Br. 46. But as the District Court correctly held, the

proof required to demonstrate an appearance of bias assertion is the same as

required for a claim of structural bias. See Del. Riverkeeper, 243 F. Supp. 3d at

155 (holding that Riverkeeper could not demonstrate that FERC was structurally

biased or had the appearance of bias), JA 98; see also Esso Standard Oil Co. v.

Cotto, 389 F.3d 212, 218-19 (1st Cir. 2004) (cited by Riverkeeper, Br. 46, holding

31

that a structural bias claim requires that the “adjudicative body stands to benefit

financially from the proceeding” by increasing the organization’s budget, and

finding structural bias where fines were deposited in a special account over which

the institution had complete discretion).

The “appearance of bias” cases cited by Riverkeeper, Br. 31-32, do not

address claims of institutional structural bias. See, e.g. In re Murchinson, 349 U.S.

133, 134-35 (1955) (finding a due process violation where the same judge who sat

as a one-man grand jury later presided over a witness contempt proceeding that

arose out of that grand jury proceeding); D.C. Fed’n of Civic Ass’ns v. Volpe, 459

F.2d 1231, 1248 (D.C. Cir. 1971) (remanding to the trial court to consider whether

the Secretary of Transportation was biased in an individual decision).

Nevertheless, these cases reaffirm that the same test is applied to Riverkeeper’s

appearance of bias claim – and requires Riverkeeper to demonstrate the same

objective person standard – namely that the Commission’s funding structure

“‘would offer a possible temptation to the average [person] as a judge . . . not to

hold the balance nice, clear and true . . . .’” In re Murchinson, 349 U.S. at 136

(quoting Tumey, 273 U.S. at 532). As the District Court correctly held here, it is

not plausible to believe that the “Commission’s general, long-term [financial]

interest” results in such a temptation to the average Commissioner in considering a

pipeline application. Del. Riverkeeper, 243 F. Supp. 3d at 154, JA 97.

32

Nor, the District Court found, are Riverkeeper’s allegations of supposed

actual bias supportive of Riverkeeper’s structural bias claim. Id. at 155

(“Allegations of actual bias cannot create structural bias where the court

determines there is none.”), JA 98. Riverkeeper is incorrect in contending that the

Commission’s funding increases derive from the agency’s natural gas program.

See, e.g. Riverkeeper Br. 38, 51. Instead, the Commission’s increased budget is

primarily due to the agency’s new responsibilities related to the development of

regional electricity markets – and new regulatory authority granted to the

Commission in the Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594.

See FERC v. Elec. Power Supply Ass’n, 136 S. Ct. 760, 768 (2016) (describing

modern development of regional electricity markets).

Although the Commission’s natural gas program accounts for almost 20

percent of the agency’s budget, the size of the natural gas program as a percentage

of the Commission’s overall budget has decreased since 2003.5 Any supposed

naturally-rising fixed costs, Riverkeeper Br. 42, are addressed by Congressional

appropriations. See Del. Riverkeeper, 243 F. Supp. 3d at 155, JA 97. The NO Gas

Pipeline Court did not hold that it was “interested in addressing,” as a “factual

question[],” the Commission’s ability to absorb “ever-rising fixed costs,” as

5 Commission congressional budget requests by industry are available at http://www.ferc.gov/about/strat-docs/requests-reports.asp.

33

Riverkeeper contends. Riverkeeper Br. 43 (citing NO Gas Pipeline, 756 F.3d at

769). The NO Gas Pipeline Court only found that the court of appeals lacked

direct review authority over a claim regarding the Budget Act (as opposed to a

claim brought under the Natural Gas Act). 756 F.3d at 769 (finding that the

petitioner had not provided any “foundation” upon which the Court could have

reviewed petitioner’s actual bias claim).

The Commission’s budgetary costs, requirements, and requests are public

records. What the Natural Gas Act requires the Commission to do is consider a

natural gas application on its individual merits and determine whether it is in the

public convenience and necessity. See, e.g., Sierra Club v. FERC, 867 F.3d 1357,

1379 (D.C. Cir. 2017) (affirming, in relevant appeal, how the Commission first

determines whether a pipeline proposal meets a “market need” before balancing

the benefits and harms of the project). Riverkeeper wants to claim that the

Commission’s funding scheme is something other than a straightforward receipt of

Congressional appropriations – scenarios that the District Court found too remote

to support a structural bias claim. Del. Riverkeeper, 243 F.3d at 154, JA 97.

III. RIVERKEEPER HAS FAILED TO SHOW A PROTECTED LIBERTY OR PROPERTY INTEREST

The District Court also correctly dismissed Riverkeeper’s complaint because

Riverkeeper cannot show the required federally-protected individual liberty or

property interest necessary to maintain a due process claim. Del. Riverkeeper, 243

34

F. Supp. 3d at 152 (citing Mathews v. Eldridge, 424 U.S. 319, 332 (1976)), JA 93;

accord Gen. Elec. Co. v. Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010) (“The first

inquiry in every due process challenge is whether the plaintiff has been deprived of

a protected interest” in liberty or property) (citation omitted); cf. Del. Riverkeeper,

243 F. Supp. 3d at 151 (finding that Riverkeeper had sufficiently demonstrated

standing, while observing that “[r]edressability is a slightly more challenging

element” for Riverkeeper), JA 91.

A. Section 27 Of The Pennsylvania Constitution Does Not Create An Individual Due Process Property Interest

In response, Riverkeeper continues to rely upon section 27 of the

Pennsylvania Constitution, which provides that the “people” of Pennsylvania have

a “right to clean air, pure water,” and to the preservation of the environment. Pa.

Const. art. I, § 27; see Riverkeeper Br. 12-27. But as the District Court held,

section 27 is “too vague to confer a property interest, as it does not state how clean

the water must be or how pure the air.” Del. Riverkeeper, 243 F. Supp. 3d at 153

(citation omitted), JA 94; see Town of Castle Rock v. Gonzales, 545 U.S. 748, 763-

64 (2005) (“Nor can someone be safely deemed “entitled” to something when the

identity of the alleged entitlement is vague”); see also Bd. of Regents of State

Colleges v. Roth, 408 U.S. 564, 577 (1972) (“To have a property interest in a

benefit, a person clearly must have more than an abstract need or desire for it.”).

35

Further, while “section 27 may confer a public right that would entitle

plaintiffs to sue the state of Pennsylvania for failing to protect the environment, it

does not create a federal[ly] protected property” interest. Del. Riverkeeper, 243 F.

Supp. 3d at 152-53, JA 94. The District Court found that it “would be untenable

for every citizen of Pennsylvania to have a federal due process right,” as it would

necessitate every citizen receiving notice and an opportunity to be heard “any time

the [government] takes action that could impact the environment.” Id. at

153, JA 94; see United States v. James Daniel Good Real Prop., 510 U.S. 43, 48

(1993).

The Pennsylvania Supreme Court decisions in Robinson Township v.

Commonwealth, 83 A.3d 564 (Pa. 2013), and Pennsylvania Environmental Defense

Foundation v. Commonwealth, 161 A.3d 911 (Pa. 2017), do not alter the District

Court’s analysis. The Robinson plurality opinion – issued before the District

Court’s decision – indicates that section 21 creates a public trust in the

environment with Pennsylvania as the “trustee,” permitting citizens to enforce the

provision against the state. Robinson, 83 A.3d at 957. Pennsylvania

Environmental Defense Foundation merely adopts that Robinson plurality as a

holding of the Pennsylvania Supreme Court, finding that section 21 is a

“prohibitory” clause providing a right to “common ownership” for all citizens. 161

A.3d at 931.

36

These cases only confirm what the District Court already assumed about the

right created by section 27 – that it “may confer a public right that would entitle

plaintiffs to sue the state of Pennsylvania.” Del. Riverkeeper, 243 F. Supp. 3d at

152-53, JA 94. That is far from the state constitution creating a unique federal due

process property right for every Pennsylvanian. See Town of Castle Rock, 545

U.S. at 766 (holding that the Supreme Court has been cautious in finding a federal

due process property right outside of the “traditional conception of property”).

Whether an underlying state law gives rise to a “‘legitimate claim of

entitlement’ protected by the Due Process Clause” is ultimately a question of

“federal constitutional law.” Town of Castle Rock, 545 U.S. at 757 (quoting

Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978)). At a minimum,

an “entitlement must have ‘some ascertainable monetary value’ in order to

‘constitute a property interest for purposes of the Due Process Clause.’” Roberts v.

United States, 741 F.3d 152, 162 (D.C. Cir. 2014) (holding that a right to

performance counseling did not create a protected property interest) (quoting Town

of Castle Rock, 545 U.S. at 766); see O’Bannon v. Town Court Nursing Ctr., 447

U.S. 773, 787 (1980) (an “action that is directed against a third party and affects

the citizen only indirectly and incidentally” does not give rise to a due process

property right). Riverkeeper has not made such a showing here. See College Sav.

Bank v. Fla. Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 673 (1999)

37

(holding that the “hallmark of a property interest is the right to exclude others,”

and so the right citizens possess in the use of public lands is not a “property right

of anyone”).

B. Eminent Domain Does Not Give Rise To A Due Process Property Interest, And Riverkeeper Lacks Any Liberty Interest

The District Court likewise found that any “real property at stake in potential

subsequent eminent domain proceedings does not constitute a protected property

interest granting the Plaintiffs additional, pre-eminent domain due process rights

during the certificate approval stage.” Del. Riverkeeper, 243 F. Supp. 3d at 153,

JA 95. Under the Natural Gas Act, 15 U.S.C § 717f(h), eminent domain authority

is automatically conferred by statute upon a certificate holder. See Midcoast

Interstate Transmission, Inc. v. FERC, 198 F.3d 960, 973 (D.C. Cir. 2000)

(recognizing that the Natural Gas Act confers eminent domain on a natural gas

certificate holder and FERC does not have the discretion to deny a certificate

holder the power of eminent domain); Mountain Valley Pipeline, LLC, 161 FERC

¶ 61,043, PP 58-62 (2017) (explaining the statutory process, before the agency and

federal district court).

As the District Court correctly held, “any actual taking of real property

related to a FERC proceeding would occur through the process of eminent domain,

which would be a separate proceeding from the issuance of a certificate, and which

has generated its own due process jurisprudence.” Del. Riverkeeper, 243 F. Supp.

38

3d at 153, JA 94. As the District Court found, Riverkeeper is not challenging a

lack of due process in an eminent domain proceeding. Id. Instead, Riverkeeper is

objecting to the Commission certificate proceeding itself that can “sometimes lead

to eminent domain.” Id., JA 95. But the process provided for by the Takings

Clause – namely a right to just compensation – does not entitle a property holder to

a pre-deprivation hearing. See Williamson Cty. Reg’l Planning Comm’n v.

Hamilton Bank of Johnson City, 473 U.S. 172, 195 n.14 (1985) (holding that,

unlike the Due Process Clause, the “Just Compensation Clause has never been held

to require pretaking process”); Presley v. City of Charlottesville, 464 F.3d 480,

489-90 (4th Cir. 2006) (a “physical taking” does not require a hearing or notice

prior to the taking); Transcontinental Gas Pipe Line Co., LLC v. Permanent

Easements for 5.67 Acres, No. 17-544, 2017 WL 3412374, at *3 (M.D. Pa. Aug. 9,

2017) (eminent domain proceedings in front of federal district court cannot be used

to collaterally challenge the facts of an underlying pipeline application).

The Clean Air Council’s attempts to distinguish Presley, see Amicus Br. 17,

fail because the alleged harms to property from the theoretical negligent conduct of

a pipeline company do not implicate the Commission’s certificate proceeding – let

alone the Due Process Clause. See Davidson v. Cannon, 474 U.S. 344, 347-48

(1986) (damage to property is not a deprivation if the government’s conduct is

negligent). If such negligent conduct by a pipeline company were occurring, the

39

Commission could revoke or impose additional requirements on a certificate

holder for failing to abide by the certificate’s mandatory conditions. See, e.g.,

Hamilton v. El Paso Nat. Gas Co., 141 FERC ¶ 61,229, PP 1, 29 (2012) (requiring

a pipeline to perform remedial restoration work when the pipeline left a

landowner’s property in a disturbed condition); see also Rover Pipeline, LLC,

FERC Staff Notice of Alleged Violations (July 13, 2017) (preliminary agency

finding that Rover pipeline violated the Natural Gas Act for failing to adequately

protect a historic resource).6

Nor does Riverkeeper possess a liberty interest. As the District Court held,

the “aesthetic interests or enjoyment of wildlife” are not the types of liberty

interests protected by the Fifth Amendment. Del. Riverkeeper, 243 F. Supp. 3d at

153 (holding that the liberty interests recognized as protected by due process

include the liberty “from actual physical restraint[,] marriage and reproductive

choices, and the right to live in the United States”), JA 95. Nor does the right to

participate administratively in the Commission’s proceedings create such a due

process right. See 15 U.S.C. § 717f(c)(1)(B); see also Brandon v. D.C. Bd. of

Parole, 823 F.2d 644, 648 (D.C. Cir. 1987) (“an expectation of receiving process is

6 Available at https://www.ferc.gov/enforcement/alleged-violation/notices/2017/20170713-Rover-NAV.pdf.

40

not, without more, a liberty interest protected by the Due Process Clause”) (citation

omitted).

IV. RIVERKEEPER DID NOT BRING, AND CANNOT STATE, A DUE PROCESS CLAIM BASED ON THE COMMISSION’S USE OF TOLLING ORDERS

Finally, Riverkeeper belatedly seeks to convert its complaint into a due

process challenge to the Commission’s use of tolling orders that allow for

continued agency consideration on requests for agency rehearing. Compare

Riverkeeper Br. 52 with Compl., Section VI (Request for Relief) (not stating a due

process tolling claim), JA 67-68; id. ¶ 191 (citing tolling orders solely as “[a]n

example of the Commission’s bias toward industry” to support structural bias

claim), JA 46; see generally Bennett v. Islamic Republic of Iran, 618 F.3d 19, 22

(D.C. Cir. 2010) (argument is forfeited if raised for the first time on appeal).

Nevertheless, its challenge should be rejected.

As the District Court explained, under the Natural Gas Act’s exclusive

review provision, any party “aggrieved” by a Commission order must first apply

for agency rehearing. Del. Riverkeeper, 243 F. Supp. 3d at 145 (quoting 15 U.S.C.

§ 717r(a)), JA 81. The Act then provides that the Commission shall “act[] on the

petition for rehearing” within 30 days or the request for rehearing will be deemed

denied and a party can seek judicial review. Del. Riverkeeper, 243 F. Supp. 3d at

145, JA 81. The Commission often issues a tolling order within that 30-day period

41

to provide additional time to consider requests for rehearing (which, in a natural

gas certificate proceeding, can be numerous). See id.

As the District Court noted, the D.C. Circuit and other courts have uniformly

upheld the Commission’s use of tolling orders as consistent with the Natural Gas

Act. This is because Natural Gas Act “section 717r’s language requiring the

Commission to take action with regard to a rehearing request within 30 days, or

have it deemed denied, does not require FERC to act on the merits.” Id. at 145-46

(citing Cal. Co. v. FPC, 411 F.2d 720, 722 (D.C. Cir. 1969) and other cases),

JA 82; see also Kokajko v. FERC, 837 F.2d 524, 525 (1st Cir. 1988) (statutory

requirement to “act” within 30 days does not mean FERC must act on the merits);

Gen. Am. Oil Co. of Tex. v. FPC, 409 F.2d 597, 599 (5th Cir. 1969) (same).

Instead, the provision’s requirement for the Commission to “‘act’” is

satisfied when the agency provides notice within the 30-day period that it intends

to consider further a rehearing request. Del. Riverkeeper, 243 F. Supp. 3d at 146

(quoting Cal. Co., 411 F.2d at 722), JA 82. When the Commission issues such a

tolling order, “a party’s appeal remains unripe because ‘the tolling orders do not

resolve the rehearing requests but simply extend the time to consider them.’” Del.

Riverkeeper, 243 F. Supp. 3d at 146 (quoting City of Glendale v. FERC, No. 03-

1261, 2004 WL 180270, at *1 (D.C. Cir. Jan. 22, 2004) (unpublished)), JA 82; see

also City of Glendale, 2004 WL 180270, at *1 (“Nor is there merit to petitioner’s

42

contention that this court should treat FERC’s orders tolling the period for

resolving petitioner’s requests for agency rehearing as effectively denying

rehearing”).

In Kokajko, the First Circuit rejected the argument that the Commission’s

use of tolling orders under the Federal Power Act’s substantially similar exclusive

review provision, 16 U.S.C. § 825l(a), violates the Due Process Clause. See

Kokajko, 837 F.2d at 525-26; see also Emera Me. v. FERC, 854 F.3d 9, 20 (D.C.

Cir. 2017) (“judicial interpretations of the FPA and the NGA may be followed

interchangeably”) (citations omitted). The First Circuit found its decision

consistent with this and other courts’ opinions upholding the use of tolling orders

under the Natural Gas Act. See Kokajko, 837 F.2d at 525 (citing Cal. Co., 411

F.2d 720, and Gen. Am. Oil. Co., 409 F.2d 597).

Riverkeeper does not provide a reason why it has a due process liberty or

property interest in the Commission’s potential use of tolling orders after the

potential issuance of a certificate to PennEast. Riverkeeper Br. 54. Instead, if

Riverkeeper believes that the Commission’s extension of time to consider

rehearing requests for a particular pipeline application is unwarranted, it can

challenge that extension as inconsistent with the Natural Gas Act, under the

Natural Gas Act’s judicial review process. See 15 U.S.C. § 717r(a)-(b); see also

NO Gas Pipeline, 756 F.3d at 769 (the Natural Gas Act provides circuit courts

43

direct review of claims arising out of FERC proceedings under the Act); see also

Town of Dedham v. FERC, No. 15-12352, 2015 WL 4274884, at *2 (D. Mass. July

15, 2015) (“any alleged infirmity” with a FERC certificate ruling or “its authority

to so rule” can only be challenged in the court of appeals) (citation omitted).

In fact, Riverkeeper has previously sought immediate appellate review and

judicial intervention where the Commission has tolled the 30-day deadline in an

individual certificate proceeding to consider rehearing requests. See, e.g., In re:

Del. Riverkeeper Network, No. 15-1052 (D.C. Cir. Mar. 19, 2015) (denying a stay

to halt construction while rehearing was pending); see also 15 U.S.C. § 717r(c)

(petitioning for agency rehearing or judicial review does not stay effectiveness of

FERC certificate order). If Riverkeeper believes it is aggrieved by the

Commission’s use of a tolling order in any particular proceeding, it can pursue

appellate review in the appropriate manner.

CONCLUSION

For the foregoing reasons, the District Court’s dismissal of Riverkeeper’s

complaint for failure to state a claim should be affirmed.

Respectfully submitted,

James P. Danly

General Counsel Robert H. Solomon Solicitor

44

/s/ Ross R. Fulton Ross R. Fulton Attorney For Respondent

Federal Energy Regulatory Commission

Final Brief: February 13, 2018 Washington, D.C. 20426

Delaware Riverkeeper Network, et al. v. FERC, et al., No. 17-5084 CERTIFICATE OF COMPLIANCE

In accordance with Fed. R. App. P. 32(a)(5), Fed. R. App. P. 32(a)(6), and

Fed. R. App. P. 32(a)(7)(C)(i), I certify that the Brief of Respondent Federal

Energy Regulatory Commission contains 9,615 words, not including the (i) cover

page, (ii) certificates of counsel, (iii) tables of contents and authorities, (iv)

glossary, and (v) addendum, and has been prepared in a proportionally spaced

typeface using Microsoft Word 2010 with 14-point, Times New Roman font.

/s/ Ross R. Fulton

Ross R. Fulton Attorney

Federal Energy Regulatory Commission 888 First Street, NE Washington, D.C. 20426 Phone: (202) 502-6791 Fax: (202) 273-0901 Email: [email protected] February 13, 2018

mailto:[email protected]

ADDENDUM STATUTES

AND REGULATIONS

TABLE OF CONTENTS

PAGE

STATUTES:

Anti-Deficiency Act

31 U.S.C. § 1341(a)(1)(A) ..................................................................... A-1

Department of Energy Organization Act

42 U.S.C. § 7171(a) ............................................................................... A-3

42 U.S.C. § 7171(b) ............................................................................... A-3

42 U.S.C. § 7171(j) ................................................................................ A-4

Federal Power Act

16 U.S.C. § 825l(a) ................................................................................ A-6

Independent Offices Appropriations Act

31 U.S.C. § 9701 .................................................................................... A-7

Natural Gas Act

15 U.S.C. § 717(b)-(c) ........................................................................... A-9

15 U.S.C. § 717f(c) .............................................................................. A-10

15 U.S.C. § 717f(e) .............................................................................. A-10

15 U.S.C. § 717f(h).............................................................................. A-11

15 U.S.C. § 717r(a)-(c) ........................................................................ A-12

TABLE OF CONTENTS PAGE


42 U.S.C. § 7178(a)(1) ........................................................................ A-13

42 U.S.C. § 7178(b) ............................................................................. A-13

42 U.S.C. § 7178(e) ............................................................................. A-13

42 U.S.C. § 7178(f).............................................................................. A-13


42 U.S.C. § 2214 .................................................................................. A-14


47 U.S.C. § 159(a) ............................................................................... A-16

REGULATIONS:

18 C.F.R. § 11.1 ................................................................................... A-17

18 C.F.R. §§ 157.1-157.22 .................................................................. A-21

18 C.F.R. § 381.207 ............................................................................. A-23

18 C.F.R. § 381.401-03 ....................................................................... A-24

18 C.F.R. § 381.501-05 ....................................................................... A-24

18 C.F.R. § 382.201-03 ....................................................................... A-25

TITLE 31—MONEY AND FINANCE § 1341

Pub. L. 110–289, § 3011(b)(3), inserted ‘‘36,’’ after ‘‘35,’’. Pub. L. 110–246, § 15316(c)(6), substituted ‘‘, 53(e),

54B(h), or 6428’’ for ‘‘or 6428 or 53(e)’’. Pub. L. 110–185 inserted ‘‘or 6428’’ after ‘‘section 35’’. 2006—Subsec. (b)(2). Pub. L. 109–432 inserted ‘‘or 53(e)’’

after ‘‘section 35’’. 2002—Subsec. (b)(2). Pub. L. 107–210 inserted ‘‘, or

from section 35 of such Code’’ before period at end. 1997—Subsec. (b)(2). Pub. L. 105–34 inserted before pe-

riod at end ‘‘, or enacted by the Taxpayer Relief Act of

1997’’. 1986—Subsec. (b)(2). Pub. L. 99–514 substituted ‘‘Inter-

nal Revenue Code of 1986’’ for ‘‘Internal Revenue Code

of 1954’’.

EFFECTIVE AND TERMINATION DATES OF 2010

AMENDMENT

Amendment by section 1401(d)(1) of Pub. L. 111–148 ap-

plicable to taxable years ending after Dec. 31, 2013, see

section 1401(e) of Pub. L. 111–148, set out as an Effective

Date note under section 36B of Title 26, Internal Reve-

nue Code. Amendment by section 10909(b)(2)(P) of Pub. L. 111—

148 inapplicable to taxable years beginning after Dec.

31, 2011, and this section is amended to read as if such

amendment had never been enacted, see section 10909(c)

of Pub. L. 111–148, set out as a note under section 1 of

Title 26, Internal Revenue Code. Amendment by section 10909(b)(2)(P) of Pub. L.

111–148 applicable to taxable years beginning after Dec.

31, 2009, see section 10909(d) of Pub. L. 111–148, set out

as a note under section 1 of Title 26, Internal Revenue

Code.

EFFECTIVE DATE OF 2009 AMENDMENT

Amendment by section 1001(e)(2) of Pub. L. 111–5 ap-

plicable to taxable years beginning after Dec. 31, 2008,

see section 1001(f) of Pub. L. 111–5, set out as an Effec-

tive Date note under section 36A of Title 26, Internal

Revenue Code. Amendment by section 1004(b)(8) of Pub. L. 111–5 ap-

plicable to taxable years beginning after Dec. 31, 2008,

see section 1004(d) of Pub. L. 111–5, set out as an Effec-

tive and Termination Dates of 2009 Amendment note

under section 24 of Title 26, Internal Revenue Code. Amendment by section 1531(c)(1) of Pub. L. 111–5 ap-

plicable to obligations issued after Feb. 17, 2009, see sec-

tion 1531(e) of Pub. L. 111–5, set out as a note under sec-

tion 54 of Title 26, Internal Revenue Code.


Amendment by section 3011(b)(3) of Pub. L. 110–289 ap-

plicable to residences purchased on or after Apr. 9, 2008,

in taxable years ending on or after such date, see sec-

tion 3011(c) of Pub. L. 110–289, set out as a note under

section 26 of Title 26, Internal Revenue Code. Amendment by section 3081(c) of Pub. L. 110–289 appli-

cable to taxable years ending after Mar. 31, 2008, see

section 3081(d) of Pub. L. 110–289, set out as a note

under section 168 of Title 26, Internal Revenue Code. Amendment of this section and repeal of Pub. L.

110–234 by Pub. L. 110–246 effective May 22, 2008, the

date of enactment of Pub. L. 110–234, except as other-

wise provided, see section 4 of Pub. L. 110–246, set out

as an Effective Date note under section 8701 of Title 7,

Agriculture. Amendment by section 15316(c)(6) of Pub. L. 110–246

applicable to obligations issued after June 18, 2008, see

section 15316(d) of Pub. L. 110–246, set out as a note

under section 54 of Title 26, Internal Revenue Code.


Amendment by Pub. L. 109–432 applicable to taxable

years beginning after Dec. 20, 2006, see section 402(c) of

Pub. L. 109–432, set out as a note under section 53 of

Title 26, Internal Revenue Code.


Amendment by Pub. L. 105–34 applicable to taxable

years beginning after Dec. 31, 1997, see section 101(e) of

Pub. L. 105–34, set out as a note under section 24 of

Title 26, Internal Revenue Code.

CONSTRUCTION OF 2002 AMENDMENT

Nothing in amendment by Pub. L. 107–210, other than

provisions relating to COBRA continuation coverage

and reporting requirements, to be construed as creating

new mandate on any party regarding health insurance

coverage, see section 203(f) of Pub. L. 107–210, set out as

a note under section 2918 of Title 29, Labor.

COORDINATION WITH REFUND PROVISION

Pub. L. 101–508, title XI, § 11116, Nov. 5, 1990, 104 Stat.

1388–415, provided that: ‘‘For purposes of section

1324(b)(2) of title 31 of the United States Code, section

32 of the Internal Revenue Code of 1986 [26 U.S.C. 32] (as

amended by this Act) shall be considered to be a credit

provision of the Internal Revenue Code of 1954 enacted

before January 1, 1978.’’

SUBCHAPTER III—LIMITATIONS,

EXCEPTIONS, AND PENALTIES

SHORT TITLE

Certain provisions of this subchapter and subchapter

II of chapter 15 of this title were originally enacted as

section 3679 of the Revised Statutes, popularly known

as the Anti-Deficiency Act. That section was repealed

as part of the general revision of this title by Pub. L.

97–258, and its provisions restated in sections 1341, 1342,

1349 to 1351, and 1511 to 1519 of this title.

§ 1341. Limitations on expending and obligatingamounts

(a)(1) An officer or employee of the United

States Government or of the District of Colum-

bia government may not—

(A) make or authorize an expenditure or ob-

ligation exceeding an amount available in an

appropriation or fund for the expenditure or

obligation;

(B) involve either government in a contract

or obligation for the payment of money before

an appropriation is made unless authorized by

law;

(C) make or authorize an expenditure or ob-

ligation of funds required to be sequestered

under section 252 of the Balanced Budget and

Emergency Deficit Control Act of 1985; or

(D) involve either government in a contract

or obligation for the payment of money re-

quired to be sequestered under section 252 of

the Balanced Budget and Emergency Deficit

Control Act of 1985.

(2) This subsection does not apply to a cor-

poration getting amounts to make loans (except

paid in capital amounts) without legal liability

of the United States Government.

(b) An article to be used by an executive de-

partment in the District of Columbia that could

be bought out of an appropriation made to a reg-

ular contingent fund of the department may not

be bought out of another amount available for

obligation.

(Pub. L. 97–258, Sept. 13, 1982, 96 Stat. 923; Pub.

L. 101–508, title XIII, § 13213(a), Nov. 5, 1990, 104

Stat. 1388–621.)

A-1


HISTORICAL AND REVISION NOTES

Revised Section

Source (U.S. Code) Source (Statutes at Large)

1341(a) ..... 31:665(a), (d)(2)(last sentence related to spending and obligations).

R.S. § 3679(a), (d)(2)(last sen-tence related to spending and obligations); Mar. 3, 1905, ch. 1484, § 4(1st par.), 33 Stat. 1257; Feb. 27, 1906, ch. 510, § 3, 34 Stat. 48; restated Sept. 6, 1950, ch. 896, § 1211, 64 Stat. 765.

1341(b) ..... 31:669(words after semicolon).

Aug. 23, 1912, ch. 350, § 6(words after semicolon), 37 Stat. 414.

In subsection (b), the words ‘‘another amount avail-

able for obligation’’ are substituted for ‘‘any other

fund’’ for consistency in the revised title.

REFERENCES IN TEXT

Section 252 of the Balanced Budget and Emergency

Deficit Control Act of 1985, referred to in subsec.

(a)(1)(C), (D), is classified to section 902 of Title 2, The

Congress.

AMENDMENTS

1990—Subsec. (a)(1)(C), (D). Pub. L. 101–508 added sub-

pars. (C) and (D).

§ 1342. Limitation on voluntary services

An officer or employee of the United States

Government or of the District of Columbia gov-

ernment may not accept voluntary services for

either government or employ personal services

exceeding that authorized by law except for

emergencies involving the safety of human life

or the protection of property. This section does

not apply to a corporation getting amounts to

make loans (except paid in capital amounts)

without legal liability of the United States Gov-

ernment. As used in this section, the term

‘‘emergencies involving the safety of human life

or the protection of property’’ does not include

ongoing, regular functions of government the

suspension of which would not imminently

threaten the safety of human life or the protec-

tion of property.

(Pub. L. 97–258, Sept. 13, 1982, 96 Stat. 923; Pub.

L. 101–508, title XIII, § 13213(b), Nov. 5, 1990, 104

Stat. 1388–621; Pub. L. 104–92, title III, § 310(a),

Jan. 6, 1996, 110 Stat. 20.)


Revised Section


1342 ......... 31:665(b). R.S. § 3679(b), (d)(2)(last sen-tence related to voluntary services); Mar. 3, 1905, ch. 1484, § 4(1st par.), 33 Stat. 1257; Feb. 27, 1906, ch. 510, § 3, 34 Stat. 48; restatedSept. 6, 1950, ch. 896, § 1211, 64 Stat. 765.

31:665(d)(2)(last sen-tence related to voluntary serv-ices).

The words ‘‘District of Columbia government’’ are

added because of section 47–105 of the D.C. Code.

AMENDMENTS

1996—Pub. L. 104–92 temporarily amended section by

inserting ‘‘All officers and employees of the United

States Government or the District of Columbia govern-

ment shall be deemed to be performing services relat-

ing to emergencies involving the safety of human life

or the protection of property.’’ after first sentence and

by striking out at end ‘‘As used in this section, the

term ‘emergencies involving the safety of human life or

the protection of property’ does not include ongoing,

regular functions of government the suspension of

which would not imminently threaten the safety of

human life or the protection of property’’. See Effec-

tive and Termination Dates of 1996 Amendment note

below. 1990—Pub. L. 101–508 inserted at end ‘‘As used in this

section, the term ‘emergencies involving the safety of

human life or the protection of property’ does not in-

clude ongoing, regular functions of government the sus-

pension of which would not imminently threaten the

safety of human life or the protection of property.’’

EFFECTIVE AND TERMINATION DATES OF 1996 AMENDMENT

Section 310(a) of Pub. L. 104–92 provided that the

amendment made by that section is for the period Dec.

15, 1995, through Jan. 26, 1996.

§ 1343. Buying and leasing passenger motor vehi-cles and aircraft

(a) In this section, buying a passenger motor

vehicle or aircraft includes a transfer of the ve-

hicle or aircraft between agencies. (b) An appropriation may be expended to buy

or lease passenger motor vehicles only— (1) for the use of—

(A) the President; (B) the secretaries to the President; or (C) the heads of executive departments

listed in section 101 of title 5; or

(2) as specifically provided by law.

(c)(1) Except as specifically provided by law,

an agency may use an appropriation to buy a

passenger motor vehicle (except a bus or ambu-

lance) only at a total cost (except costs required

only for transportation) that— (A) includes the price of systems and equip-

ment the Administrator of General Services

decides is incorporated customarily in stand-

ard passenger motor vehicles completely

equipped for ordinary operation; (B) includes the value of a vehicle used in ex-

change; (C) is not more than the maximum price es-

tablished by the agency having authority

under law to establish a maximum price; and (D) is not more than the amount specified in

a law.

(2) Additional systems and equipment may be

bought for a passenger motor vehicle if the Ad-

ministrator decides the purchase is appropriate.

The price of additional systems or equipment is

not included in deciding whether the cost of the

vehicle is within a maximum price specified in a

law. (d) An appropriation (except an appropriation

for the armed forces) is available to buy, main-

tain, or operate an aircraft only if the appro-

priation specifically authorizes the purchase,

maintenance, or operation. (e) This section does not apply to—

(1) buying, maintaining, and repairing pas-

senger motor vehicles by the United States

Capitol Police; (2) buying, maintaining, and repairing vehi-

cles necessary to carry out projects to im-

prove, preserve, and protect rivers and har-

bors; or (3) leasing, maintaining, repairing, or oper-

ating motor passenger vehicles necessary in

A-2

TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7171

the President, dated December 6, 1916, as

amended by Executive order dated June 12,

1919;

(5) Oil Shale Reserve Numbered 2, located in

Utah, established by Executive order of the

President, dated December 6, 1916; and

(6) Oil Shale Reserve Numbered 3, located in

Colorado, established by Executive order of

the President, dated September 27, 1924.

In the administration of any of the functions

transferred to, and vested in, the Secretary by

this section the Secretary shall take into con-

sideration the requirements of national secu-

rity.

(Pub. L. 95–91, title III, § 307, Aug. 4, 1977, 91 Stat.

581.)

§ 7156a. Repealed. Pub. L. 105–85, div. C, titleXXXIV, § 3403, Nov. 18, 1997, 111 Stat. 2059

Section, Pub. L. 96–137, § 2, Dec. 12, 1979, 93 Stat. 1061,

related to assignment of naval officers to key manage-

ment positions within Office of Naval Petroleum and

Oil Shale Reserves in Department of Energy and to po-

sition of Director.

§ 7157. Transfers from Department of Commerce

There are transferred to, and vested in, the

Secretary all functions of the Secretary of Com-

merce, the Department of Commerce, and offi-

cers and components of that Department, as re-

late to or are utilized by the Office of Energy

Programs, but limited to industrial energy con-

servation programs.


581.)

§ 7158. Naval reactor and military applicationprograms

The Division of Naval Reactors established

pursuant to section 2035 of this title, and respon-

sible for research, design, development, health,

and safety matters pertaining to naval nuclear

propulsion plants and assigned civilian power re-

actor programs is transferred to the Department

under the Under Secretary for Nuclear Security,

and such organizational unit shall be deemed to

be an organizational unit established by this

chapter.


581; Pub. L. 106–65, div. C, title XXXII, § 3294(c),

Oct. 5, 1999, 113 Stat. 970.)

REFERENCES IN TEXT

This chapter, referred to in text, was in the original

‘‘this Act’’, meaning Pub. L. 95–91, Aug. 4, 1977, 91 Stat.

565, as amended, known as the Department of Energy

Organization Act, which is classified principally to this

chapter. For complete classification of this Act to the

Code, see Short Title note set out under section 7101 of

this title and Tables.

AMENDMENTS

1999—Pub. L. 106–65 struck out subsec. (a) designation

before ‘‘The Division of Naval Reactors’’, substituted

‘‘Under Secretary for Nuclear Security’’ for ‘‘Assistant

Secretary to whom the Secretary has assigned the

function listed in section 7133(a)(2)(E) of this title’’, and

struck out subsec. (b) which read as follows: ‘‘The Divi-

sion of Military Application, established by section 2035

of this title, and the functions of the Energy Research

and Development Administration with respect to the

Military Liaison Committee, established by section

2037 of this title, are transferred to the Department

under the Assistant Secretary to whom the Secretary

has assigned those functions listed in section 7133(a)(5)

of this title, and such organizational units shall be

deemed to be organizational units established by this

chapter.’’


Amendment by Pub. L. 106–65 effective Mar. 1, 2000,

see section 3299 of Pub. L. 106–65, set out as an Effective

Date note under section 2401 of Title 50, War and Na-

tional Defense.

TRANSFER OF FUNCTIONS

All national security functions and activities per-

formed immediately before Oct. 5, 1999, by the Office of

Naval Reactors transferred to the Administrator for

Nuclear Security of the National Nuclear Security Ad-

ministration of the Department of Energy, and the

Deputy Administrator for Naval Reactors of the Ad-

ministration to be assigned the responsibilities, au-

thorities, and accountability for all functions of the Of-

fice of Naval Reactors under Executive Order No. 12344,

set out as a note under section 2511 of Title 50, War and

National Defense, see sections 2406 and 2481 of Title 50.

Pub. L. 98–525, title XVI, § 1634, Oct. 19, 1984, 98 Stat.

2649, which was formerly set out as a note under this

section, was renumbered section 4101 of Pub. L. 107–314,

the Bob Stump National Defense Authorization Act for

Fiscal Year 2003, by Pub. L 108–136, div. C, title XXXI,

§ 3141(d)(2), Nov. 24, 2003, 117 Stat. 1757, and is set out as

a note under section 2511 of Title 50, War and National

Defense.

§ 7159. Transfer to Department of Transportation

Notwithstanding section 7151(a) of this title,

there are transferred to, and vested in, the Sec-

retary of Transportation all of the functions

vested in the Administrator of the Federal En-

ergy Administration by section 6361(b)(1)(B) of

this title.


582.)

SUBCHAPTER IV—FEDERAL ENERGY

REGULATORY COMMISSION

§ 7171. Appointment and administration

(a) Federal Energy Regulatory Commission; es-tablishment

There is established within the Department an

independent regulatory commission to be known

as the Federal Energy Regulatory Commission.

(b) Composition; term of office; conflict of inter-est; expiration of terms

(1) The Commission shall be composed of five

members appointed by the President, by and

with the advice and consent of the Senate. One

of the members shall be designated by the Presi-

dent as Chairman. Members shall hold office for

a term of 5 years and may be removed by the

President only for inefficiency, neglect of duty,

or malfeasance in office. Not more than three

members of the Commission shall be members of

the same political party. Any Commissioner ap-

pointed to fill a vacancy occurring prior to the

expiration of the term for which his predecessor

was appointed shall be appointed only for the re-

mainder of such term. A Commissioner may con-

tinue to serve after the expiration of his term

until his successor is appointed and has been

A-3


confirmed and taken the oath of Office, except

that such Commissioner shall not serve beyond

the end of the session of the Congress in which

such term expires. Members of the Commission

shall not engage in any other business, vocation,

or employment while serving on the Commis-

sion.

(2) Notwithstanding the third sentence of

paragraph (1), the terms of members first taking

office after April 11, 1990, shall expire as follows:

(A) In the case of members appointed to suc-

ceed members whose terms expire in 1991, one

such member’s term shall expire on June 30,

1994, and one such member’s term shall expire

on June 30, 1995, as designated by the Presi-

dent at the time of appointment.

(B) In the case of members appointed to suc-

ceed members whose terms expire in 1992, one

such member’s term shall expire on June 30,

1996, and one such member’s term shall expire

on June 30, 1997, as designated by the Presi-

dent at the time of appointment.

(C) In the case of the member appointed to

succeed the member whose term expires in

1993, such member’s term shall expire on June

30, 1998.

(c) Duties and responsibilities of Chairman The Chairman shall be responsible on behalf of

the Commission for the executive and adminis-

trative operation of the Commission, including

functions of the Commission with respect to (1)

the appointment and employment of hearing ex-

aminers in accordance with the provisions of

title 5, (2) the selection, appointment, and fixing

of the compensation of such personnel as he

deems necessary, including an executive direc-

tor, (3) the supervision of personnel employed by

or assigned to the Commission, except that each

member of the Commission may select and su-

pervise personnel for his personal staff, (4) the

distribution of business among personnel and

among administrative units of the Commission,

and (5) the procurement of services of experts

and consultants in accordance with section 3109

of title 5. The Secretary shall provide to the

Commission such support and facilities as the

Commission determines it needs to carry out its

functions.

(d) Supervision and direction of members, em-ployees, or other personnel of Commission

In the performance of their functions, the

members, employees, or other personnel of the

Commission shall not be responsible to or sub-

ject to the supervision or direction of any offi-

cer, employee, or agent of any other part of the

Department.

(e) Designation of Acting Chairman; quorum; seal

The Chairman of the Commission may des-

ignate any other member of the Commission as

Acting Chairman to act in the place and stead of

the Chairman during his absence. The Chairman

(or the Acting Chairman in the absence of the

Chairman) shall preside at all sessions of the

Commission and a quorum for the transaction of

business shall consist of at least three members

present. Each member of the Commission, in-

cluding the Chairman, shall have one vote. Ac-

tions of the Commission shall be determined by

a majority vote of the members present. The Commission shall have an official seal which shall be judicially noticed.

(f) Rules The Commission is authorized to establish

such procedural and administrative rules as are necessary to the exercise of its functions. Until changed by the Commission, any procedural and administrative rules applicable to particular functions over which the Commission has juris-diction shall continue in effect with respect to such particular functions.

(g) Powers of Commission In carrying out any of its functions, the Com-

mission shall have the powers authorized by the law under which such function is exercised to hold hearings, sign and issue subpenas, admin-ister oaths, examine witnesses, and receive evi-dence at any place in the United States it may designate. The Commission may, by one or more of its members or by such agents as it may des-ignate, conduct any hearing or other inquiry necessary or appropriate to its functions, except that nothing in this subsection shall be deemed to supersede the provisions of section 556 of title 5 relating to hearing examiners.

(h) Principal office of Commission The principal office of the Commission shall

be in or near the District of Columbia, where its general sessions shall be held, but the Commis-sion may sit anywhere in the United States.

(i) Commission deemed agency; attorney for Commission

For the purpose of section 552b of title 5, the Commission shall be deemed to be an agency. Except as provided in section 518 of title 28, re-lating to litigation before the Supreme Court,

attorneys designated by the Chairman of the

Commission may appear for, and represent the

Commission in, any civil action brought in con-

nection with any function carried out by the

Commission pursuant to this chapter or as

otherwise authorized by law.

(j) Annual authorization and appropriation re-quest

In each annual authorization and appropria-

tion request under this chapter, the Secretary

shall identify the portion thereof intended for

the support of the Commission and include a

statement by the Commission (1) showing the

amount requested by the Commission in its

budgetary presentation to the Secretary and the

Office of Management and Budget and (2) an as-

sessment of the budgetary needs of the Commis-

sion. Whenever the Commission submits to the

Secretary, the President, or the Office of Man-

agement and Budget, any legislative recom-

mendation or testimony, or comments on legis-

lation, prepared for submission to Congress, the

Commission shall concurrently transmit a copy

thereof to the appropriate committees of Con-

gress.

(Pub. L. 95–91, title IV, § 401, Aug. 4, 1977, 91 Stat.

582; Pub. L. 101–271, § 2(a), (b), Apr. 11, 1990, 104

Stat. 135.)

REFERENCES IN TEXT

This chapter, referred to in subsecs. (i) and (j), was in

the original ‘‘this Act’’, meaning Pub. L. 95–91, Aug. 4,

A-4


1977, 91 Stat. 565, as amended, known as the Depart-

ment of Energy Organization Act, which is classified

principally to this chapter. For complete classification

of this Act to the Code, see Short Title note set out

under section 7101 of this title and Tables.

AMENDMENTS

1990—Subsec. (b). Pub. L. 101–271 designated existing

provisions as par. (1), substituted ‘‘5 years’’ for ‘‘four

years’’, struck out after third sentence ‘‘The terms of

the members first taking office shall expire (as des-

ignated by the President at the time of appointment),

two at the end of two years, two at the end of three

years, and one at the end of four years.’’, substituted

‘‘A Commissioner may continue to serve after the expi-

ration of his term until his successor is appointed and

has been confirmed and taken the oath of Office, except

that such Commissioner shall not serve beyond the end

of the session of the Congress in which such term ex-

pires.’’ for ‘‘A Commissioner may continue to serve

after the expiration of his term until his successor has

taken office, except that he may not so continue to

serve for more than one year after the date on which

his term would otherwise expire under this sub-

section.’’, and added par. (2).


Section 2(c) of Pub. L. 101–271 provided that: ‘‘The

amendments made by this section [amending this sec-

tion] apply only to persons appointed or reappointed as

members of the Federal Energy Regulatory Commis-

sion after the date of enactment of this Act [Apr. 11,

1990].’’

RENEWABLE ENERGY AND ENERGY CONSERVATION

INCENTIVES

Pub. L. 101–549, title VIII, § 808, Nov. 15, 1990, 104 Stat.

2690, provided that:

‘‘(a) DEFINITION.—For purposes of this section, ‘re-

newable energy’ means energy from photovoltaic, solar

thermal, wind, geothermal, and biomass energy produc-

tion technologies.

‘‘(b) RATE INCENTIVES STUDY.—Within 18 months after

enactment [Nov. 15, 1990], the Federal Energy Regu-

latory Commission, in consultation with the Environ-

mental Protection Agency, shall complete a study

which calculates the net environmental benefits of re-

newable energy, compared to nonrenewable energy, and

assigns numerical values to them. The study shall in-

clude, but not be limited to, environmental impacts on

air, water, land use, water use, human health, and

waste disposal.

‘‘(c) MODEL REGULATIONS.—In conjunction with the

study in subsection (b), the Commission shall propose

one or more models for incorporating the net environ-

mental benefits into the regulatory treatment of re-

newable energy in order to provide economic compensa-

tion for those benefits.

‘‘(d) REPORT.—The Commission shall transmit the

study and the model regulations to Congress, along

with any recommendations on the best ways to reward

renewable energy technologies for their environmental

benefits, in a report no later than 24 months after en-

actment [Nov. 15, 1990].’’

RETENTION AND USE OF REVENUES FROM LICENSING

FEES, INSPECTION SERVICES, AND OTHER SERVICES

AND COLLECTIONS; REDUCTION TO ACHIEVE FINAL

FISCAL YEAR APPROPRIATION

Pub. L. 99–500, § 101(e) [title III], Oct. 18, 1986, 100 Stat.

1783–194, 1783–208, and Pub. L. 99–591, § 101(e) [title III],

Oct. 30, 1986, 100 Stat. 3341–194, 3341–208, provided in

part: ‘‘That hereafter and notwithstanding any other

provision of law revenues from licensing fees, inspec-

tion services, and other services and collections, esti-

mated at $78,754,000 in fiscal year 1987, may be retained

and used for necessary expenses in this account, and

may remain available until expended: Provided further,

That the sum herein appropriated shall be reduced as

revenues are received during fiscal year 1987, so as to

result in a final fiscal year 1987 appropriation esti-

mated at not more than $20,325,000.’’

Similar provisions were contained in the following

appropriation acts:

Pub. L. 111–85, title III, Oct. 28, 2009, 123 Stat. 2871.

Pub. L. 111–8, div. C, title III, Mar. 11, 2009, 123 Stat.

625.

Pub. L. 110–161, div. C, title III, Dec. 26, 2007, 121 Stat.

1966.

Pub. L. 109–103, title III, Nov. 19, 2005, 119 Stat. 2277.

Pub. L. 108–447, div. C, title III, Dec. 8, 2004, 118 Stat.

2957.

Pub. L. 108–137, title III, Dec. 1, 2003, 117 Stat. 1859.

Pub. L. 108–7, div. D, title III, Feb. 20, 2003, 117 Stat.

153.


Pub. L. 106–377, § 1(a)(2) [title III], Oct. 27, 2000, 114

Stat. 1441, 1441A–78.

Pub. L. 106–60, title III, Sept. 29, 1999, 113 Stat. 494.





Pub. L. 103–316, title III, Aug. 26, 1994, 108 Stat. 1719.



Pub. L. 102–104, title III, Aug. 17, 1991, 105 Stat. 531.



Pub. L. 100–371, title III, July 19, 1988, 102 Stat. 870.

Pub. L. 100–202, § 101(d) [title III], Dec. 22, 1987, 101

Stat. 1329–104, 1329–124.

§ 7172. Jurisdiction of Commission

(a) Transfer of functions from Federal Power Commission

(1) There are transferred to, and vested in, the

Commission the following functions of the Fed-

eral Power Commission or of any member of the

Commission or any officer or component of the

Commission:

(A) the investigation, issuance, transfer, re-

newal, revocation, and enforcement of licenses

and permits for the construction, operation,

and maintenance of dams, water conduits, res-

ervoirs, powerhouses, transmission lines, or

other works for the development and improve-

ment of navigation and for the development

and utilization of power across, along, from, or

in navigable waters under part I of the Federal

Power Act [16 U.S.C. 791a et seq.];

(B) the establishment, review, and enforce-

ment of rates and charges for the transmission

or sale of electric energy, including deter-

minations on construction work in progress,

under part II of the Federal Power Act [16

U.S.C. 824 et seq.], and the interconnection,

under section 202(b), of such Act [16 U.S.C.

824a(b)], of facilities for the generation, trans-

mission, and sale of electric energy (other

than emergency interconnection);

(C) the establishment, review, and enforce-

ment of rates and charges for the transpor-

tation and sale of natural gas by a producer or

gatherer or by a natural gas pipeline or natu-

ral gas company under sections 1, 4, 5, and 6 of

the Natural Gas Act [15 U.S.C. 717, 717c to

717e];

(D) the issuance of a certificate of public

convenience and necessity, including abandon-

ment of facilities or services, and the estab-

lishment of physical connections under sec-

tion 7 of the Natural Gas Act [15 U.S.C. 717f];

A-5

TITLE 16—CONSERVATION § 825l

Stat. 417 [31 U.S.C. 686, 686b])’’ on authority of Pub. L.

97–258, § 4(b), Sept. 13, 1982, 96 Stat. 1067, the first sec-

tion of which enacted Title 31, Money and Finance.

§ 825l. Review of orders

(a) Application for rehearing; time periods; modi-fication of order

Any person, electric utility, State, municipal-

ity, or State commission aggrieved by an order

issued by the Commission in a proceeding under

this chapter to which such person, electric util-

ity, State, municipality, or State commission is

a party may apply for a rehearing within thirty

days after the issuance of such order. The appli-

cation for rehearing shall set forth specifically

the ground or grounds upon which such applica-

tion is based. Upon such application the Com-

mission shall have power to grant or deny re-

hearing or to abrogate or modify its order with-

out further hearing. Unless the Commission acts

upon the application for rehearing within thirty

days after it is filed, such application may be

deemed to have been denied. No proceeding to

review any order of the Commission shall be

brought by any entity unless such entity shall

have made application to the Commission for a

rehearing thereon. Until the record in a proceed-

ing shall have been filed in a court of appeals, as

provided in subsection (b) of this section, the

Commission may at any time, upon reasonable

notice and in such manner as it shall deem prop-

er, modify or set aside, in whole or in part, any

finding or order made or issued by it under the

provisions of this chapter.

(b) Judicial review Any party to a proceeding under this chapter

aggrieved by an order issued by the Commission

in such proceeding may obtain a review of such

order in the United States court of appeals for

any circuit wherein the licensee or public utility

to which the order relates is located or has its

principal place of business, or in the United

States Court of Appeals for the District of Co-

lumbia, by filing in such court, within sixty

days after the order of the Commission upon the

application for rehearing, a written petition

praying that the order of the Commission be

modified or set aside in whole or in part. A copy

of such petition shall forthwith be transmitted

by the clerk of the court to any member of the

Commission and thereupon the Commission

shall file with the court the record upon which

the order complained of was entered, as provided

in section 2112 of title 28. Upon the filing of such

petition such court shall have jurisdiction,

which upon the filing of the record with it shall

be exclusive, to affirm, modify, or set aside such

order in whole or in part. No objection to the

order of the Commission shall be considered by

the court unless such objection shall have been

urged before the Commission in the application

for rehearing unless there is reasonable ground

for failure so to do. The finding of the Commis-

sion as to the facts, if supported by substantial

evidence, shall be conclusive. If any party shall

apply to the court for leave to adduce additional

evidence, and shall show to the satisfaction of

the court that such additional evidence is mate-

rial and that there were reasonable grounds for

failure to adduce such evidence in the proceed-

ings before the Commission, the court may

order such additional evidence to be taken be-

fore the Commission and to be adduced upon the

hearing in such manner and upon such terms

and conditions as to the court may seem proper.

The Commission may modify its findings as to

the facts by reason of the additional evidence so

taken, and it shall file with the court such

modified or new findings which, if supported by

substantial evidence, shall be conclusive, and its

recommendation, if any, for the modification or

setting aside of the original order. The judgment

and decree of the court, affirming, modifying, or

setting aside, in whole or in part, any such order

of the Commission, shall be final, subject to re-

view by the Supreme Court of the United States

upon certiorari or certification as provided in

section 1254 of title 28.

(c) Stay of Commission’s order The filing of an application for rehearing

under subsection (a) of this section shall not,

unless specifically ordered by the Commission,

operate as a stay of the Commission’s order. The

commencement of proceedings under subsection

(b) of this section shall not, unless specifically

ordered by the court, operate as a stay of the

Commission’s order.

(June 10, 1920, ch. 285, pt. III, § 313, as added Aug.

26, 1935, ch. 687, title II, § 213, 49 Stat. 860; amend-

ed June 25, 1948, ch. 646, § 32(a), 62 Stat. 991; May

24, 1949, ch. 139, § 127, 63 Stat. 107; Pub. L. 85–791,

§ 16, Aug. 28, 1958, 72 Stat. 947; Pub. L. 109–58,

title XII, § 1284(c), Aug. 8, 2005, 119 Stat. 980.)

CODIFICATION

In subsec. (b), ‘‘section 1254 of title 28’’ substituted

for ‘‘sections 239 and 240 of the Judicial Code, as amend-

ed (U.S.C., title 28, secs. 346 and 347)’’ on authority of

act June 25, 1948, ch. 646, 62 Stat. 869, the first section

of which enacted Title 28, Judiciary and Judicial Proce-

dure.

AMENDMENTS

2005—Subsec. (a). Pub. L. 109–58 inserted ‘‘electric

utility,’’ after ‘‘Any person,’’ and ‘‘to which such per-

son,’’ and substituted ‘‘brought by any entity unless

such entity’’ for ‘‘brought by any person unless such

person’’.

1958—Subsec. (a). Pub. L. 85–791, § 16(a), inserted sen-

tence to provide that Commission may modify or set

aside findings or orders until record has been filed in

court of appeals.

Subsec. (b). Pub. L. 85–791, § 16(b), in second sentence,

substituted ‘‘transmitted by the clerk of the court to’’

for ‘‘served upon’’, substituted ‘‘file with the court’’ for

‘‘certify and file with the court a transcript of’’, and in-

serted ‘‘as provided in section 2112 of title 28’’, and in

third sentence, substituted ‘‘jurisdiction, which upon

the filing of the record with it shall be exclusive’’ for

‘‘exclusive jurisdiction’’.

CHANGE OF NAME

Act June 25, 1948, eff. Sept. 1, 1948, as amended by act

May 24, 1949, substituted ‘‘court of appeals’’ for ‘‘circuit

court of appeals’’.

§ 825m. Enforcement provisions

(a) Enjoining and restraining violations Whenever it shall appear to the Commission

that any person is engaged or about to engage in

any acts or practices which constitute or will

constitute a violation of the provisions of this

A-6


1 So in original. Two sections 9703 have been enacted.

HISTORICAL AND REVISION NOTES—CONTINUED

Revised Section Source (U.S. Code) Source (Statutes at Large)

9503(b) ..... 31:68a(c).

In subsection (a), before clause (1), the words ‘‘Not-

withstanding any other provision of law or any admin-

istrative determination to the contrary . . . Federal’’

are omitted as unnecessary. The words ‘‘and each plan

described in section 68c(b) of this title’’ are omitted as

unnecessary because of the restatement. In clause (1),

before subclause (A), the words ‘‘required by such sec-

tion’’ are omitted as unnecessary because of the re-

statement. In subclause (A), the word ‘‘information’’ is

substituted for ‘‘information and data’’ because it is in-

clusive and for consistency. In clause (4), the words

‘‘and shall not supersede’’ are omitted as surplus. In

clause (5), the words ‘‘the Comptroller General deems’’

are omitted as unnecessary. The words ‘‘under section

1023 of title 29’’ are omitted as unnecessary because of

the restatement.

In subsection (b), the words ‘‘This chapter does not

prevent’’ are substituted for ‘‘Nothing in this chapter

shall preclude’’ for clarity. The words ‘‘or agencies’’ are

omitted as unnecessary because of 1:1.

AMENDMENTS

1998—Subsec. (a). Pub. L. 105–362 struck out subsec.

(a) which required Government pension plans to be sub-

ject to 29 U.S.C. 1023, except for officers or employees

of the Central Intelligence Agency unless the President

specifically approves application of the requirements of

section 1023 in writing for such officers and employees.

1995—Subsec. (c). Pub. L. 104–66 added subsec. (c).

EX. ORD. NO. 12177. DELEGATION OF FUNCTIONS TO DIREC-

TOR OF OFFICE OF MANAGEMENT AND BUDGET AND SEC-

RETARY OF THE TREASURY

Ex. Ord. No. 12177, Dec. 10, 1979, 44

F.RREGULATIONS:. 71805, pro-vided:

By the authority vested in me as President of the

United States of America by Section 121(a)(1) of the

Budget and Accounting Procedures Act of 1950, as

amended (92 Stat. 2541, Public Law 95–595, 31 U.S.C. 68a)

[31 U.S.C. 9503] and Section 301 of Title 3 of the United

States Code, and in order to provide consistency among

the financial and actuarial statements of Federal Gov-

ernment pension plans, it is hereby ordered as follows:

1–101. All the functions vested in the President by

Section 121(a) of the Budget and Accounting Procedures

Act of 1950, as amended (31 U.S.C. 68a) [31 U.S.C. 9503],

are delegated to the Director of the Office of Manage-

ment and Budget. The Director may, from time to

time, designate other officers or agencies of the Fed-

eral Government to perform any or all of the functions

hereby delegated to the Director, subject to such in-

structions, limitations, and directions as the Director

deems appropriate.

1–102. The head of an Executive agency responsible

for the administration of any Federal Government pen-

sion plan within the meaning of Section 123(a) of the

Budget and Accounting Procedures Act of 1950, as

amended (31 U.S.C. 68c) [31 U.S.C. 9502(1)], except sub-

sections (a)(9) and (b), shall ensure that the administra-

tors of those plans comply with the form, manner, and

time of filing as required by the Director of the Office

of Management and Budget.

1–103. Subject to the provisions of Section 1–101 of

this Order, and in the absence of any contrary delega-

tion or direction by the Director, the Secretary of the

Treasury, with respect to the development of the form

and content of the annual reports, shall perform the

functions set forth in Section 121(a) of the Budget and

Accounting Procedures Act of 1950, as amended (31

U.S.C. 68a) [31 U.S.C. 9503]. In performing this function,

the Secretary shall also be responsible for consulting

with the Comptroller General.

JIMMY CARTER.

§ 9504. Review and recommendations

When necessary or when requested by eitherHouse of Congress or a committee of Congress, the Comptroller General shall—

(1) review financial and actuarial statements provided under section 9503 of this title to de-cide whether the reporting requirements of section 9503 are adequate to carry out section 9501 of this title; and

(2) submit to Congress recommendations for legislation necessary to carry out section 9501 of this title.

(Pub. L. 97–258, Sept. 13, 1982, 96 Stat. 1051.)


Revised Section


9504 ......... 31:68b. Sept. 12, 1950, ch. 946, 64 Stat. 832, § 122; added Nov. 4, 1978, Pub. L. 95–595, § 1, 92 Stat. 2542.

The word ‘‘When’’ is substituted for ‘‘If’’ in both

places as being more precise. The word ‘‘deemed’’ is

omitted as unnecessary because of the restatement.

The words ‘‘the General Accounting Office’’ are omit-

ted as unnecessary because of the restatement and be-

cause the authority to act is vested in the Comptroller

General.

CHAPTER 97—MISCELLANEOUS

Sec.

9701. Fees and charges for Government services and

9702.

9703.1

9704.

things of value.

Investment of trust funds.

Managerial accountability and flexibility.

Pilot projects for managerial accountability

9703.1

and flexibility.

Department of the Treasury Forfeiture Fund.

AMENDMENTS

1993—Pub. L. 103–62, § 11(b)(2), Aug. 3, 1993, 107 Stat.

295, added item 9703 relating to managerial account-

ability and flexibility and item 9704.

1992—Pub. L. 102–393, title VI, § 638(b)(2), Oct. 6, 1992,

106 Stat. 1788, added item 9703.

§ 9701. Fees and charges for Government servicesand things of value

(a) It is the sense of Congress that each service or thing of value provided by an agency (except a mixed-ownership Government corporation) to a person (except a person on official business of the United States Government) is to be self-sus-taining to the extent possible.

(b) The head of each agency (except a mixed- ownership Government corporation) may pre-scribe regulations establishing the charge for a service or thing of value provided by the agency. Regulations prescribed by the heads of executive agencies are subject to policies prescribed by the President and shall be as uniform as practicable. Each charge shall be—

(1) fair; and (2) based on—

(A) the costs to the Government; (B) the value of the service or thing to the

recipient; (C) public policy or interest served; and (D) other relevant facts.

A-7


1 Another section 9703 is set out after section 9704 of this title. 2 See References in Text note below.

(c) This section does not affect a law of the United States—

(1) prohibiting the determination and collec-tion of charges and the disposition of those charges; and

(2) prescribing bases for determining charges, but a charge may be redetermined under this section consistent with the pre-scribed bases.

(Pub. L. 97–258, Sept. 13, 1982, 96 Stat. 1051.)


Revised Section


9701 ......... 31:483a. Aug. 31, 1951, ch. 376, § 501, 65 Stat. 290.

In the section, the words ‘‘agency (except a mixed-

ownership Government corporation)’’ are substituted

for ‘‘Federal agency (including wholly owned Govern-

ment corporations as defined in the Government Cor-

poration Control Act of 1945 [31 U.S.C. 841 et seq.]’’ be-

cause of section 101 of the revised title and for consist-

ency.

In subsection (a), the words ‘‘each service or thing of

value provided’’ are substituted for ‘‘any work, service,

publication, report, document, benefit, privilege, au-

thority, use, franchise, license, permit, certificate, reg-

istration or similar thing of value or utility performed,

furnished, provided, granted, prepared, or issued’’ for

consistency and to eliminate unnecessary words. The

words ‘‘(including groups, associations, organizations,

partnerships, corporations, or businesses)’’ are omitted

as being included in ‘‘person’’ under 1:1.

In subsection (b), before clause (1), the words ‘‘may

prescribe regulations establishing the charge for a serv-

ice or thing of value provided by the agency’’ are sub-

stituted for ‘‘is authorized by regulation . . . to pre-

scribe therefor such fee, charge, or price, if any, as he

shall determine, in case none exists, or redetermine, in

case of any existing one’’ for consistency, to eliminate

unnecessary words, and because of the restatement. In

clause (1), the words ‘‘and equitable’’ are omitted as

being included in ‘‘fair’’. In clause (2)(A), the words ‘‘di-

rect and indirect’’ are omitted as surplus. In clause

(2)(B), the words ‘‘of the service or thing’’ are added for

clarity. In clause (2)(D), the words ‘‘and any amount so

determined or redetermined shall be collected and paid

into the Treasury as miscellaneous receipts’’ are omit-

ted as unnecessary because of section 3302(a) of this

title.

Subsection (c) is substituted for 31:483a(provisos) for

clarity and to eliminate unnecessary words.

SHORT TITLE OF 1992 AMENDMENT

Pub. L. 102–393, title VI, § 638(a), Oct. 6, 1992, 106 Stat.

1779, provided that: ‘‘This section [enacting section 9703

of this title and amending sections 981 and 982 of Title

18, Crimes and Criminal Procedure, section 1509 of Title

21, Food and Drugs, section 524 of Title 28, Judiciary

and Judicial Procedure, and section 2003 of Title 39,

Postal Service] may be cited as the ‘Treasury Forfeit-

ure Fund Act of 1992’.’’

§ 9702. Investment of trust funds

Except as required by a treaty of the UnitedStates, amounts held in trust by the United States Government (including annual interest earned on the amounts)—

(1) shall be invested in Government obliga-tions; and

(2) shall earn interest at an annual rate of at least 5 percent.

(Pub. L. 97–258, Sept. 13, 1982, 96 Stat. 1052.)


Revised Section


9702 ......... 31:547a. R.S. § 3659.

The section is substituted for 31:547a for clarity and

consistency in the revised title.

§ 9703.1 Managerial accountability and flexibility

(a) Beginning with fiscal year 1999, the per-

formance plans required under section 1115 may include proposals to waive administrative proce-dural requirements and controls, including spec-ification of personnel staffing levels, limitations on compensation or remuneration, and prohibi-tions or restrictions on funding transfers among budget object classification 20 and subclassifica-tions 11, 12, 31, and 32 of each annual budget sub-mitted under section 1105, in return for specific individual or organization accountability to achieve a performance goal. In preparing and submitting the performance plan under section 1105(a)(29),2 the Director of the Office of Manage-ment and Budget shall review and may approve any proposed waivers. A waiver shall take effect at the beginning of the fiscal year for which the waiver is approved.

(b) Any such proposal under subsection (a) shall describe the anticipated effects on per-formance resulting from greater managerial or organizational flexibility, discretion, and au-thority, and shall quantify the expected im-provements in performance resulting from any waiver. The expected improvements shall be compared to current actual performance, and to the projected level of performance that would be achieved independent of any waiver.

(c) Any proposal waiving limitations on com-pensation or remuneration shall precisely ex-press the monetary change in compensation or remuneration amounts, such as bonuses or awards, that shall result from meeting, exceed-ing, or failing to meet performance goals.

(d) Any proposed waiver of procedural require-ments or controls imposed by an agency (other than the proposing agency or the Office of Man-agement and Budget) may not be included in a performance plan unless it is endorsed by the agency that established the requirement, and the endorsement included in the proposing agen-cy’s performance plan.

(e) A waiver shall be in effect for one or two years as specified by the Director of the Office of Management and Budget in approving the waiv-er. A waiver may be renewed for a subsequent year. After a waiver has been in effect for three consecutive years, the performance plan pre-pared under section 1115 may propose that a waiver, other than a waiver of limitations on compensation or remuneration, be made perma-nent.

(f) For purposes of this section, the definitions

under section 1115(f) 2 shall apply.

(Added Pub. L. 103–62, § 5(a), Aug. 3, 1993, 107 Stat. 289.)

A-8

TITLE 15—COMMERCE AND TRADE § 717

Sec.

717a. 717b.

Definitions. Exportation or importation of natural gas;

717b–1. 717c. 717c–1. 717d.

LNG terminals. State and local safety considerations. Rates and charges. Prohibition on market manipulation. Fixing rates and charges; determination of

717e. 717f.

cost of production or transportation. Ascertainment of cost of property. Construction, extension, or abandonment of

717g. 717h. 717i. 717j.

facilities. Accounts; records; memoranda. Rates of depreciation. Periodic and special reports. State compacts for conservation, transpor-

717k.

717l. 717m. 717n.

tation, etc., of natural gas. Officials dealing in securities. Complaints. Investigations by Commission. Process coordination; hearings; rules of pro-

717o.

cedure. Administrative powers of Commission; rules,

717p. 717q. 717r. 717s.717t.717t–1. 717t–2. 717u.

regulations, and orders. Joint boards. Appointment of officers and employees. Rehearing and review. Enforcement of chapter.General penalties.Civil penalty authority. Natural gas market transparency rules. Jurisdiction of offenses; enforcement of li-

717v. 717w. 717x. 717y.

abilities and duties. Separability. Short title. Conserved natural gas. Voluntary conversion of natural gas users to

717z. heavy fuel oil.

Emergency conversion of utilities and other

facilities.

§ 717. Regulation of natural gas companies

(a) Necessity of regulation in public interest As disclosed in reports of the Federal Trade

Commission made pursuant to S. Res. 83 (Seven-

tieth Congress, first session) and other reports

made pursuant to the authority of Congress, it

is declared that the business of transporting and

selling natural gas for ultimate distribution to

the public is affected with a public interest, and

that Federal regulation in matters relating to

the transportation of natural gas and the sale

thereof in interstate and foreign commerce is

necessary in the public interest.

(b) Transactions to which provisions of chapter applicable

The provisions of this chapter shall apply to

the transportation of natural gas in interstate

commerce, to the sale in interstate commerce of

natural gas for resale for ultimate public con-

sumption for domestic, commercial, industrial,

or any other use, and to natural-gas companies

engaged in such transportation or sale, and to

the importation or exportation of natural gas in

foreign commerce and to persons engaged in

such importation or exportation, but shall not

apply to any other transportation or sale of nat-

ural gas or to the local distribution of natural

gas or to the facilities used for such distribution

or to the production or gathering of natural gas.

(c) Intrastate transactions exempt from provi-sions of chapter; certification from State commission as conclusive evidence

The provisions of this chapter shall not apply

to any person engaged in or legally authorized

to engage in the transportation in interstate

commerce or the sale in interstate commerce for

resale, of natural gas received by such person

from another person within or at the boundary

of a State if all the natural gas so received is ul-

timately consumed within such State, or to any

facilities used by such person for such transpor-

tation or sale, provided that the rates and serv-

ice of such person and facilities be subject to

regulation by a State commission. The matters

exempted from the provisions of this chapter by

this subsection are declared to be matters pri-

marily of local concern and subject to regula-

tion by the several States. A certification from

such State commission to the Federal Power

Commission that such State commission has

regulatory jurisdiction over rates and service of

such person and facilities and is exercising such

jurisdiction shall constitute conclusive evidence

of such regulatory power or jurisdiction.

(d) Vehicular natural gas jurisdiction The provisions of this chapter shall not apply

to any person solely by reason of, or with re-

spect to, any sale or transportation of vehicular

natural gas if such person is—

(1) not otherwise a natural-gas company; or

(2) subject primarily to regulation by a

State commission, whether or not such State

commission has, or is exercising, jurisdiction

over the sale, sale for resale, or transportation

of vehicular natural gas.

(June 21, 1938, ch. 556, § 1, 52 Stat. 821; Mar. 27,

1954, ch. 115, 68 Stat. 36; Pub. L. 102–486, title IV,

§ 404(a)(1), Oct. 24, 1992, 106 Stat. 2879; Pub. L.

109–58, title III, § 311(a), Aug. 8, 2005, 119 Stat. 685.)

AMENDMENTS

2005—Subsec. (b). Pub. L. 109–58 inserted ‘‘and to the

importation or exportation of natural gas in foreign

commerce and to persons engaged in such

importation or exportation,’’ after ‘‘such

transportation or sale,’’. 1992—Subsec. (d). Pub. L. 102–486 added subsec. (d).

1954—Subsec. (c). Act Mar. 27, 1954, added subsec. (c).

TERMINATION OF FEDERAL POWER COMMISSION; TRANSFER OF FUNCTIONS

Federal Power Commission terminated and functions,

personnel, property, funds, etc., transferred to Sec-

retary of Energy (except for certain functions trans-

ferred to Federal Energy Regulatory Commission) by

sections 7151(b), 7171(a), 7172(a), 7291, and 7293 of Title

42, The Public Health and Welfare.

STATE LAWS AND REGULATIONS

Pub. L. 102–486, title IV, § 404(b), Oct. 24, 1992, 106 Stat.

2879, provided that: ‘‘The transportation or sale of nat-

ural gas by any person who is not otherwise a public

utility, within the meaning of State law—

‘‘(1) in closed containers; or

‘‘(2) otherwise to any person for use by such person

as a fuel in a self-propelled vehicle,

shall not be considered to be a transportation or sale

of natural gas within the meaning of any State law,

regu-lation, or order in effect before January 1, 1989.

This subsection shall not apply to any provision

of any State law, regulation, or order to the extent

that such provision has as its primary purpose the

protection of public safety.’’

EMERGENCY NATURAL GAS ACT OF 1977

Pub. L. 95–2, Feb. 2, 1977, 91 Stat. 4, authorized Presi-

dent to declare a natural gas emergency and to require

A-9

TITLE 15—COMMERCE AND TRADE § 717f

therein, and, when found necessary for rate-

making purposes, other facts which bear on the

determination of such cost or depreciation and

the fair value of such property.

(b) Inventory of property; statements of costs Every natural-gas company upon request shall

file with the Commission an inventory of all or

any part of its property and a statement of the

original cost thereof, and shall keep the Com-

mission informed regarding the cost of all addi-

tions, betterments, extensions, and new con-

struction.

(June 21, 1938, ch. 556, § 6, 52 Stat. 824.)

§ 717f. Construction, extension, or abandonmentof facilities

(a) Extension or improvement of facilities on order of court; notice and hearing

Whenever the Commission, after notice and

opportunity for hearing, finds such action nec-

essary or desirable in the public interest, it may

by order direct a natural-gas company to extend

or improve its transportation facilities, to es-

tablish physical connection of its transportation

facilities with the facilities of, and sell natural

gas to, any person or municipality engaged or

legally authorized to engage in the local dis-

tribution of natural or artificial gas to the pub-

lic, and for such purpose to extend its transpor-

tation facilities to communities immediately

adjacent to such facilities or to territory served

by such natural-gas company, if the Commission

finds that no undue burden will be placed upon

such natural-gas company thereby: Provided, That the Commission shall have no authority to

compel the enlargement of transportation facili-

ties for such purposes, or to compel such natu-

ral-gas company to establish physical connec-

tion or sell natural gas when to do so would im-

pair its ability to render adequate service to its

customers.

(b) Abandonment of facilities or services; ap-proval of Commission

No natural-gas company shall abandon all or

any portion of its facilities subject to the juris-

diction of the Commission, or any service ren-

dered by means of such facilities, without the

permission and approval of the Commission first

had and obtained, after due hearing, and a find-

ing by the Commission that the available supply

of natural gas is depleted to the extent that the

continuance of service is unwarranted, or that

the present or future public convenience or ne-

cessity permit such abandonment.

(c) Certificate of public convenience and neces-sity

(1)(A) No natural-gas company or person

which will be a natural-gas company upon com-

pletion of any proposed construction or exten-

sion shall engage in the transportation or sale of

natural gas, subject to the jurisdiction of the

Commission, or undertake the construction or

extension of any facilities therefor, or acquire or

operate any such facilities or extensions thereof,

unless there is in force with respect to such nat-

ural-gas company a certificate of public conven-

ience and necessity issued by the Commission

authorizing such acts or operations: Provided,

however, That if any such natural-gas company or predecessor in interest was bona fide engaged in transportation or sale of natural gas, subject to the jurisdiction of the Commission, on Feb-ruary 7, 1942, over the route or routes or within the area for which application is made and has so operated since that time, the Commission shall issue such certificate without requiring further proof that public convenience and neces-sity will be served by such operation, and with-out further proceedings, if application for such certificate is made to the Commission within ninety days after February 7, 1942. Pending the determination of any such application, the con-tinuance of such operation shall be lawful.

(B) In all other cases the Commission shall set

the matter for hearing and shall give such rea-

sonable notice of the hearing thereon to all in-

terested persons as in its judgment may be nec-

essary under rules and regulations to be pre-

scribed by the Commission; and the application

shall be decided in accordance with the proce-

dure provided in subsection (e) of this section

and such certificate shall be issued or denied ac-

cordingly: Provided, however, That the Commis-sion may issue a temporary certificate in cases of emergency, to assure maintenance of ade-quate service or to serve particular customers, without notice or hearing, pending the deter-mination of an application for a certificate, and may by regulation exempt from the require-ments of this section temporary acts or oper-ations for which the issuance of a certificate will not be required in the public interest.

(2) The Commission may issue a certificate of

public convenience and necessity to a natural-

gas company for the transportation in interstate

commerce of natural gas used by any person for

one or more high-priority uses, as defined, by

rule, by the Commission, in the case of— (A) natural gas sold by the producer to such

person; and (B) natural gas produced by such person.

(d) Application for certificate of public conven-ience and necessity

Application for certificates shall be made in

writing to the Commission, be verified under

oath, and shall be in such form, contain such in-

formation, and notice thereof shall be served

upon such interested parties and in such manner

as the Commission shall, by regulation, require.

(e) Granting of certificate of public convenience and necessity

Except in the cases governed by the provisos

contained in subsection (c)(1) of this section, a

certificate shall be issued to any qualified appli-

cant therefor, authorizing the whole or any part

of the operation, sale, service, construction, ex-

tension, or acquisition covered by the applica-

tion, if it is found that the applicant is able and

willing properly to do the acts and to perform

the service proposed and to conform to the pro-

visions of this chapter and the requirements,

rules, and regulations of the Commission there-

under, and that the proposed service, sale, oper-

ation, construction, extension, or acquisition, to

the extent authorized by the certificate, is or

will be required by the present or future public

convenience and necessity; otherwise such appli-

cation shall be denied. The Commission shall

A-10

TITLE 15—COMMERCE AND TRADE § 717g

have the power to attach to the issuance of the

certificate and to the exercise of the rights

granted thereunder such reasonable terms and

conditions as the public convenience and neces-

sity may require.

(f) Determination of service area; jurisdiction of transportation to ultimate consumers

(1) The Commission, after a hearing had upon

its own motion or upon application, may deter-

mine the service area to which each authoriza-

tion under this section is to be limited. Within

such service area as determined by the Commis-

sion a natural-gas company may enlarge or ex-

tend its facilities for the purpose of supplying

increased market demands in such service area

without further authorization; and

(2) If the Commission has determined a service

area pursuant to this subsection, transportation

to ultimate consumers in such service area by

the holder of such service area determination,

even if across State lines, shall be subject to the

exclusive jurisdiction of the State commission

in the State in which the gas is consumed. This

section shall not apply to the transportation of

natural gas to another natural gas company.

(g) Certificate of public convenience and neces-sity for service of area already being served

Nothing contained in this section shall be con-

strued as a limitation upon the power of the

Commission to grant certificates of public con-

venience and necessity for service of an area al-

ready being served by another natural-gas com-

pany.

(h) Right of eminent domain for construction of pipelines, etc.

When any holder of a certificate of public con-

venience and necessity cannot acquire by con-

tract, or is unable to agree with the owner of

property to the compensation to be paid for, the

necessary right-of-way to construct, operate,

and maintain a pipe line or pipe lines for the

transportation of natural gas, and the necessary

land or other property, in addition to right-of-

way, for the location of compressor stations,

pressure apparatus, or other stations or equip-

ment necessary to the proper operation of such

pipe line or pipe lines, it may acquire the same

by the exercise of the right of eminent domain

in the district court of the United States for the

district in which such property may be located,

or in the State courts. The practice and proce-

dure in any action or proceeding for that pur-

pose in the district court of the United States

shall conform as nearly as may be with the prac-

tice and procedure in similar action or proceed-

ing in the courts of the State where the property

is situated: Provided, That the United States dis-trict courts shall only have jurisdiction of cases when the amount claimed by the owner of the property to be condemned exceeds $3,000.

(June 21, 1938, ch. 556, § 7, 52 Stat. 824; Feb. 7,

1942, ch. 49, 56 Stat. 83; July 25, 1947, ch. 333, 61

Stat. 459; Pub. L. 95–617, title VI, § 608, Nov. 9,

1978, 92 Stat. 3173; Pub. L. 100–474, § 2, Oct. 6, 1988,

102 Stat. 2302.)

AMENDMENTS

1988—Subsec. (f). Pub. L. 100–474 designated existing

provisions as par. (1) and added par. (2).

1978—Subsec. (c). Pub. L. 95–617, § 608(a), (b)(1), des-ignated existing first paragraph as par. (1)(A) and exist-ing second paragraph as par. (1)(B) and added par. (2).

Subsec. (e). Pub. L. 95–617, § 608(b)(2), substituted ‘‘subsection (c)(1)’’ for ‘‘subsection (c)’’.

1947—Subsec. (h). Act July 25, 1947, added subsec. (h). 1942—Subsecs. (c) to (g). Act Feb. 7, 1942, struck out

subsec. (c), and added new subsecs. (c) to (g).


Pub. L. 100–474, § 3, Oct. 6, 1988, 102 Stat. 2302, provided that: ‘‘The provisions of this Act [amending this sec-tion and enacting provisions set out as a note under section 717w of this title] shall become effective one hundred and twenty days after the date of enactment [Oct. 6, 1988].’’

TRANSFER OF FUNCTIONS

Enforcement functions of Secretary or other official in Department of Energy and Commission, Commis-sioners, or other official in Federal Energy Regulatory Commission related to compliance with certificates of public convenience and necessity issued under this sec-tion with respect to pre-construction, construction, and initial operation of transportation system for Ca-nadian and Alaskan natural gas transferred to Federal Inspector, Office of Federal Inspector for Alaska Natu-ral Gas Transportation System, until first anniversary of date of initial operation of Alaska Natural Gas Transportation System, see Reorg. Plan No. 1 of 1979, §§ 102(d), 203(a), 44 F.R. 33663, 33666, 93 Stat. 1373, 1376, ef-fective July 1, 1979, set out under section 719e of this title. Office of Federal Inspector for the Alaska Natural Gas Transportation System abolished and functions and authority vested in Inspector transferred to Sec-retary of Energy by section 3012(b) of Pub. L. 102–486, set out as an Abolition of Office of Federal Inspector note under section 719e of this title. Functions and au-thority vested in Secretary of Energy subsequently transferred to Federal Coordinator for Alaska Natural Gas Transportation Projects by section 720d(f) of this title.

§ 717g. Accounts; records; memoranda

(a) Rules and regulations for keeping and pre-serving accounts, records, etc.

Every natural-gas company shall make, keep, and preserve for such periods, such accounts, records of cost-accounting procedures, cor-respondence, memoranda, papers, books, and other records as the Commission may by rules and regulations prescribe as necessary or appro-priate for purposes of the administration of this

chapter: Provided, however, That nothing in this chapter shall relieve any such natural-gas com-pany from keeping any accounts, memoranda, or records which such natural-gas company may be required to keep by or under authority of the laws of any State. The Commission may pre-scribe a system of accounts to be kept by such natural-gas companies, and may classify such natural-gas companies and prescribe a system of accounts for each class. The Commission, after notice and opportunity for hearing, may deter-mine by order the accounts in which particular outlays or receipts shall be entered, charged, or credited. The burden of proof to justify every ac-counting entry questioned by the Commission shall be on the person making, authorizing, or requiring such entry, and the Commission may suspend a charge or credit pending submission of satisfactory proof in support thereof.

(b) Access to and inspection of accounts and records

The Commission shall at all times have access to and the right to inspect and examine all ac-

A-11

TITLE 15—COMMERCE AND TRADE § 717r

neys, examiners, and experts as may be necessary for

carrying out its functions under this chapter ‘‘without

regard to the provisions of other laws applicable to the

employment and compensation of officers and employ-

ees of the United States’’ are omitted as obsolete and

superseded.

As to the compensation of such personnel, sections

1202 and 1204 of the Classification Act of 1949, 63

Stat. 972, 973, repealed the Classification Act of 1923

and all other laws or parts of laws inconsistent with

the 1949 Act. The Classification Act of 1949 was

repealed by Pub. L. 89–554, Sept. 6, 1966, § 8(a), 80 Stat.

632, and reenacted as chapter 51 and subchapter III of

chapter 53 of Title 5, Government Organization and

Employees. Section 5102 of Title 5 contains the

applicability provisions of the 1949 Act, and section

5103 of Title 5 authorizes the Office of Personnel

Management to determine the ap-plicability to

specific positions and employees. Such appointments are now subject to the civil serv-

ice laws unless specifically excepted by those laws or

by laws enacted subsequent to Executive Order 8743,

Apr. 23, 1941, issued by the President pursuant to the

Act of Nov. 26, 1940, ch. 919, title I, § 1, 54 Stat. 1211,

which covered most excepted positions into the classi-

fied (competitive) civil service. The Order is set out as

a note under section 3301 of Title 5.

‘‘Chapter 51 and subchapter III of chapter 53 of title

5’’ substituted in text for ‘‘the Classification Act of

1949, as amended’’ on authority of Pub. L. 89–554, § 7(b),

Sept. 6, 1966, 80 Stat. 631, the first section of which en-

acted Title 5.

AMENDMENTS

1949—Act Oct. 28, 1949, substituted ‘‘Classification

Act of 1949’’ for ‘‘Classification Act of 1923’’.

REPEALS

Act Oct. 28, 1949, ch. 782, cited as a credit to this sec-

tion, was repealed (subject to a savings clause) by Pub.

L. 89–554, Sept. 6, 1966, § 8, 80 Stat. 632, 655.

§ 717r. Rehearing and review

(a) Application for rehearing; time Any person, State, municipality, or State

commission aggrieved by an order issued by the

Commission in a proceeding under this chapter

to which such person, State, municipality, or

State commission is a party may apply for a re-

hearing within thirty days after the issuance of

such order. The application for rehearing shall

set forth specifically the ground or grounds

upon which such application is based. Upon such

application the Commission shall have power to

grant or deny rehearing or to abrogate or mod-

ify its order without further hearing. Unless the

Commission acts upon the application for re-

hearing within thirty days after it is filed, such

application may be deemed to have been denied.

No proceeding to review any order of the Com-

mission shall be brought by any person unless

such person shall have made application to the

Commission for a rehearing thereon. Until the

record in a proceeding shall have been filed in a

court of appeals, as provided in subsection (b) of

this section, 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.

(b) Review of Commission order Any party to a proceeding under this chapter

aggrieved by an order issued by the Commission

in such proceeding may obtain a review of such

order in the court of appeals of the United

States for any circuit wherein the natural-gas

company to which the order relates is located or

has its principal place of business, or in the

United States Court of Appeals for the District

of Columbia, by filing in such court, within

sixty days after the order of the Commission

upon the application for rehearing, a written pe-

tition praying that the order of the Commission

be modified or set aside in whole or in part. A

copy of such petition shall forthwith be trans-

mitted by the clerk of the court to any member

of the Commission and thereupon the Commis-

sion shall file with the court the record upon

which the order complained of was entered, as

provided in section 2112 of title 28. Upon the fil-

ing of such petition such court shall have juris-

diction, which upon the filing of the record with

it shall be exclusive, to affirm, modify, or set

aside such order in whole or in part. No objec-

tion to the order of the Commission shall be

considered by the court unless such objection

shall have been urged before the Commission in

the application for rehearing unless there is rea-

sonable ground for failure so to do. The finding

of the Commission as to the facts, if supported

by substantial evidence, shall be conclusive. If

any party shall apply to the court for leave to

adduce additional evidence, and shall show to

the satisfaction of the court that such addi-

tional evidence is material and that there were

reasonable grounds for failure to adduce such

evidence in the proceedings before the Commis-

sion, the court may order such additional evi-

dence to be taken before the Commission and to

be adduced upon the hearing in such manner and

upon such terms and conditions as to the court

may seem proper. The Commission may modify

its findings as to the facts by reason of the addi-

tional evidence so taken, and it shall file with

the court such modified or new findings, which

is supported by substantial evidence, shall be

conclusive, and its recommendation, if any, for

the modification or setting aside of the original

order. The judgment and decree of the court, af-

firming, modifying, or setting aside, in whole or

in part, any such order of the Commission, shall

be final, subject to review by the Supreme Court

of the United States upon certiorari or certifi-

cation as provided in section 1254 of title 28.

(c) Stay of Commission order The filing of an application for rehearing

under subsection (a) of this section shall not,

unless specifically ordered by the Commission,

operate as a stay of the Commission’s order. The

commencement of proceedings under subsection

(b) of this section shall not, unless specifically

ordered by the court, operate as a stay of the

Commission’s order.

(d) Judicial review (1) In general

The United States Court of Appeals for the

circuit in which a facility subject to section

717b of this title or section 717f of this title is

proposed to be constructed, expanded, or oper-

ated shall have original and exclusive jurisdic-

tion over any civil action for the review of an

order or action of a Federal agency (other

than the Commission) or State administrative

agency acting pursuant to Federal law to

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(c) Options of Secretary; final agency action Following publication of the Commission’s

recommendations the Secretary shall have the

option of—

(1) issuing a final rule or statement in the

form initially proposed by the Secretary if the

Commission has concurred in such rule pursu-

ant to subsection (b)(1) of this section;

(2) issuing a final rule or statement in

amended form so that the rule conforms in all

respects with the changes proposed by the

Commission if the Commission has concurred

in such rule or statement pursuant to sub-

section (b)(2) of this section; or

(3) ordering that the rule shall not be issued.

The action taken by the Secretary pursuant to

this subsection shall constitute a final agency

action for purposes of section 704 of title 5.


586.)

CODIFICATION

In subsec. (a), ‘‘section 60501 of title 49’’ substituted

for reference to section 306 of this Act, meaning section

306 of Pub. L. 95–91 [42 U.S.C. 7155], and ‘‘section 60502

of title 49’’ substituted for reference to section 402(b),

meaning section 402(b) of Pub. L. 95–91 [42 U.S.C.

7172(b)] on authority of Pub. L. 103–272, § 6(b), July 5,

1994, 108 Stat. 1378, the first section of which enacted

subtitles II, III, and V to X of Title 49, Transportation.

§ 7175. Right of Secretary to intervene in Com-mission proceedings

The Secretary may as a matter of right inter-

vene or otherwise participate in any proceeding

before the Commission. The Secretary shall

comply with rules of procedure of general appli-

cability governing the timing of intervention or

participation in such proceeding or activity and,

upon intervening or participating therein, shall

comply with rules of procedure of general appli-

cability governing the conduct thereof. The

intervention or participation of the Secretary in

any proceeding or activity shall not affect the

obligation of the Commission to assure proce-

dure fairness to all participants.


586.)

§ 7176. Reorganization

For the purposes of chapter 9 of title 5 the

Commission shall be deemed to be an independ-

ent regulatory agency.


586.)

§ 7177. Access to information

(a) The Secretary, each officer of the Depart-

ment, and each Federal agency shall provide to

the Commission, upon request, such existing in-

formation in the possession of the Department

or other Federal agency as the Commission de-

termines is necessary to carry out its respon-

sibilities under this chapter.

(b) The Secretary, in formulating the informa-

tion to be requested in the reports or investiga-

tions under section 825c and section 825j of title

16 and section 717i and section 717j of title 15

shall include in such reports and investigations

such specific information as requested by the

Federal Energy Regulatory Commission and

copies of all reports, information, results of in-

vestigations and data under said sections shall

be furnished by the Secretary to the Federal En-

ergy Regulatory Commission.


587.)

REFERENCES IN TEXT

This chapter, referred to in subsec. (a), was in the

original ‘‘this Act’’, meaning Pub. L. 95–91, Aug. 4, 1977,

91 Stat. 565, as amended, known as the Department of

Energy Organization Act, which is classified prin-

cipally to this chapter. For complete classification of

this Act to the Code, see Short Title note set out under

section 7101 of this title and Tables.

§ 7178. Federal Energy Regulatory Commissionfees and annual charges

(a) In general (1) Except as provided in paragraph (2) and be-

ginning in fiscal year 1987 and in each fiscal year

thereafter, the Federal Energy Regulatory Com-

mission shall, using the provisions of this sec-

tion and authority provided by other laws, as-

sess and collect fees and annual charges in any

fiscal year in amounts equal to all of the costs

incurred by the Commission in that fiscal year. (2) The provisions of this section shall not af-

fect the authority, requirements, exceptions, or

limitations in sections 803(e) and 823a(e) of title

16.

(b) Basis for assessments The fees or annual charges assessed shall be

computed on the basis of methods that the Com-

mission determines, by rule, to be fair and equi-

table.

(c) Estimates The Commission may assess fees and charges

under this section by making estimates based on

data available to the Commission at the time of

assessment.

(d) Time of payment The Commission shall provide that the fees

and charges assessed under this section shall be

paid by the end of the fiscal year for which they

were assessed.

(e) Adjustments The Commission shall, after the completion of

a fiscal year, make such adjustments in the as-

sessments for such fiscal year as may be nec-

essary to eliminate any overrecovery or under-

recovery of its total costs, and any overcharging

or undercharging of any person.

(f) Use of funds All moneys received under this section shall

be credited to the general fund of the Treasury.

(g) Waiver The Commission may waive all or part of any

fee or annual charge assessed under this section

for good cause shown.

(Pub. L. 99–509, title III, § 3401, Oct. 21, 1986, 100

Stat. 1890.)

CODIFICATION

Section was enacted as part of the Omnibus Budget

Reconciliation Act of 1986, and not as part of the De-

A-13


added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919,

known as the Atomic Energy Act of 1954, which is clas-

sified principally to this chapter. For complete classi-

fication of this Act to the Code, see Short Title

note set out under section 2011 of this title and Tables.

EFFECTIVE DATE

Pub. L. 109–58, title VI, § 656(c), Aug. 8, 2005, 119 Stat.

814, provided that: ‘‘The amendment made by sub-

section (a) [enacting this section] shall take effect

upon the issuance of regulations under subsection (b)

[set out below], except that the background check re-

quirement shall become effective on a date established

by the Commission.’’ [For issuance of regulations effec-

tive Feb. 23, 2007, see 72 F.R. 3025.]

REGULATIONS

Pub. L. 109–58, title VI, § 656(b), Aug. 8, 2005, 119 Stat.

814, provided that: ‘‘Not later than 1 year after the date

of the enactment of this Act [Aug. 8, 2005], and from

time to time thereafter as it considers necessary, the

Nuclear Regulatory Commission shall issue regulations

identifying radioactive materials or classes of individ-

uals that, consistent with the protection of public

health and safety and the common defense and

secu-rity, are appropriate exceptions to the

requirements of section 170D [probably means 170I] of

the Atomic En-ergy Act of 1954 [42 U.S.C. 2210i], as

added by subsection (a) of this section.’’

EFFECT ON OTHER LAW

Pub. L. 109–58, title VI, § 656(d), Aug. 8, 2005, 119 Stat.

814, provided that: ‘‘Nothing in this section [enacting

this section and provisions set out as notes under this

section] or the amendment made by this section shall

waive, modify, or affect the application of chapter 51 of

title 49, United States Code, part A of subtitle V of

title 49, United States Code, part B of subtitle VI of

title 49, United States Code, and title 23, United

States Code.’’ § 2211. Payment of claims or judgments for dam-

age resulting from nuclear incident involving nuclear reactor of United States warship; ex-ception; terms and conditions

It is the policy of the United States that it

will pay claims or judgments for bodily injury,

death, or damage to or loss of real or personal

property proven to have resulted from a nuclear

incident involving the nuclear reactor of a

United States warship: Provided, That the in-

jury, death, damage, or loss was not caused by

the act of an armed force engaged in combat or

as a result of civil insurrection. The President

may authorize, under such terms and conditions

as he may direct, the payment of such claims or

judgments from any contingency funds available

to the Government or may certify such claims

or judgments to the Congress for appropriation

of the necessary funds.

(Pub. L. 93–513, Dec. 6, 1974, 88 Stat. 1611.)

CODIFICATION

Section was not enacted as part of the Atomic En-

ergy Act of 1954 which comprises this chapter.

EX. ORD. NO. 11918. COMPENSATION FOR DAMAGES IN-

VOLVING NUCLEAR REACTORS OF UNITED STATES WAR-SHIPS

Ex. Ord. No. 11918, eff. June 1, 1976, 41 F.R. 22329,

pro-vided:

By virtue of the authority vested in me by the joint

resolution approved December 6, 1974 (Public Law

93–513, 88 Stat. 1610, 42 U.S.C. 2211), and by section 301

of title 3 of the United States Code, and as President of

the United States of America, in order that prompt,

adequate and effective compensation will be provided

in the unlikely event of injury or damage resulting

from a nuclear incident involving the nuclear reactor

of a United States warship, it is hereby ordered as fol-

lows:

SECTION 1. (a) With respect to the administrative set-

tlement of claims or judgments for bodily injury,

death, or damage to or loss of real or personal property

proven to have resulted from a nuclear incident involv-

ing the nuclear reactor of a United States warship, the

Secretary of Defense is designated and empowered to

authorize, in accord with Public Law 93–513 [this sec-

tion], the payment, under such terms and conditions as

he may direct, of such claims and judgments from con-

tingency funds available to the Department of Defense.

(b) The Secretary of Defense shall, when he considers

such action appropriate, certify claims or judgments

described in subsection (a) and transmit to the Director

of the Office of Management and Budget his recom-

mendation with respect to appropriation by the Con-

gress of such additional sums as may be necessary.

SEC. 2. The provisions of section 1 shall not be

deemed to replace, alter, or diminish, the statutory and

other functions vested in the Attorney General, or the

head of any other agency, with respect to litigation

against the United States and judgments and com-

promise settlements arising therefrom.

SEC. 3. The functions herein delegated shall be exer-

cised in consultation with the Secretary of State in the

case of any incident giving rise to a claim of a foreign

country or national thereof, and international negotia-

tions relating to Public Law 93–513 [this section], shall

be performed by or under the authority of the Sec-

retary of State.

GERALD R. FORD.

§ 2212. Transferred

CODIFICATION

Section, Pub. L. 101–510, div. C, title XXXI, § 3141,

Nov. 5, 1990, 104 Stat. 1837, which related to contractor

liability for injury or loss of property arising out of

atomic weapons testing programs, was renumbered sec-

tion 4803 of Pub. L. 107–314, the Bob Stump National De-

fense Authorization Act for Fiscal Year 2003, by Pub. L.

108–136, div. C, title XXXI, § 3141(k)(4)(A)–(C), Nov. 24,

2003, 117 Stat. 1783, and transferred to section 2783 of

Title 50, War and National Defense.

PRIOR PROVISIONS

A prior section 2212, Pub. L. 98–525, title XVI, § 1631,

Oct. 19, 1984, 98 Stat. 2646, related to contractor liabil-

ity for injury or loss of property arising out of atomic

weapons testing programs, prior to repeal by Pub. L.

101–426, § 13, as added Pub. L. 101–510, div. C, title XXXI,

§ 3140, Nov. 5, 1990, 104 Stat. 1837.

§ 2213. Repealed. Pub. L. 109–58, title VI, § 637(b),Aug. 8, 2005, 119 Stat. 791

Section, Pub. L. 99–272, title VII, § 7601, Apr. 7, 1986,

100 Stat. 146; Pub. L. 100–203, title V, § 5601, Dec. 22, 1987,

101 Stat. 1330–275; Pub. L. 101–239, title III, § 3201, Dec.

19, 1989, 103 Stat. 2132; Pub. L. 101–508, title VI, § 6101(e),

Nov. 5, 1990, 104 Stat. 1388–299, related to assessment

and collection of annual charges from Nuclear Regu-

latory Commission licensees.

EFFECTIVE DATE OF REPEAL

Repeal effective Oct. 1, 2006, see section 637(c) of Pub.

L. 109–58, set out as an Effective Date of 2005

Amend-ment note under section 2214 of this title.

§ 2214. NRC user fees and annual charges

(a) Annual assessment (1) In general

The Nuclear Regulatory Commission (in this

section referred to as the ‘‘Commission’’) shall

A-14


annually assess and collect such fees and

charges as are described in subsections (b) and

(c) of this section.

(2) First assessment The first assessment of fees under subsection

(b) of this section and annual charges under

subsection (c) of this section shall be made not

later than September 30, 1991.

(b) Fees for service or thing of value Pursuant to section 9701 of title 31, any person

who receives a service or thing of value from the

Commission shall pay fees to cover the Commis-

sion’s costs in providing any such service or

thing of value.

(c) Annual charges (1) Persons subject to charge

Except as provided in paragraph (4), any li-

censee or certificate holder of the Commission

may be required to pay, in addition to the fees

set forth in subsection (b) of this section, an

annual charge.

(2) Aggregate amount of charges (A) In general

The aggregate amount of the annual

charges collected from all licensees and cer-

tificate holders in a fiscal year shall equal

an amount that approximates the percent-

ages of the budget authority of the Commis-

sion for the fiscal year stated in subpara-

graph (B), less—

(i) amounts collected under subsection

(b) of this section during the fiscal year;

(ii) amounts appropriated to the Com-

mission from the Nuclear Waste Fund for

the fiscal year;

(iii) amounts appropriated to the Com-

mission for the fiscal year for implementa-

tion of section 3116 of the Ronald W.

Reagan National Defense Authorization

Act for Fiscal Year 2005; and

(iv) amounts appropriated to the Com-

mission for homeland security activities of

the Commission for the fiscal year, except

for the costs of fingerprinting and back-

ground checks required by section 2169 of

this title and the costs of conducting secu-

rity inspections.

(B) Percentages The percentages referred to in subpara-

graph (A) are—

(i) 98 percent for fiscal year 2001;

(ii) 96 percent for fiscal year 2002;

(iii) 94 percent for fiscal year 2003;

(iv) 92 percent for fiscal year 2004; and

(v) 90 percent for fiscal year 2005 and

each fiscal year thereafter.

(3) Amount per licensee The Commission shall establish, by rule, a

schedule of charges fairly and equitably allo-

cating the aggregate amount of charges de-

scribed in paragraph (2) among licensees. To

the maximum extent practicable, the charges

shall have a reasonable relationship to the

cost of providing regulatory services and may

be based on the allocation of the Commission’s

resources among licensees or classes of li-

censees.

(4) Exemption (A) In general

Paragraph (1) shall not apply to the holder

of any license for a federally owned research

reactor used primarily for educational train-

ing and academic research purposes.

(B) Research reactor For purposes of subparagraph (A), the term

‘‘research reactor’’ means a nuclear reactor

that—

(i) is licensed by the Nuclear Regulatory

Commission under section 2134(c) of this

title for operation at a thermal power

level of 10 megawatts or less; and

(ii) if so licensed for operation at a ther-

mal power level of more than 1 megawatt,

does not contain—

(I) a circulating loop through the core

in which the licensee conducts fuel

experiments;

(II) a liquid fuel loading; or

(III) an experimental facility in the

core in excess of 16 square inches in

cross-section.

(d) ‘‘Nuclear Waste Fund’’ defined As used in this section, the term ‘‘Nuclear

Waste Fund’’ means the fund established pursu-

ant to section 10222(c) of this title.

(Pub. L. 101–508, title VI, § 6101, Nov. 5, 1990, 104

Stat. 1388–298; Pub. L. 102–486, title XXIX,

§ 2903(a), Oct. 24, 1992, 106 Stat. 3125; Pub. L.

103–66, title VII, § 7001, Aug. 10, 1993, 107 Stat. 401;

Pub. L. 105–245, title V, § 505, Oct. 7, 1998, 112

Stat. 1856; Pub. L. 106–60, title VI, § 604, Sept. 29,

1999, 113 Stat. 501; Pub. L. 106–377, § 1(a)(2) [title

VIII], Oct. 27, 2000, 114 Stat. 1441, 1441A–86; Pub.

L. 109–58, title VI, § 637(a), Aug. 8, 2005, 119 Stat.

791; Pub. L. 109–103, title IV, Nov. 19, 2005, 119

Stat. 2283.)

REFERENCES IN TEXT

Section 3116 of the Ronald W. Reagan National De-

fense Authorization Act for Fiscal Year 2005, referred

to in subsec. (c)(2)(A)(iii), is section 3116 of Pub. L.

108–375, which is set out as a note under section 2602 of

Title 50, War and National Defense.

CODIFICATION

Section is comprised of section 6101 of Pub. L. 101–508.

Subsec. (e) of section 6101 of Pub. L. 101–508 amended

former section 2213 of this title.

Section was enacted as part of the Omnibus Budget

Reconciliation Act of 1990, and not as part of the Atom-

ic Energy Act of 1954 which comprises this chapter.

AMENDMENTS

2005—Subsec. (a)(1). Pub. L. 109–58, § 637(a)(1)(A), sub-

stituted ‘‘The’’ for ‘‘Except as provided in paragraph

(3), the’’.

Subsec. (a)(3). Pub. L. 109–58, § 637(a)(1)(B), struck out

heading and text of par. (3). Text read as follows: ‘‘The

last assessment of annual charges under subsection (c)

of this section shall be made not later than September

20, 2005.’’

Subsec. (c)(2)(A)(iii), (iv). Pub. L. 109–58,

§ 637(a)(2)(A)–(C), added cls. (iii) and (iv).

Subsec. (c)(2)(B)(v). Pub. L. 109–58, § 637(a)(2)(D),

amended cl. (v) generally. Prior to amendment, cl. (v)

read as follows: ‘‘90 percent for fiscal year 2005 and fis-

cal year 2006.’’

Pub. L. 109–103 inserted ‘‘and fiscal year 2006’’ before

period at end.

A-15

TITLE 47—TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS § 159

1992—Subsec. (g). Pub. L. 102–538 in Schedule

of Charges added twenty-second category, relating

to Low-Earth Orbit Satellite Systems, under

heading ‘‘COMMON CARRIER SERVICES’’, and

substituted ‘‘75.00’’ for ‘‘360.00’’ in item 3.c., relating

to inspection of ves-sels under the Great Lakes

Agreement, under heading ‘‘MISCELLANEOUS CHARGES’’.

1989—Subsec. (a). Pub. L. 101–239, § 3001(b)(1), struck

out at end ‘‘The Schedule of Charges established under

this subsection shall be implemented not later than 360

days after April 7, 1986.’’

Subsec. (b)(1). Pub. L. 101–239, § 3001(b)(2), substituted

‘‘October 1, 1991’’ for ‘‘April 1, 1987’’.

Subsec. (d)(1). Pub. L. 101–239, § 3001(b)(3), substituted

‘‘(A) to governmental entities and nonprofit entities li-

censed in the following radio services:’’ for ‘‘to the fol-

lowing radio services:’’ and inserted ‘‘(B)’’ after ‘‘Emer-

gency Radio, or’’.

Subsec. (g). Pub. L. 101–239, § 3001(a), added subsec. (g).

1988—Subsec. (b)(1). Pub. L. 100–594 substituted ‘‘two

years after April 1, 1987,’’ for ‘‘two years after April 7,

1986,’’.


Section 3001(c) of Pub. L. 101–239 provided that: ‘‘The

amendments made by this section [amending this sec-

tion] shall take effect on the date of enactment of this

Act [Dec. 19, 1989], and the Schedule of Charges

re-quired by the amendment made by subsection (a)

of this section shall be implemented not later than

150 days after the date of enactment of this Act.’’

SCHEDULE OF CHARGES

Section 5002(f) of Pub. L. 99–272 established the

Sched-ule of Charges which the Federal

Communications Commission is required to prescribe

pursuant to subsec. (a) of this section. See subsec.

(g) of this section as added by Pub. L. 101–239.

§ 159. Regulatory fees

(a) General authority (1) Recovery of costs

The Commission, in accordance with this

section, shall assess and collect regulatory

fees to recover the costs of the following regu-

latory activities of the Commission: enforce-

ment activities, policy and rulemaking activi-

ties, user information services, and inter-

national activities.

(2) Fees contingent on appropriations The fees described in paragraph (1) of this

subsection shall be collected only if, and only

in the total amounts, required in Appropria-

tions Acts.

(b) Establishment and adjustment of regulatory fees

(1) In general The fees assessed under subsection (a) of this

section shall—

(A) be derived by determining the full-time

equivalent number of employees performing

the activities described in subsection (a) of

this section within the Private Radio Bu-

reau, Mass Media Bureau, Common Carrier

Bureau, and other offices of the Commission,

adjusted to take into account factors that

are reasonably related to the benefits pro-

vided to the payor of the fee by the Commis-

sion’s activities, including such factors as

service area coverage, shared use versus ex-

clusive use, and other factors that the Com-

mission determines are necessary in the pub-

lic interest;

(B) be established at amounts that will re-sult in collection, during each fiscal year, of an amount that can reasonably be expected to equal the amount appropriated for such fiscal year for the performance of the activi-ties described in subsection (a) of this sec-tion; and

(C) until adjusted or amended by the Com-mission pursuant to paragraph (2) or (3), be the fees established by the Schedule of Regu-latory Fees in subsection (g) of this section.

(2) Mandatory adjustment of schedule For any fiscal year after fiscal year 1994, the

Commission shall, by rule, revise the Schedule of Regulatory Fees by proportionate increases or decreases to reflect, in accordance with paragraph (1)(B), changes in the amount ap-propriated for the performance of the activi-ties described in subsection (a) of this section for such fiscal year. Such proportionate in-creases or decreases shall—

(A) be adjusted to reflect, within the over-all amounts described in appropriations Acts under the authority of paragraph (1)(A), un-expected increases or decreases in the num-ber of licensees or units subject to payment of such fees; and

(B) be established at amounts that will re-sult in collection of an aggregate amount of fees pursuant to this section that can rea-sonably be expected to equal the aggregate amount of fees that are required to be col-lected by appropriations Acts pursuant to paragraph (1)(B).

Increases or decreases in fees made by adjust-ments pursuant to this paragraph shall not be subject to judicial review. In making adjust-ments pursuant to this paragraph the Commis-sion may round such fees to the nearest $5 in the case of fees under $1,000, or to the nearest $25 in the case of fees of $1,000 or more.

(3) Permitted amendments In addition to the adjustments required by

paragraph (2), the Commission shall, by regu-lation, amend the Schedule of Regulatory Fees if the Commission determines that the Sched-ule requires amendment to comply with the requirements of paragraph (1)(A). In making such amendments, the Commission shall add, delete, or reclassify services in the Schedule to reflect additions, deletions, or changes in the nature of its services as a consequence of Commission rulemaking proceedings or changes in law. Increases or decreases in fees made by amendments pursuant to this para-graph shall not be subject to judicial review.

(4) Notice to Congress The Commission shall—

(A) transmit to the Congress notification of any adjustment made pursuant to para-graph (2) immediately upon the adoption of such adjustment; and

(B) transmit to the Congress notification of any amendment made pursuant to para-graph (3) not later than 90 days before the ef-fective date of such amendment.

(c) Enforcement (1) Penalties for late payment

The Commission shall prescribe by regula-tion an additional charge which shall be as-

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18 CFR Ch. I (4–1–15 Edition) § 9.10

the payment of annual charges which

accrue prior to the date of transfer. (b) When the Commission shall have

approved the transfer of the license, its

order of approval shall be forwarded to

the transferee for acknowledgment of

acceptance. Unless application for re-

hearing is filed, or unless the order is

stayed by the Commission, the order

shall become final thirty (30) days from

date of issuance and the acknowledg-

ment of acceptance shall be filed in

triplicate with the Commission within

sixty (60) days from date of issuance

accompanied by a certified copy of the

deed of conveyance or other instru-

ment evidencing transfer of the prop-

erty under license, together with evi-

dence of the recording thereof.

[Order 175, 19 FR 5217, Aug. 18, 1954]

APPLICATION FOR LEASE OF PROJECT

PROPERTY

§ 9.10 Filing.Any licensee desiring to lease the

project property covered by a license or

any part thereof, where the lessee is

granted the exclusive occupancy, pos-

session, or use of project works for pur-

poses of generating, transmitting, or

distributing power, and the person, as-

sociation, or corporation, State, or mu-

nicipality desiring to acquire the

project property by lease, must file the

proposed lease together with the appli-

cation in accordance with § 4.32(b)(1) of

this chapter. The application and the

Commission’s action on it will, in gen-

eral, be subject to the provisions of

§§ 9.1 through 9.3.

[Order 737, 75 FR 43403, July 26, 2010]

PART 11—ANNUAL CHARGES UNDER PART I OF THE FEDERAL POWER ACT

Subpart A—Charges for Costs of Adminis-tration, Use of Tribal Lands and Other Government Lands, and Use of Gov-ernment Dams

Sec.

11.1 Costs of administration.

11.2 Use of government lands.

11.3 Use of government dams, excluding

pumped storage projects.

11.4 Use of government dams for pumped

storage projects, and use of tribal lands.

11.5 Exemption of minor projects. 11.6 Exemption of State and municipal li-

censees and exemptees. 11.7 Effective date. 11.8 Adjustment of annual charges.

Subpart B—Charges for Headwater Benefits

11.10 General provision; waiver and exemp-

tion; definitions. 11.11 Energy gains method of determining

headwater benefits charges. 11.12 Determination of section 10(f) costs. 11.13 Energy gains calculations. 11.14 Procedures for establishing charges

without an energy gains investigation. 11.15 Procedures for determining charges by

energy gains investigation. 11.16 Filing requirements. 11.17 Procedures for payment of charges and

costs.

Subpart C—General Procedures

11.20 Time for payment. 11.21 Penalties.

APPENDIX A TO PART 11—FEE SCHEDULE FOR

FY 2015

AUTHORITY: 16 U.S.C. 792–828c; 42 U.S.C.

7101–7352.

Subpart A—Charges for Costs of Administration, Use of Tribal Lands and Other Government Lands, and Use of Govern-ment Dams

§ 11.1 Costs of administration.(a) Authority. Pursuant to section

10(e) of the Federal Power Act and sec-tion 3401 of the Omnibus Budget Rec-

onciliation Act of 1986, the Commission

will assess reasonable annual charges

against licensees and exemptees to re-

imburse the United States for the costs

of administration of the Commission’s

hydropower regulatory program. (b) Scope. The annual charges under

this section will be charged to and allo-

cated among: (1) All licensees of projects of more

than 1.5 megawatts of installed capac-

ity; and (2) All holders of exemptions under

either section 30 of the Federal Power

Act or sections 405 and 408 of the Pub-

lic Utility Regulatory Policies Act of

1978, as amended by section 408 of the

Energy Security Act of 1980, but only if

the exemption was issued subsequent

to April 21, 1995 and is for a project of

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Federal Energy Regulatory Commission § 11.1

more than 1.5 megawatts of installed

capacity.

(3) If the exemption for a project of

more than 1.5 megawatts of installed

capacity was issued subsequent to

April 21, 1995 but pursuant to an appli-

cation filed prior to that date, the

exemptee may credit against its annual

charge any filing fee paid pursuant to

§ 381.601 of this chapter, which was re-

moved effective April 21, 1995, 18 CFR

381.601 (1994), until the total of all such

credits equals the filing fee that was

paid.

(c) Licenses and exemptions other than State or municipal. For licensees and

exemptees, other than State or munic-

ipal:

(1) A determination shall be made for

each fiscal year of the costs of adminis-

tration of Part I of the Federal Power

Act chargeable to such licensees or

exemptees, from which shall be de-

ducted any administrative costs that

are stated in the license or exemption

or fixed by the Commission in deter-

mining headwater benefit payments.

(2) For each fiscal year the costs of

administration determined under para-

graph (c)(1) of this section will be as-

sessed against such licenses or

exemptee in the proportion that the

annual charge factor for each such

project bears to the total of the annual

charge factors under all such out-

standing licenses and exemptions.

(3) The annual charge factor for each

such project shall be found as follows:

(i) For a conventional project the

factor is its authorized installed capac-

ity plus 112.5 times its annual energy

output in millions of kilowatt-hours.

(ii) For a pure pumped storage

project the factor is its authorized in-

stalled capacity.

(iii) For a mixed conventional-

pumped storage project the factor is its

authorized installed capacity plus 112.5

times its gross annual energy output in

millions of kilowatt-hours less 75 times

the annual energy used for pumped

storage pumping in million of kilo-

watt-hours.

(iv) For purposes of determining

their annual charges factor, projects

that are operated pursuant to an ex-

emption will be deemed to have an an-

nual energy output of zero.

(4) To enable the Commission to de-

termine such charges annually, each li-

censee whose authorized installed ca-

pacity exceeds 1.5 megawatts must file

with the Commission, on or before No-

vember 1 of each year, a statement

under oath showing the gross amount

of power generated (or produced by

nonelectrical equipment) and the

amount of power used for pumped stor-

age pumping by the project during the

preceding fiscal year, expressed in kilo-

watt hours. If any licensee does not re-

port the gross energy output of its

project within the time specified

above, the Commission’s staff will esti-

mate the energy output and this esti-

mate may be used in lieu of the filings

required by this section made by such

licensee after November 1.

(5) For unconstructed projects, the

assessments start on the date of com-

mencement of project construction.

For constructed projects, the assess-

ments start on the effective date of the

license or exemption, except for any

new capacity authorized therein. The

assessments for new authorized capac-

ity start on the date of commencement

of construction of such new capacity.

In the event that construction com-

mences during a fiscal year, the

charges will be prorated based on the

date on which construction com-

menced.

(d) State and municipal licensees and exemptees. For State or municipal li-

censees and exemptees:

(1) A determination shall be made for

each fiscal year of the cost of adminis-

tration under Part I of the Federal

Power Act chargeable to such licensees

and exemptees, from which shall be de-

ducted any administrative costs that

are stated in the license or exemption

or that are fixed by the Commission in

determining headwater benefit pay-

ments.

(2) An exemption will be granted to a

licensee or exemptee to the extent, if

any, to which it may be entitled under

section 10(e) of the Act provided the

data is submitted as requested in para-

graphs (d) (4) and (5) of this section.

(3) For each fiscal year the total ac-

tual cost of administration as deter-

mined under paragraph (d)(1) of this

section will be assessed against each

such licensee or exemptee (except to


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18 CFR Ch. I (4–1–15 Edition) § 11.1

the extent of the exemptions granted

pursuant to paragraph (d)(2) of this sec-

tion) in the proportion that the author-

ized installed capacity of each such

project bears to the total such capacity

under all such outstanding licenses or

exemptions.

(4) To enable the Commission to com-

pute on the bill for annual charges the

exemption to which State and munic-

ipal licensees and exemptees are enti-

tled because of the use of power by the

licensee or exemptee for State or mu-

nicipal purposes, each such licensee or

exemptee must file with the Commis-

sion, on or before November 1 of each

year, a statement under oath showing

the following information with respect

to the power generated by the project

and the disposition thereof during the

preceding fiscal year, expressed in kilo-

watt-hours:

(i) Gross amount of power generated

by the project.

(ii) Amount of power used for station

purposes and lost in transmission, etc.

(iii) Net amount of power available

for sale or use by licensee or exemptee,

classified as follows:

(A) Used by licensee or exemptee.

(B) Sold by licensee or exemptee.

(5) When the power from a licensed or

exempted project owned by a State or

municipality enters into its electric

system, making it impracticable to

meet the requirements of this section

with respect to the disposition of

project power, such licensee or

exemptee may, in lieu thereof, furnish

similar information with respect to the

disposition of the available power of

the entire electric system of the li-

censee or exemptee.

(6) The assessments commence on the

date of commencement of project oper-

ation. In the event that project oper-

ation commences during a fiscal year,

the charges will be prorated based on

the date on which operation com-

menced.

(e) Transmission lines. For projects in-

volving transmission lines only, the ad-

ministrative charge will be stated in

the license.

(f) Maximum charge. No licensed or

exempted project’s annual charge may

exceed a maximum charge established

each year by the Commission to equal

2.0 percent of the adjusted Commission

costs of administration of the hydro-

power regulatory program. For every

project with an annual charge deter-

mined to be above the maximum

charge, that project’s annual charge

will be set at the maximum charge, and

any amount above the maximum

charge will be reapportioned to the re-

maining projects. The reapportionment

will be computed using the method

outlined in paragraphs (c) and (d) of

this section (but excluding any project

whose annual charge is already set at

the maximum amount). This procedure

will be repeated until no project’s an-

nual charge exceeds the maximum

charge.

(g) Commission’s costs. (1) With respect

to costs incurred by the Commission,

the assessment of annual charges will

be based on an estimate of the costs of

administration of Part I of the Federal

Power Act that will be incurred during

the fiscal year in which the annual

charges are assessed. After the end of

the fiscal year, the assessment will be

recalculated based on the costs of ad-

ministration that were actually in-

curred during that fiscal year; the ac-

tual costs will be compared to the esti-

mated costs; and the difference be-

tween the actual and estimated costs

will be carried over as an adjustment

to the assessment for the subsequent

fiscal year.

(2) The issuance of bills based on the

administrative costs incurred by the

Commission during the year in which

the bill is issued will commence in 1993.

The annual charge for the administra-

tive costs that were incurred in fiscal

year 1992 will be billed in 1994. At the

licensee’s option, the charge may be

paid in three equal annual installments

in fiscal years 1994, 1995, and 1996, plus

any accrued interest. If the licensee

elects the three-year installment plan,

the Commission will accrue interest

(at the most recent yield of two-year

Treasury securities) on the unpaid

charges and add the accrued interest to

the installments billed in fiscal years

1995 and 1996.

(h) In making their annual reports to

the Commission on their costs in ad-

ministering Part I of the Federal

Power Act, the United States Fish and

Wildlife Service and the National Ma-

rine Fisheries Service are to deduct


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any amounts that were deposited into their Treasury accounts during that year as reimbursements for conducting studies and reviews pursuant to section 30(e) of the Federal Power Act.

(i) Definition. As used in paragraphs (c) and (d) of this section, authorized in-stalled capacity means the lesser of the ratings of the generator or turbine units. The rating of a generator is the product of the continuous-load capac-ity rating of the generator in kilovolt- amperes (kVA) and the system power factor in kW/kVA. If the licensee or exemptee does not know its power fac-tor, a factor of 1.0 kW/kVA will be used. The rating of a turbine is the product of the turbine’s capacity in horsepower (hp) at best gate (maximum efficiency point) opening under the manufacturer’s rated head times a con-version factor of 0.75 kW/hp. If the gen-erator or turbine installed has a rating different from that authorized in the li-cense or exemption, or the installed generator is rewound or otherwise modified to change its rating, or the turbine is modified to change its rat-ing, the licensee or exemptee must apply to the Commission to amend its

authorized installed capacity to reflect

the change. (j) Transition. For a license having

the capacity of the project for annual

charge purposes stated in horsepower,

that capacity shall be deemed to be the

capacity stated in kilowatts elsewhere

in the license, including any amend-

ments thereto.

[60 FR 15047, Mar. 22, 1995, as amended by

Order 584, 60 FR 57925, Nov. 24, 1995]

§ 11.2 Use of government lands.(a) Reasonable annual charges for

recompensing the United States for the

use, occupancy, and enjoyment of its

lands (other than lands adjoining or

pertaining to Government dams or

other structures owned by the United

States Government) or its other prop-

erty, will be fixed by the Commission. (b) General rule. Annual charges for

the use of government lands will be

payable in advance, and will be set on

the basis of an annual schedule of per-

acre rental fees, as set forth in Appen-

dix A of this part. The Executive Direc-

tor will publish the updated fee sched-

ule in the FEDERAL REGISTER.

(c) The annual per-acre rental fee is

the product of four factors: the ad-

justed per-acre value multiplied by the

encumbrance factor multiplied by the

rate of return multiplied by the annual

adjustment factor.

(1) Adjusted per-acre value. (i) Coun-

ties (or other geographical areas) are

assigned a per-acre value based on

their average per-acre land and build-

ing value published in the Census of

Agriculture (Census) by the National

Agricultural Statistics Service

(NASS). The adjusted per-acre value is

computed by reducing the NASS Cen-

sus land and building value by the sum

of a state-specific modifier and seven

percent. A table of state-specific ad-

justments will be available on the

Commission’s Web site.

(ii) The state-specific modifier is a

percentage reduction applicable to all

counties or geographic areas in a state

(except Puerto Rico), and represents

the ratio of the total value of irrigated

farmland in the state to the total value

of all farmland in the state. The state-

specific modifier will be recalculated

every five years beginning in payment

year 2016.

(iii) The state-specific modifier for

Puerto Rico is 13 percent.

(2) Encumbrance factor. The encum-

brance factor is 50 percent.

(3) Rate of return. The rate of return

is 5.77 percent through payment year

2025. The rate of return will be adjusted

every 10 years thereafter, and will be

based on the 10-year average of the 30-

year Treasury bond yield rate imme-

diately preceding the applicable NASS

Census. For example, for years 2026

through 2035, the rate of return will be

based on the 10-year average (2012–2021)

of the 30-year Treasury bond yield rate

immediately preceding the 2022 NASS

Census. If the 30-year Treasury bond

yield rate is not available, the next

longest term Treasury bond available

should be used in its place.

(4) Annual adjustment factor. The an-

nual adjustment factor is 1.9 percent

through payment year 2015. For years

2016 through 2025, the annual adjust-

ment factor is the annual change in the

Implicit Price Deflator for the Gross

Domestic Product (IPD–GDP) for the

ten years (2014–2023) preceding issuance

(2024) of the most recent NASS Census


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Subpart C [Reserved]

Subpart D—Exemption of Natural Gas Service for Drilling, Testing, or Purging from Certificate Requirements

157.53 Testing.

Subpart E [Reserved]

Subpart F—Interstate Pipeline Blanket Cer-tificates and Authorization Under Sec-tion 7 of the Natural Gas Act for Cer-tain Transactions and Abandonment

157.201 Applicability.

157.202 Definitions.

157.203 Blanket certification.

157.204 Application procedure.

157.205 Notice procedure.

157.206 Standard conditions.

157.207 General reporting requirements.

157.208 Construction, acquisition, operation,

replacement, and miscellaneous rear-

rangement of facilities.

157.209 Temporary compression facilities.

157.210 Mainline natural gas facilities.

157.211 Delivery points.

157.212 Synthetic and liquefied natural gas

facilities.

157.213 Underground storage field facilities.

157.214 Increase in storage capacity.

157.215 Underground storage testing and de-

velopment.

157.216 Abandonment.

157.217 Changes in rate schedules.

157.218 Changes in customer name.

APPENDIX I TO SUBPART F OF PART 157—PRO-

CEDURES FOR COMPLIANCE WITH THE EN-

DANGERED SPECIES ACT OF 1973 UNDER

§ 157.206(b)(3)(i)

APPENDIX II TO SUBPART F OF PART 157—PRO-

CEDURES FOR COMPLIANCE WITH THE NA-

TIONAL HISTORIC PRESERVATION ACT OF

1966 UNDER § 157.206(b)(3)(ii)

Subpart G—Natural Gas Producer Blanket Authorization for Sales and Abandon-ment [Reserved]

AUTHORITY: 15 U.S.C. 717–717z.

Subpart A—Applications for Cer-tificates of Public Conven-ience and Necessity and for Orders Permitting and Ap-proving Abandonment under Section 7 of the Natural Gas Act, as Amended, Con-cerning Any Operation, Sales, Service, Construction, Exten-sion, Acquisition or Abandon-ment

§ 157.1 Definitions.

For the purposes of this part—

For the purposes of § 157.21 of this

part, Director means the Director of the

Commission’s Office of Energy

Projects.

Indian tribe means, in reference to a

proposal or application for a certificate

or abandonment, an Indian tribe which

is recognized by treaty with the United

States, by federal statute, or by the

U.S. Department of the Interior in its

periodic listing of tribal governments

in the FEDERAL REGISTER in accord-

ance with 25 CFR 83.6(b), and whose

legal rights as a tribe may be affected

by the proposed construction, oper-

ation or abandonment of facilities or

services (as where the construction or

operation of the proposed facilities

could interfere with the tribe’s hunting

or fishing rights or where the proposed

facilities would be located within the

tribe’s reservation).

Resource agency means a Federal,

state, or interstate agency exercising

administration over the areas of recre-

ation, fish and wildlife, water resource

management, or cultural or other rel-

evant resources of the state or states

in which the facilities or services for

which a certificate or abandonment is

proposed are or will be located.

[Order 608, 64 FR 51220, Sept. 22, 1999, as

amended by Order 665, 70 FR 60440, Oct. 18,

2005]

§ 157.5 Purpose and intent of rules.

(a) Applications under section 7 of

the Natural Gas Act shall set forth all

information necessary to advise the


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may involve cooperating agency re-

view.

(h) A prospective applicant using the

pre-filing procedures of this section

shall comply with the procedures in

§ 388.112 of this chapter for the submis-

sion of documents containing privi-

leged materials or critical energy in-

frastructure information.

[Order 665, 70 FR 60440, Oct. 18, 2005, as

amended by Order 756, 77 FR 4894, Feb. 1,

2012; Order 769, 77 FR 65475, Oct. 29, 2012]

§ 157.22 Schedule for final decisions ona request for a Federal authoriza-tion

For an application under section 3 or

7 of the Natural Gas Act that requires

a Federal authorization—i.e., a permit,

special use authorization, certification,

opinion, or other approval—from a Fed-

eral agency or officer, or State agency

or officer acting pursuant to delegated

Federal authority, a final decision on a

request for a Federal authorization is

due no later than 90 days after the

Commission issues its final environ-

mental document, unless a schedule is

otherwise established by Federal law.

[Order 687, 71 FR 62921, Oct. 27, 2006]

Subpart B—Open Seasons for Alaska Natural Gas Transpor-tation Projects

SOURCE: Order 2005, 70 FR 8286, Feb. 18,

2005, unless otherwise noted.

§ 157.30 Purpose.

This subpart establishes the proce-

dures for conducting open seasons for

the purpose of making binding commit-

ments for the acquisition of initial or

voluntary expansion capacity on Alas-

ka natural gas transportation projects,

as defined herein.

§ 157.31 Definitions.

(a) ‘‘Alaska natural gas transpor-

tation project’’ means any natural gas

pipeline system that carries Alaska

natural gas to the international border

between Alaska and Canada (including

related facilities subject to the juris-

diction of the Commission) that is au-

thorized under the Alaska Natural Gas

Transportation Act of 1976 or section

103 of the Alaska Natural Gas Pipeline Act.

(b) ‘‘Commission’’ means the Federal Energy Regulatory Commission.

(c) ‘‘Voluntary expansion’’ means any expansion in capacity of an Alaska natural gas transportation project above the initial certificated capacity, including any increase in mainline ca-

pacity, any extension of mainline pipe-

line facilities, and any lateral pipeline

facilities beyond those certificated in

the initial certificate order, volun-

tarily made by the pipeline. An expan-

sion done pursuant to section 105 of the

Alaska Natural Gas Pipeline Act is not

a voluntary expansion.

§ 157.32 Applicability.These regulations shall apply to any

application to the Commission for a

certificate of public convenience and

necessity or other authorization for an

Alaska natural gas transportation

project, whether filed pursuant to the

Natural Gas Act, the Alaska Natural

Gas Transportation Act of 1976, or the

Alaska Natural Gas Pipeline Act, and

to applications for expansion of such

projects. Absent a Commission order to

the contrary, these regulations are not

applicable in the case of an expansion

ordered by the Commission pursuant to

section 105 of the Alaska Natural Gas

Pipeline Act.

§ 157.33 Requirement for open season.(a) Any application for a certificate

of public convenience and necessity or

other authorization for a proposed


project must include a demonstration

that the applicant has conducted an

open season for capacity on its pro-

posed project, in accordance with the

requirements of this subpart. Failure

to provide the requisite demonstration

will result in an application being re-

jected as incomplete. (b) Initial capacity on a proposed


project may be acquired prior to an

open season through pre-subscription

agreements, provided that in any open

season as required in paragraph (a) of

this section, capacity is offered to all

prospective bidders at the same rates

and on the same terms and conditions

as contained in the pre-subscription


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18 CFR Ch. I (4–1–14 Edition) § 381.110

§ 381.110 Fees for substantial amend-ments.

Fees established under this part for

any filing will also be charged, as ap-

propriate, for any substantial amend-

ment to a pending filing. An amend-

ment is considered substantial if it

changes the character, nature, or the

magnitude of the proposed activity or

rate in the pending filing. For purposes

of this section, an application for a

temporary certificate is not considered

to be an amendment to a pending cer-

tificate application.

[Order 433–A, 51 FR 43607, Dec. 3, 1986]

Subpart B—Fees Applicable to the Natural Gas Act and Related Authorities

§ 381.207 Pipeline certificate applica-tions.

(a) Definition. For purposes of this

section, ‘‘pipeline certificate applica-

tion’’ means any application for au-

thorization or exemption, any substan-

tial amendment to such an application,

and any application, other than an ap-

plication for a temporary certificate,

for authorization to amend an out-

standing authorization or exemption,

by any person, made pursuant to sec-

tion 7(c) of the Natural Gas Act filed in

accordance with § 284.224 of this chap-

ter.

(b) Fee. Unless the Commission or-

ders direct billing under § 381.107 or

otherwise, the fee established for a

blanket certificate application is

$1,000. The fee filed under this para-

graph must be submitted in accordance

with § 284.224 of this chapter.

(c) Effective date. Any pipeline certifi-

cate application filed with the Com-

mission prior to November 4, 1985, is

subject to the fees established by part

159 of this chapter to the extent that

part 159 applies to such an application.

[Order 433, 50 FR 40346, Oct. 3, 1985, as amend-

ed by Order 433–A, 51 FR 43607, Dec. 3, 1986; 52

FR 10367, Apr. 1, 1987; 53 FR 15384, Apr. 29,

1988; 54 FR 12901, Mar. 29, 1989; 55 FR 13901,

Apr. 13, 1990; 56 FR 15497, Apr. 17, 1991; 58 FR

2975, Jan. 7, 1993]

Subpart C—Fees Applicable to General Activities

§ 381.302 Petition for issuance of a de-claratory order (except under Part I of the Federal Power Act.)

(a) Except as provided in paragraph

(b) of this section, the fee established

for filing a petition for issuance of a

declaratory order under § 385.207 of this

chapter is $24,370. The fee must be sub-

mitted in accordance with subpart A of

this part.

(b) No fee is necessary to file a peti-

tion for issuance of a declaratory order

that solely concerns the investigation,

issuance, transfer, renewal, revocation,

and enforcement of licenses and per-

mits for the construction, operation,

and maintenance of dams, water con-

duits, reservoirs, powerhouses, trans-

mission lines, or other works for the

development and improvement of navi-

gation and for the development and

utilization of power across, along,

from, or in navigable waters under

Part I of the Federal Power Act.

(c) A person claiming the exemption

provided in paragraph (b) of this sec-

tion must file an original and two cop-

ies of a petition for exemption in lieu

of a fee along with its petition for

issuance of a declaratory order. The pe-

tition for exemption should summarize

the issues raised in the petition for

issuance of a declaratory order and ex-

plain why the exemption is applicable.

The Commission or its designee will

analyze each petition to determine

whether the petition has met the

standards for exemption and will notify

the applicant whether it is granted or

denied. If the petition is denied, the pe-

titioner will have thirty days from the

date of notification of the denial to

submit the appropriate fee to the Com-

mission.

[Order 395, 49 FR 35356, Sept. 7, 1984]

EDITORIAL NOTE: For FEDERAL REGISTER ci-

tations affecting § 381.302, see the List of CFR

Sections Affected, which appears in the

Finding Aids section of the printed volume

and at www.fdsys.gov.

EFFECTIVE DATE NOTE: At 79 FR 17024, Mar.

27, 2014, § 381.302(a) was amended by removing

‘‘$24,370’’ and adding ‘‘$24,260’’ in its place, ef-

fective Apr. 28, 2014.

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18 CFR Ch. I (4–1–14 Edition) § 381.401

Subpart D—Fees Applicable to the Natural Gas Policy Act of 1978

§ 381.401 Review of jurisdictional agency determinations.

The fee established for review of a ju-

risdictional agency determination is

$115. The fee must be submitted in ac-

cordance with subpart A of this part

and § 270.301(c) of this chapter.

[Order 616, 65 FR 45872, July 26, 2000]

§ 381.403 Petitions for rate approvalpursuant to § 284.123(b)(2).

The fee established for a petition for

rate approval pursuant to § 284.123(b)(2)

is $12,130. Such fee must be submitted

in accordance with subpart A of this

part and § 284.123(b)(2).

[Order 394, 49 FR 35365, Sept. 7, 1984]







27, 2014, § 381.403 was amended by removing

‘‘$12,130’’ and adding ‘‘$12,070’’ in its place, ef-

fective Apr. 28, 2014.

§ 381.404 [Reserved]

Subpart E—Fees Applicable to Certain Matters Under Parts II and III of the Federal Power Act and the Public Utility Reg-ulatory Policies Act

§ 381.501 Applicability.The fees set forth in this subpart

apply to filings submitted on or after

November 4, 1985.

[Order 435, 50 FR 40358, Oct. 3, 1985]

§ 381.505 Certification of qualifyingstatus as a small power production facility or cogeneration facility.

(a) Unless the Commission orders di-

rect billing under § 381.107 of this chap-

ter or otherwise, the fee established for

an application for Commission certifi-

cation as a qualifying small power pro-

duction facility, as defined in section

3(17) of the Federal Power Act, is

$20,960 and the fee established for an

application for Commission certifi-

cation as a qualifying cogeneration fa-

cility, as defined in section 3(18) of the

Federal Power Act, is $23,720.

(b) The fee filed under this section

must be submitted in accordance with

subpart A of this part and § 292.207(b)(2)

of this chapter.

[Order 494, 53 FR 15382, Apr. 29, 1988]







27, 2014, § 381.505(a) was amended by removing

‘‘$20,960’’ and adding ‘‘$20,860’’ in its place

and by removing ‘‘$23,720’’ and adding

‘‘$23,610’’ in its place, effective Apr. 28, 2014.

Subpart F [Reserved]

Subpart G—Fees Applicable to the Interstate Commerce Act and Related Authorities [Re-served]

PART 382—ANNUAL CHARGES

Subpart A—General Provisions

Sec.

382.101 Purpose.

382.102 Definitions.

382.103 Payment.

382.104 Enforcement.

382.105 Waiver.

382.106 Accounting for annual charges paid

under part 382.

Subpart B—Annual Charges

382.201 Annual charges under Parts II and

III of the Federal Power Act and related

statutes.

382.202 Annual charges under the Natural

Gas Act and Natural Gas Policy Act of

1978 and related statutes.

382.203 Annual charges under the Interstate

Commerce Act.

AUTHORITY: 5 U.S.C 551–557; 15 U.S.C 717–

717w, 3301–3432; 16 U.S.C. 791a–825r, 2601–2645;

42 U.S.C. 7101–7352; 49 U.S.C. 60502; 49 App.

U.S.C. 1–85.

SOURCE: Order 472, 52 FR 21292, June 5, 1987,

unless otherwise noted.


1147


510, Supplies and Expenses, of the Com-mission’s Uniform System of Accounts.

[Order 472, 52 FR 21292, June 5, 1987, as

amended by Order 472–B, 52 FR 36022, Sept.

25, 1987]

Subpart B—Annual Charges § 382.201 Annual charges under Parts

II and III of the Federal Power Act and related statutes.

(a) Determination of costs to be assessed to public utilities. The adjusted costs of administration of the electric regu-latory program, excluding the costs of regulating the Power Marketing Agen-cies, will be assessed to public utilities that provide transmission service (measured, as discussed in paragraph (c) of this section, by the sum of the megawatt-hours of all unbundled trans-mission and the megawatt-hours of all bundled wholesale power sales (to the extent these latter megawatt-hours were not separately reported as

unbundled transmission)). (b) Determination of annual charges to

be assessed to public utilities. The costs

determined under paragraph (a) of this

section will be assessed as annual

charges to each public utility providing

transmission service based on the pro-

portion of the megawatt-hours of

transmission of electric energy in

interstate commerce of each such pub-

lic utility in the immediately pre-

ceding reporting year (either a cal-

endar year or fiscal year, depending on

which accounting convention is used

by the public utility to be charged) to

the sum of the megawatt-hours of

transmission of electric energy in

interstate commerce in the imme-

diately preceding reporting year of all

such public utilities. (c) Reporting requirement. (1) For pur-

poses of computing annual charges, as

of January 1, 2002, a public utility, as

defined in § 382.102(b), that provides

transmission service must submit

under oath to the Office of the Sec-

retary by April 30 of each year an origi-

nal and conformed copies of the fol-

lowing information (designated as

FERC Reporting Requirement No. 582

(FERC–582)): The total megawatt-hours

of transmission of electric energy in

interstate commerce, which for pur-

poses of computing the annual charges

and for purposes of this reporting re-quirement, will be measured by the sum of the megawatt-hours of all unbundled transmission (including MWh delivered in wheeling trans-actions and MWh delivered in exchange transactions) and the megawatt-hours of all bundled wholesale power sales (to the extent these latter megawatt-hours were not separately reported as unbundled transmission). This informa-

tion must be reported to 3 decimal

places; e.g., 3,105 KWh will be reported

as 3.105 MWh. (2) Corrections to the information re-

ported on FERC–582, as of January 1,

2002, must be submitted under oath to

the Office of the Secretary on or before

the end of each calendar year in which

the information was originally re-

ported (i.e., on or before the last day of

the year that the Commission is open

to accept such filings). (d) Determination of annual charges to

be assessed to power marketing agencies. The adjusted costs of administration of

the electric regulatory program as it

applies to Power Marketing Agencies

will be assessed against each power

marketing agency based on the propor-

tion of the megawatt-hours of sales of

each power marketing agency in the

immediately preceding reporting year

(either a calendar year or fiscal year,

depending on which accounting conven-

tion is used by the power marketing

agency to be charged) to the sum of the

megawatt-hours of sales in the imme-

diately preceding reporting year of all

power marketing agencies being as-

sessed annual charges.

[Order 641, 65 FR 65768, Nov. 2, 2000]

§ 382.202 Annual charges under theNatural Gas Act and Natural Gas Policy Act of 1978 and related stat-utes.

The adjusted costs of administration

of the natural gas regulatory program

will be assessed against each natural

gas pipeline company based on the pro-

portion of the total gas subject to Com-

mission regulation which was sold and

transported by each company in the

immediately preceding calendar year

to the sum of the gas subject to the

Commission regulation which was sold

and transported in the immediately

preceding calendar year by all natural


1148

18 CFR Ch. I (4–1–14 Edition) § 382.203

gas pipeline companies being assessed

annual charges.

[Order 472–B, 52 FR 36022, Sept. 25, 1987]

§ 382.203 Annual charges under theInterstate Commerce Act.

(a) The adjusted costs of administra-

tion of the oil regulatory program will

be assessed against each oil pipeline

company based on the proportion of

the total operation revenues of each oil

pipeline company for the immediately

preceding calendar year to the sum of

the operating revenues for the imme-

diately preceding calendar year of all

oil pipeline companies being assessed

annual charges.

(b) No oil pipeline company’s annual

charge may exceed a maximum charge

established each year by the Commis-

sion to equal 6.339 percent of the ad-

justed costs of administration of the

oil regulatory program. The maximum

charge will be rounded to the nearest

$1000. For every company with an an-

nual charge determined to be above the

maximum charge, that company’s an-

nual charge will be set at the max-

imum charge, and any amount above

the maximum charge will be reappor-

tioned to the remaining companies.

The reapportionment will be computed

using the method outlined in para-

graph (a) of this section (but excluding

any company whose annual charge is

already set at the maximum amount).

This procedure will be repeated until

no company’s annual charge exceeds

the maximum charge.


Delaware Riverkeeper Network et al. v. FERC D.C. Cir. No. 17-5084

CERTIFICATE OF SERVICE

In accordance with Fed. R. App. P. 25(d), and the Court’s Administrative Order

Regarding Electronic Case Filing, I hereby certify that I have, this 13th day of

February 2018, served the foregoing upon the counsel listed in the Service

Preference Report via the Court’s CM/ECF system or via U.S. Mail, as indicated

below:

Aaron Joseph Stemplewicz, Esquire Email Delaware Riverkeeper Network 925 Canal Street Suite 3701 Bristol, PA 19007

Michael B. Wigmore, Esquire Email Vinson & Elkins LLP 2200 Pennsylvania Avenue, NW Suite 500W Washington, DC 20037

Jeremy C. Marwell Email Vinson & Elkins LLP 2200 Pennsylvania Avenue, NW Suite 500W Washington, DC 20037

2

Christopher Daniel Ahlers, Esquire Email Clean Air Council Suite 300 135 S. 19th Street Philadelphia, PA 19103

Matthew Xavier Etchemendy Email Vinson & Elkins LLP 2200 Pennsylvania Ave. NW Suite 500W Washington, DC 20037

James Douglas Seegers Email Vinson & Elkins LLP 2200 Pennsylvania Ave. NW Suite 500W Washington, DC 20037

Erika Maley Email Sidley Austin LLP 1501 K Street, NW Washington, DC 20005

Jessie Knon Liu, U.S. Attorney Email U.S. Attorney’s Office 555 4th Street, NW Washington, DC 20530

Scott R. McIntosh, Attorney Email U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Ave, NW Washington, DC 20530

3

Melissa Nicole Patterson, Attorney Email U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Ave, NW Washington, DC 20530

/s/Ross R. Fulton Ross R. Fulton Attorney

Federal Energy Regulatory Commission 888 First Street, NE Washington, D.C. 20426 Telephone: (202) 502-8477 Fax: (202) 273-0901 Email: [email protected]

oral argument scheduled for march 22, … v. st. francis xavier parochial sch., 117 f.3d 621 (d.c....

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