Commissioner James Danly Statement
December 16, 2022
Docket No. OR23-1
I concur in the Commission’s decision to deny the waiver in this proceeding. I write separately to express my misgivings about the Commission’s practices in granting waivers under the Interstate Commerce Act (ICA). Here, the Commission acknowledges that it has “previously granted temporary waivers of ICA sections 6 and 20[1] and parts 341 and 357[2] of the Commission’s regulations where the pipeline may have intended to engage in similar arrangements with third parties.”[3] Although under the correct conditions it can be permissible for the Commission to grant such waivers, when it has done so, the Commission has not typically established an expiration for the waiver. Instead, it requires the recipients to report changes in circumstances, such as “increased accessibility of other pipelines or refiners to its facilities, changes in the ownership of the facilities, changes in the ownership of the petroleum products being shipped, and shipment tenders or requests for service by any person.”[4] Since we do not establish a timeline and we do not monitor the recipients’ activities, we are never certain about whether the waiver is still needed or justified. Going forward, the Commission should consider approving this type of waiver only for a set time period thereby ending our practice of granting open-ended waivers.
For these reasons, I respectfully concur.
[1] 49 U.S.C. app. §§ 6, 20.
[2] See 18 C.F.R. pts. 341 and 357 (implementing the filing and reporting requirements of ICA sections 6 and 20).
[3] Rough Rider Operating LLC, 181 FERC ¶ 61,209, at P 10 (2022) (citing Green River DevCo LP, 163 FERC ¶ 61,069, at P 3 (2018); Laramie River DevCo LP, 161 FERC ¶ 61,006, at P 3 (2017)).
[4] E.g., Green River DevCo LP, 163 FERC ¶ 61,069 at P 8. See also, e.g., Laramie River DevCo LP, 161 FERC ¶ 61,006 at P 8.