Federal Register: June 23, 2010 (Volume 75, Number 120)
DOCID: fr23jn10-12 FR Doc 2010-15118
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
CFR Citation: 18 CFR Part 260
Docket ID: [Docket No. RM07-10-002; Order No. 704-C]
DOCUMENT ACTION: Final rule; order granting clarification.
Transparency Provisions of Section 23 of the Natural Gas Act
DATES: Effective Date: This rule will become effective September 30, 2010.
In this Order Granting Clarification, the Commission addresses pending requests to clarify Form No. 552, under which natural gas market participants must annually report information regarding physical natural gas transactions that use an index or that contribute to or may contribute to the formation of a gas index. Order No. 704 required market participants to file these reports in order to provide greater transparency concerning the use of indices to price natural gas and how well index prices reflect market forces.
Order No. 704C revises Form No. 552 so as to exempt from reporting any unexercised options to take gas under a takeorrelease contract; clarify the definition of exempt unprocessed natural gas transactions as those involving gas that is both not yet processed (to separate and recover natural gas liquids), and still upstream of a processing facility; exempt from reporting cashout and imbalance transactions, since they were burdensome to report and provided little market information; strike the form's references to the blanket sales certificates issued under Sec. 284.402 or Sec. 284.284, since they were burdensome to report and provided little market information, so as to also exempt small entities who were obligated to report solely by virtue of possessing a blanket sales certificate; and make several non substantive modifications to Form No. 552 in an effort to make it more userfriendly.
Transparency Provisions of Section 23 of the Natural Gas Act
DOCUMENT BODY 2:
Issued June 17, 2010.
Before Commissioners: Jon Wellinghoff, Chairman; Marc Spitzer, Philip D. Moeller, and John R. Norris.
Paragraph Nos. I. Background............................................... 2 II. Clarifications.......................................... 9
A. Use of Indices....................................... 9
B. ``Take or Release'' Transactions..................... 21
C. Natural Gas Imported to the Lower 48 States.......... 25
D. Unprocessed and/or Upstream Natural Gas.............. 27
E. Cashout, Imbalance, and OperationRelated 40 Transactions...........................................
F. Unit of Measurement.................................. 46
G. Blanket Certificates................................. 51
H. Other Substantive Requested Clarifications........... 59 III. Other NonSubstantive Modifications.................... 66 IV. Information Collection Statement........................ 69 V. Document Availability.................................... 75 VI. Extension of Time....................................... 78
1. The Federal Energy Regulatory Commission's (Commission) FERC
Form No. 552 requires certain natural gas market participants to
identify themselves and provide summary information about physical
natural gas transactions on an annual, calendar year basis.\1\ In this
order, the Commission addresses pending requests to clarify Form No.
552, resolve issues discussed in comments in this docket and at the
March 25, 2010 Technical Conference (Technical Conference), and provide
additional guidance for Respondents. Further, the Commission, in light
of its experience administering the first year of Form No. 552,
clarifies the exclusion of transactions involving volumes of
unprocessed natural gas. The Commission adopts a revised Form No. 552
incorporating these modifications, which is included in the Appendix to this order.
\1\ FERC Form No. 552 (Form No. 552): Annual Report of Natural Gas Transactions. A copy of Form No. 552, as revised by this order, is attached hereto in the Appendix. The revised form will be available on the Commission's Web site at http://www.ferc.gov/docs filing/forms.asp in the near future. Where appropriate, terms defined in Form No. 552 are capitalized herein.
2. On December 26, 2007, the Commission issued a Final Rule in
Order No. 704,\2\ which amended Part 260 of its regulations to require
the annual submission of a new form, Form No. 552. Order No. 704 has
its genesis in the Energy Policy Act of 2005,\3\ which added section 23
of the Natural Gas Act (NGA). Section 23 of the NGA, among other
things, directs the Commission ``to facilitate price transparency in
markets for the sale or transportation of physical natural gas in
interstate commerce, having due regard for the public interest, the
integrity of those markets, and the protection of consumers.'' \4\
Accordingly, Order No. 704 required natural gas wholesale market
participants, including a number of entities that may not otherwise be
subject to the Commission's traditional NGA jurisdiction, to report
certain information concerning their natural gas sales and purchases annually.
\2\ Transparency Provisions of Section 23 of the Natural Gas Act, Order No. 704, FERC Stats. & Regs. ] 31,260, 73 FR 1014 (2007) (Final Rule) (Order No. 704).
\3\ Energy Policy Act of 2005, Public Law 10958, 119 Stat. 594 (2005).
\4\ 15 U.S.C. 717t2(a)(1) (2006).
3. The basic purpose of these reports is to provide greater transparency concerning the use of indices to price natural gas and how well index prices reflect market forces. Many market participants rely on indices as a way to reference market prices without taking on the risks of active trading. However, the Commission found that there was insufficient information available to the Commission and market participants to assess whether the gas indices are derived from a robust market of fixedprice transactions and thus accurately reflect market forces. For example, there was no way to determine the volumetric relationships between (a) the fixedprice, next day and next month delivery transactions that form gas price indices; and (b) transactions that use indices.
4. Accordingly, Order No. 704, as clarified and modified by Order
Nos. 704A\5\ and 704B,\6\ requires market participants with
reportable physical natural gas purchases or sales equal to or greater
than 2.2 trillion British Thermal Units \7\ to report the following information on Form No. 552:
\5\ Transparency Provisions of Section 23 of the Natural Gas Act, Order No. 704A, 73 FR 55726 (Sept. 26, 2008), FERC Stats. & Regs. ] 31,275 (2008) (Order No. 704A).
\6\ Transparency Provisions of Section 23 of the Natural Gas Act, Order No. 704B, 125 FERC ] 61,302 (2008) (Order No. 704B). \7\ 2.2 TBtus, or roughly 2.2 million dekatherms.
(1) Total volume of the respondent's reportable physical sales and purchases during the year;
(2) Quantities contracted at fixed prices for next day delivery; (3) Quantities contracted at prices that refer to published daily gas price indices;
(4) Quantities contracted at fixed prices for next month delivery; (5) Quantities contracted at prices that refer to published monthly gas price indices;
(6) Quantities contracted under trigger agreements, such as NYMEX Plus contracts; and
(7) Quantities contracted as physical basis transactions.\8\ \8\ Respondents must also explain any difference between the total volumes of their reportable purchases and sales reported in response to item (1) above and the sum of the corresponding quantities reported in response to items (2) through (7).
5. The Commission has engaged in substantial outreach efforts
related to Form No. 552. These efforts are intended to inform market
participants of the obligation to file Form No. 552, to answer
questions regarding the form, and to identify ways to improve it.
Commission Staff has provided informal guidance to dozens of individual
Respondents as well as to various natural gas industry associations
representing Respondents. This outreach includes oneonone telephone
conferences with potential Respondents, conference calls with a number
of industry participants, presentations to groups of market
participants, and the creation and updating of a Frequently Asked Questions (FAQ) list available on
the Commission's Web site.\9\ Commission Staff has also discussed Form No. 552 compliance with major trade organizations through conference calls and direct presentations. In addition, the Commission has addressed specific questions regarding Form No. 552 compliance through our Enforcement Hotline, Compliance Help Desk, direct calls to Staff members, and emails addressed to our dedicated Form No. 552 mailbox (email@example.com).
\9\ The FAQ is available at http://www.ferc.gov/docsfiling/ forms/form552/form552faq.pdf. Along with the FAQ, copies of relevant Commission orders and general filing guidance are provided. The Commission will update the FAQ as necessary and encourages potential Respondents to review the FAQ prior to filing Form No. 552.
6. The Commission extended the deadline for filing the first Form
No. 552, for calendar 2008, from May 1, 2009 to July 1, 2009.\10\ The
Commission received Form No. 552 for calendar year 2008 from 1,109
Respondents. The vast majority of these participants timely submitted
Form No. 552, though the Commission granted seven requests for limited
extensions of time to submit the form. Filed copies of each
Respondent's Form No. 552 are publicly available in the Commission's
Web site in eLibrary. The entire Form No. 552 database for calendar
year 2008 is also available for download at http://www.ferc.gov/docs
filing/forms/form552/data.asp. While most Respondents correctly
completed Form No. 552, the Commission believes that additional
clarifications to Form No. 552 would enhance regulatory certainty and improve the quality of data elicited in the form.
\10\ Transparency Provisions of Section 23 of the Natural Gas Act, Notice of Extension of Time (issued Apr. 9, 2009). The order provided for an extension of the filing deadline for calendar year 2008 data. Calendar year 2009 data must be submitted by May 1, 2010.
7. The American Gas Association (AGA) and Pacific Gas and Electric
Company (PG&E) submitted requests for clarification of Order No. 704 on
October 9, 2009 and November 3, 2009, respectively. These requests are
discussed below. In addition, Commission Staff held a Technical Conference to discuss:
(1) Inconsistencies in reporting upstream transactions in the natural gas supply chain on Form No. 552, and whether these transactions contribute to wholesale price formation;
(2) Whether transactions involving balancing, cashout, operational, and inkind transactions should be reported on Form No. 552; and
(3) Whether the units of measurement (TBtu) currently used for reporting volumes in the form are appropriate.\11\
\11\ Notice of Form No. 552 Technical Conference (Feb. 22, 2010).
Lastly, in addition to the discussion at the Technical Conference, the Commission received numerous written comments in this docket, which we also discuss below.
8. Although the Commission and its Staff have provided considerable
guidance with regard to these reporting requirements, because of the
importance the Commission puts on compliance and its efforts to provide
clear and understandable rules, the Commission finds that Form No. 552
should be revised to further clarify Respondents' obligations. II. Clarifications
A. Use of Indices
1. Request for Clarification
9. Form No. 552, at page 4 line 3, requires respondents to report ``what quantities were contracted at prices that refer to published NextDay Delivery gas price indices.'' Similarly, respondents are required to report, at line 5, ``what quantities were contracted at prices that refer to published NextMonth Delivery gas price indices.'' AGA requests that the Commission modify Form No. 552 to state clearly that the transactions reportable on these lines ``are transactions that are contracted at prices that refer to daily or monthly gas price indices regardless of whether such transactions are themselves for nextday delivery or for nextmonth delivery.'' \12\ AGA claims that this clarification is necessary to resolve ambiguity in the form that has led some Respondents to submit inaccurate calendar year 2009 information.
\12\ AGA Request for Clarification at p. 1.
10. In particular, AGA argues that Order No. 704 was unclear as to whether the indexpriced transactions required to be reported in line 3 or 5 must themselves be nextday or nextmonth transactions or whether all transactions that refer to daily or monthly gas price indices should be reported even if they do not require gas to be delivered the next day or month.
11. AGA states that Order No. 704A appeared to clarify that only indexpriced transactions that were for nextday or nextmonth delivery were required to be reported in lines 3 and 5, respectively. Among other things, AGA points out that Order No. 704A revised the instructions to Form No. 552 by specifically excluding from the reporting requirements ``Fixed Price transaction volumes that are not NextDay Delivery or NextMonth Delivery.'' \13\ Thus, AGA argues, the fact only nextday and nextmonth fixed price transactions were required to be reported suggested that, similarly, only index priced transactions that were themselves nextday or nextmonth transactions were required to be reported on line 3 or 5. AGA also points out that that Order No. 704A revised lines 3 and 5 of the Form No. 552 to specify that the transactions reportable on line 3 were volumes ``contracted at prices that refer to published NextDay Delivery gas price indices,'' and that the transactions reportable on line 5 were volumes ``contracted at prices that refer to published NextMonth Delivery gas price indices.'' AGA states that the addition of the phrases ``NextDay Delivery'' and ``NextMonth Delivery'' created uncertainty as to whether those phrases applied to the transactions to be reported or only modified the referenced gas price indices. \13\ Instruction VII(h).
12. Against this background, AGA argues that as market participants began to prepare to file Form No. 552 to report their 2008 calendar year transactions there was continued uncertainty as to the reporting of indexpriced transactions. In some cases, AGA states, filers included in line 3 or line 5 only those indexbased transactions where the day of gas flow matched up with the index being used, and did not include, for example, transactions that were priced based on an average of gas price indices or transactions for future gas delivery based on historic gas price indices.
13. Thus, AGA recommends that the Commission modify lines 3 and 5 of the Form No. 552 to ask for ``quantities that were contracted at prices that refer to daily price indices and ``quantities that were contracted at prices that refer to monthly price indices,'' and remove the references to NextDay and NextMonth delivery.
14. NiSource,\14\ in its comments in response to the Technical
Conference, also draws the Commission's attention to lines 3 and 5 on page 5 of Form No. 552.\15\ NiSource recommends revising
them both so that each line begins ``Of the amounts reported on line 1, regardless of the date the transaction was executed, * * *'' \16\ NiSource argues that this revision is in keeping with Order No. 704B, which stated, ``[i]ndexbased transactions are reportable even if they are not for NextDay Delivery or NextMonth Delivery.'' \17\
\14\ In this docket, NiSource refers to the following affiliated distribution companies: Bay State Gas Company; Columbia Gas of Kentucky, Inc.; Columbia Gas of Maryland, Inc.; Columbia Gas of Ohio, Inc.; Columbia Gas of Pennsylvania, Inc.; Columbia Gas of Virginia, Inc.; Kokomo Gas and Fuel Company; Northern Indiana Public Service Company; and Northern Indiana Fuel and Light Company, Inc. \15\ These lines ask Respondents, respectively, ``Of the amounts reported on line 1, what quantities were contracted at prices that refer to published NextDay Delivery gas price indices?'' and ``Of the amounts reported on line 1, what quantities were contracted at prices that refer to published NextMonth Delivery gas price indices?''
\16\ NiSource Comments at 6.
\17\ Order No. 704B at P 15.
15. The Commission grants AGA's request. In granting AGA's request,
we provide clarification that also addresses the root of NiSource's
comments. The Commission's guiding principle is that all transactions
that utilize a daily or monthly gas price index, contribute to index
price formation, or could contribute to index price formation must be reported on Form No. 552. As Order No. 704A stated:
[T]he focus of Form No. 552's data collection is transactions that utilize an index price, contribute to index price formation, or could contribute to index price formation. Specifically, the Commission finds that volumes reportable on Form No. 552 should include volumes that utilize nextday or nextmonth price indices, volumes that are reported to any price index publisher, and any volumes that could be reported to an index publisher even if the respondent has chosen not to report to a publisher. By `could be reported to an index publisher,' we mean bilateral, armslength, fixed price, physical natural gas transactions between non
affiliated companies at all trading locations.\18\
\18\ Order No. 704A at P 13.
In Order No. 704B, in response to a request for clarification regarding retail enduse transactions, the Commission reiterated that ``Form No. 552 requires reporting of volumes associated with transactions that utilize, contribute to, or could contribute to a price index.'' \19\
\19\ Order No. 704B at P 13.
16. Transactions that utilize daily or monthly indices are reported on lines 3 and 5, respectively, of Form No. 552. Transactions that contribute to, or could contribute to a gas index are reported on lines 2, 4, 6 and 7 of Form No. 552. Consistent with the purpose of Order No. 704 of providing greater transparency concerning the use of indices to determine natural gas prices and how well index prices reflect market forces, the Commission seeks information concerning all transactions that use indices, regardless of any other aspect of the transaction. Thus, the Commission intended that all transactions using indices be reported on lines 3 and 5 no matter when they were transacted.\20\ Such information is necessary to determine, for example, the volumetric relationship between (a) transactions that use indices to determine natural gas prices; and (b) the fixedprice next day or next month delivery transactions, NYMEX trigger agreements, including NYMEX plus contracts, and physical basis transactions that form gas indices. \20\ Multiyear physical natural gas transactions that refer to an index would report only those volumes that flowed during a given reporting year in the Form No. 552.
17. Accordingly, we are modifying Form No. 552 to provide greater
clarity. In particular, as requested by AGA, the Commission eliminates
the references to ``NextDay Delivery'' and ``NextMonth Delivery'' in
page 4, lines 3 and 5 of Form No. 552 and revises the question on page
4, line 3 to ask for ``quantities that were contracted at Prices that
Refer to published Daily Indices*.'' The question on page 4, line 5 is
similarly revised to ask for ``quantities that were contracted at Prices that Refer to published Monthly Indices*.'' \21\
\21\ In particular, the revised Form No. 552, on page 4, line 3, asks for ``quantities that were contracted at prices that refer to published daily gas price indices'' and on page 4, line 5 asks for ``quantities that were contracted at prices that refer to published monthly gas price indices.''
18. In addition, we are modifying the definitions in the Form No. 552 to provide additional guidance to respondents concerning what transactions should be treated as reportable transactions that refer to daily or monthly indices. In the revised definitions, the Commission clarifies that transactions that refer to ``weekly,'' ``yearly,'' or other gas price indices may, in fact, be based on daily gas price indices and are reportable on page 4, line 3 of Form No. 552. For example, a transaction that references a ``weekly'' index that is formed by averaging multiple daily indices is reportable as referencing a daily index. Similarly, a transaction that refers to a yearly index that is formed by averaging twelve monthly indices would be reported as referencing a monthly index.
19. The Commission also clarifies that the referenced index need
not be solely a gas index. Thus, a transaction that relies on a basket
of indices which includes a gas index and other daily or monthly
indices such as coal, petroleum, LNG, inflation, etc. would also be
reportable on lines 3 and 5 of the Form No. 552. The Commission will
ask Respondents that use a basket of daily or monthly indices that
includes gas and other indices to identify the names of the indices
used on page 4 in line 8 or 9. The Commission reminds Respondents that
the NYMEX Natural Gas Futures price outside of bidweek is not
considered an index for purposes of Form No. 552 and is not to be reported.\22\
\22\ See Order No. 704 at P 113 (``Unlike in the NOPR, Form No. 552 no longer requests information on NYMEX contracts that go to physical delivery because the purpose of the form is to focus on fixedpriced spot transactions and how they are used. Further, information attributable to such contracts is available from NYMEX. Consequently, to reduce the burden on market participants, this instruction has been removed and a market participant may not include volume information related to physicallysettled future contracts.'')
20. Finally, while all transactions referring to daily or monthly
indices must be reported without regard to whether they are for next
day or next month delivery, the fixed price transactions to be reported
on lines 2, 4, 6 and 7 of the Form No. 552 are limited to transactions
which are for nextday or nextmonth delivery. The transactions to be
reported on those lines are transactions that contribute to gas index
price formation, or could contribute to gas index price formation. The
only fixed price transactions that can contribute to a daily price
index are fixed price contracts for next day delivery. Similarly, the
only fixed price contracts that can contribute to a monthly gas price
index are contracts for next month delivery reported on lines 4, 6 and
7. The Commission is modifying and adding definitions in the Form No.
552 to make clear that the terms ``NextDay Delivery or NextMonth
Delivery'' only pertain to Fixed Price transactions which are
reportable on lines 2 and 4, respectively\23\ and to clarify what
transactions on the form do or may contribute to daily and monthly gas price indices.
\23\ Lines 3 and 5 of the schedule appearing on page 4 of Form No. 552 have also been slightly modified to remove references to ``NextDay Delivery'' and ``NextMonth Delivery.''
B. ``Take or Release'' Transactions
1. Request for Clarification
21. AGA states that gas is sometimes purchased under longterm
contracts that offer the purchaser an option to either take (i.e.)
purchase gas up to a contract maximum quantity on a monthly or daily
basis or release the gas back to the seller for it to market to other
purchasers. AGA refers to these contracts as ``take or release
contracts.'' AGA states that the orders in this proceeding do not
specifically address how take or release transactions are to be
reported. AGA notes that, under the definition of ``Physical Natural Gas
Transaction,'' Form No. 552 provides that ``[i]t is not necessary that natural gas actually be delivered under the transactions, only that the delivery obligation existed in the agreement when executed.'' AGA believes that this raises the question whether the option to take or release a volume of natural gas under a take or release contract constitutes a ``delivery obligation'' within the meaning of ``Physical Natural Gas Transaction'' such that the optional amount the purchaser could take must be reported, or whether only the volumes that actually flowed under the contract should be reported.
22. AGA recommends that the Commission clarify that respondents must report only those volumes that actually flowed under a take or release contract. AGA believes that the option to take or release a portion of the volumes of natural gas under such a contract does not give rise to a delivery obligation that would make such volumes reportable. The nature of the contract is such that some portion of the contract volumes may or may not be delivered, and the exact amount of the volumes that must be delivered remains unknown until the purchaser actually exercises the option. In other words, the delivery obligation only arises when the option to take is actually exercised. Indeed, argues AGA, the parties to a take or release contract contemplate that some volumes will not be delivered at all. As a result, it is the quantity of gas that is actually delivered that has an impact on pricing, according to AGA. AGA recommends that the Commission clarify that the option to take or release a volume of natural gas under a take or release contract does not constitute a ``delivery obligation'' within the meaning of a ``Physical Natural Gas Transaction'' such that only the volumes that actually flowed under the contract are reportable on FERC Form No. 552.
23. The Commission grants AGA's requested clarification. The Commission adopted the reporting requirements in the Form No. 552 in order to monitor the use of price indices in the natural gas market, including determining the volumetric relationships between (a) the fixedprice for next day or next month delivery and other transactions that form gas indices; and (b) transactions that use indices to price natural gas transactions. For this purpose, the Commission seeks information concerning what volumes of natural gas are purchased and sold in physical natural gas transactions based on price indices and what volumes are purchased under fixed price contracts which could contribute to a gas index. Where gas is sold under longterm contracts which give the purchaser an option to either take gas or release the gas back to the seller, the relevant volumes to be reported are those that actually flowed under the contract during the course of the year for which the report is being filed. An unexercised option to take gas under a contract does not constitute a reportable physical natural gas transaction.
24. The take or release contracts described by AGA differ from the contracts addressed by the statement in the Form No. 552 definition of ``Physical Natural Gas Transaction'' that ``[i]t is not necessary that natural gas actually be delivered under the transactions, only that the delivery obligation existed in the agreement when executed.'' That statement contemplated a contract which required the seller to deliver a specified amount, without either party having any option to modify the amount to be delivered. By contrast, the take or release contracts give the purchaser an option whether to purchase. In the latter situation, only volumes actually delivered pursuant to the option should be reported on the form if they use an index, contribute to or may contribute to gas price formation.
C. Natural Gas Imported to the Lower 48 States
25. PG&E requests that the Commission clarify the reporting status
of purchases of natural gas outside of the United States for use in the
United States.\24\ In particular, PG&E requests that the Commission
clarify the reporting status of purchases by a Local Distribution
Company (LDC) of gas outside the United States for use in the United
States. PG&E argues that it is not clear from Order No. 704 and the
orders on rehearing of Order No. 704 the extent to which gas purchase
transactions by an LDC that occur outside of the United States are reportable on Form No. 552.\25\
\24\ PG&E Request for Clarification at p. 1.
\25\ Id. at p. 2. Furthermore, PG&E claims LDCs have been given conflicting unofficial guidance by Commission Staff on this issue.
26. In Order No. 704A, the Commission addressed whether transactions outside the lower fortyeight states are reportable on Form No. 552. In relevant part, Order No. 704A provides that:
Regarding transactions involving possible international
transportation, we clarify that: (1) Volumes originating outside the
lower 48 states and delivered at locations outside the lower 48
states are not reportable; (2) volumes originating from inside the
lower 48 states and delivered outside the lower 48 states are
reportable; and (3) volumes delivered inside the lower 48 states are
reportable. Thus, any volumes that originate or are delivered into
the lower 48 states should be reported on Form No. 552 to the same extent as purely domestic volumes.\26\
\26\ Order No. 704A at P 74 (emphasis added).
The Commission reaffirms the above statement from Order No. 704A and clarifies that it applies to all Respondents, including any LDC. D. Unprocessed and/or Upstream Natural Gas
27. Order No. 704A held that transactions involving unprocessed natural gas were not reportable on Form No. 552.\27\ The Commission made this holding in response to two requests on rehearing of Order No. 704. Hess Corporation (Hess) requested that the order exclude entities engaged in transactions behind a processing plant priced pursuant to a percentageofproceeds contract under which the producer is entitled to receive a percentage of the proceeds realized by the buyer upon resale of the natural gas. Similarly, the Oklahoma Independent Petroleum Association (OIPA) sought rehearing of Order No. 704 so as to exempt producers of natural gas that sell wellhead gas at the initial first sales point under a percentage of proceeds contract.
\27\ Order No. 704A at P 78.
28. On rehearing the Commission held, ``transactions involving
unprocessed gas should not be reported on Form No. 552 and should not
be counted when determining whether an entity falls below the de
minimis threshold. Transactions involving unprocessed natural gas are
not relevant to wholesale price formation.'' \28\ The Commission did
not, however, define the term ``unprocessed natural gas.'' Commission
Staff sought further input at the Technical Conference on industry
practice in order to determine whether upstream natural gas contributes to wholesale price formation.\29\
\29\ Notice of Form No. 552 Technical Conference.
29. Through Staff's outreach efforts and the below comments, the
Commission finds that there remains some confusion regarding the filing
requirement and that Respondents have interpreted the requirement in
various ways. Commission Staff administering Form No. 552 responded to
a number of informal requests for clarification involving pipeline
quality natural gas. For instance, some Respondents questioned whether
pipelinequality natural gas that is sold directly into an interstate
or intrastate natural gas pipeline without processing involved [[Page 35637]]
``unprocessed natural gas'' and, thus, need not be reported. Other Respondents reported transactions of pipelinequality gas under the assumption that ``unprocessed natural gas'' was natural gas that required processing.
30. In general, commenters supported the unprocessed natural gas
exemption, but were disparate in their understanding of what the
precise metes and bounds of the exemption should be. Three
commenters\30\ simply request that the Commission promulgate a clear
and consistent definition. Others propose specific definitions of the
exemption, as laid out below. While some commenters seek a broadly
worded exemption, others recommend that some volumes be understood not to fall under the exemption.
\30\ Occidental Energy Marketing, Statoil Natural Gas, and Summit Energy Services.
31. Hess limits its concern to that in its original filing: That the Commission exclude transactions behind a processing plant priced pursuant to a percentageofproceeds contract.
32. DCP Midstream, LLC (DCP) recommends that Form No. 552 should be revised so as to only apply to Dry Natural Gas, using the definition developed by the Energy Information Administration (EIA):
Natural gas which emains after: (1) The liquefiable hydrocarbon
portion has been removed from the gas stream (i.e., gas after lease, field, and/or plant separation); and (2) any volumes of
nonhydrocarbon gases have been removed where they occur in sufficient quantity to render the gas unmarketable. Note: Dry natural gas is also known as consumergrade natural gas. The parameters for measurement are cubic feet at 60 degrees Fahrenheit and 14.73 pounds per square inch absolute.\31\
\31\ EIA, Energy Glossary, ``D'', available at http:// www.eia.doe.gov/glossary/glossary_d.htm (May 19, 2010).
Similarly, Independent Petroleum Association of America (IPAA) urges the Commission to use EIA definitions, and calls for a blanket exclusion of transactions involving unprocessed gas. IPAA argues that the Commission would still capture these volumes in transactions downstream of the processing facility.
33. Devon Energy Corporation (Devon) argues that the Commission has a choice between a definition based on gas quality, and a definition based on the type of transaction. Focusing on gas quality, it argues, runs the risk of requiring Respondents to conduct a complex, burdensome wellbywell examination of their supplies. Instead, it urges the Commission to clarify that the exclusion applies to Unprocessed Natural Gas Transactions, a phrase that it defines as ``transactions in which title transfers prior to the physical act of process and [prior to when] the gas is physically delivered to a processing [facility].'' Devon states that its definition would exclude some upstream transactions regardless of whether they reference an index or could be reported to an index. Nevertheless, it argues, any such volumes would be reported at the first nonaffiliate sale downstream of the processing plant, so the Commission could adopt Devon's proposal without endangering its goal of facilitating price transparency in the wholesale market.
34. By contrast, Shell Producers \32\ offer a threepart
definition, which they argue is consistent with the guidance that Commission Staff has provided:
\32\ In this docket, Shell Producers refers to Shell Gulf of Mexico Inc., Shell Offshore Inc., and SWEPI LP.
(i) Title to the gas involved in the transaction passes to the buyer at, or upstream of, a processing plant;
(ii) The gas is physically unprocessed at the time of the title transfer. (Wellhead separation and treating is not defined as processing for purposes of this exemption.); and
(iii) Other transactions (not covered in (i) and (ii)) involving unprocessed gas are also exempt from reporting if they do not use, contribute to, or could contribute to a price index; however, if an unprocessed gas transaction is downstream of a plant (or no plant is in the vicinity) and does use, contribute to, or could contribute to a price index, the transaction is reportable.
Shell Producers also urge the Commission to clarify the difference between processing, treating, and separating natural gas.
35. Natural Gas Supply Association (NGSA), similarly, argues that there are situations in which it might be appropriate to report unprocessed gas transactions. NGSA gives the example of a firmto wellhead pipeline with longhaul shippers: producers often transfer title to longhaul shippers upstream of the processing plant, but only sell the net quantity of postprocessing gas. NGSA argues that the parties to these transactions ``should be allowed to report these volumes.'' This scenario aside, NGSA proposes to exempt transactions that meet both of two criteria:
1. Title to the gas involved in the transaction passes to the buyer at, or upstream of, a processing plant; and
2. The gas is physically unprocessed at the time of the title transfer.
36. The Commission understands there is no uniform industry processing practice. As such, it is not practical for the Commission to attempt to provide guidance designed to address every situation involving natural gas that may be subject to processing. However, the Commission provides the following clarification to assist Respondents in meeting their Form No. 552 filing obligations.
37. The goal of Order No. 704A is to facilitate transparency of
the price formation process by collecting information concerning the
use of indices to determine the price of natural gas and certain fixed
prices in natural gas markets. As stated in Order No. 704A: ``the
focus of Form No. 552's data collection is transactions that utilize an
index price, contribute to index price formation, or could contribute
to index price formation.'' \33\ In response to Hess and OIPA's request
to exempt transactions behind a processing plant priced pursuant to a
percentageofproceeds contract under which the producer is entitled to
receive a percentage of the proceeds realized by the buyer upon resale
of the natural gas, the Commission in Order No. 704A exempted
unprocessed natural gas from the Form No. 552 data collection because
``[t]ransactions involving unprocessed natural gas are not relevant to
wholesale price formation.'' \34\ Nothing has changed regarding our
exemption of percentageofproceeds contracts associated with
unprocessed gas. While this holding clearly exempts the particular
transactions referred to by Hess and OIPA, it has not been clear to
some Respondents whether the Commission does, indeed, intend to grant a
broader exemption for unprocessed natural gas, and if so, how the Commission defines unprocessed natural gas.
\33\ Order No. 704A at P 13.
\34\ Order No. 704A at P 78.
38. The Commission clarifies that, within the context of Form No.
552, ``unprocessed natural gas'' refers to natural gas that is not yet
processed, but will be processed prior to delivery to an enduser, and
is sold on an unprocessed basis. The EIA defines unprocessed gas as
``natural gas that has not gone through a processing plant.'' \35\ EIA
further defines a processing plant as ``a surface installation designed
to separate and recover natural gas liquids from a stream of produced
natural gas * * * and to control the quality of natural gas [[Page 35638]]
* * *.'' \36\ We apply the quoted definitions, with one exception. In some instances, lean natural gas may emerge from the wellhead without the need for any further processing to remove natural gas liquids before consumption. If this natural gas is produced and eventually transported to end users without any processing then transactions involving such natural gas are reportable at all stages, if the transactions use an index, or contribute to, or may contribute to gas index formation. Accordingly, transactions involving natural gas that is both (1) not processed; and (2) upstream of a processing facility (that is, volumes reasonably expected to travel through a processing facility before consumption) are not reportable.\37\
\35\ EIA, Energy Glossary, ``U'', available at http:// www.eia.doe.gov/glossary/glossary_u.htm (June 1, 2010). \36\ EIA, Energy Glossary, ``P'', available at http:// www.eia.doe.gov/glossary/glossary_p.htm (June 1, 2010). \37\ The Commission understands that, in limited circumstances, a seller of natural gas may not know whether the purchaser intends to process natural gas prior to transportation to an enduser. In such case, the seller should report the relevant volumes on Form No. 552.
39. Whether certain natural gas is lean, separated, or treated does not necessarily resolve whether a transaction is reportable. Separation (the removing of water and petroleum liquids) and treatment (the removing of other impurities) are distinct from processing (the removal and recovery of natural gas liquids). Thus, wellhead separation and treatment do not necessarily render natural gas reportable under Form No. 552. In all instances, the question is whether the gas is of sufficient quality that it could contribute to gas index formation. To the extent a Respondent is unsure as to whether a particular transaction is reportable, it may request informal guidance from Staff or request waiver from the Commission.
E. Cashout, Imbalance, and OperationRelated Transactions
40. In Order No. 704, we required market participants to report sale and purchase volumes related to cashouts, imbalance makeups, and operations.\38\ These transactions include transactions to resolve shippers' transportation imbalances on pipelines and LDCs. Such imbalances are often cashed out pursuant to provisions in the pipeline or LDC tariffs based on specified price indices. The cashout prices may be set at a premium to the relevant price index in order to penalize shippers which incur significant imbalances. These transactions also include operational purchases and sales by pipelines and LDCs and productionrelated balancing activities, such as those between producers and working interest owners.
\38\ Order No. 704 at P 107.
41. In Order No. 704, we stated that, while some volumes related to
such transactions are not utilized to create price indices, many
volumes do refer to or utilize such indices, and therefore these
transactions should be included in the Form No. 552 reports.\39\ In
Order No. 704A, we reiterated, ``It has been our experience that a
significant number of balancing, cashout, and similar transactions
include references to price indices. Understanding the magnitude of
this reliance on price indices is therefore a legitimate policy goal.'' \40\
\39\ Order No. 704 at P 108.
\40\ Order No. 704A at P 61.
42. After respondents filed their Form No. 552s for 2008, Staff
reviewed the filings and made preliminary findings that the volumes of
natural gas identified as cashouts are relatively low in relation to
the total reportable physical natural gas reported on Form No. 552.
Therefore, Staff sought through the Technical Conference and comment
process to better understand the burden and benefits of reporting these volumes.\41\
\41\ Notice of Form No. 552 Technical Conference.
43. Almost every party that filed comments in response to the
Technical Conference commented on cashout and related transactions,
including seven trade associations and six companies.\42\ All of these
Commenters urge the Commission to exclude cashout and imbalance
transactions in Form No. 552, and generally provide the same arguments
for exclusion. Commenters claim that reviewing and reporting these
transactions takes roughly between onethird and onehalf of the
personhours that the typical Respondent devotes to Form No. 552.\43\
Moreover, since cashout and imbalance transactions are fairly
unpredictable and spread out over a wide range of contracts, the
process of reviewing them will not become significantly more efficient
over time. In terms of volume, however, cashout and imbalance
transactions are relatively minor: between 0 and 3 percent of most
Respondents' reportable volumes.\44\ Volumes are low because cashout
and imbalance transactions are netting transactions. Finally,
commenters argue that cashout transactions take place after the fact
as a method of settling imbalances, and thus cannot contribute to market price index formation.
\42\ The trade associations are AGA, Electric Power Supply Association (EPSA), Interstate Natural Gas Association of America (INGAA), IPAA, NGSA, Northwest Industrial Gas Users (NWIGU), and Process Gas Consumers Group (PGC). The companies are Carolina Gas Transmission Corporation (CGT), DCP, Devon, NiSource, Shell Producers, and Summit Energy Services (Summit).
\43\ Commenters state that they or their members devoted the following personhours, or proportion of personhours, to cashout and imbalance volumes. DCP: 90 personhours or half their time;
FOR FURTHER INFORMATION CONTACT
Vince Mareino (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426, (202) 5026167, Vince.Mareino@ferc.gov.
Thomas Russo (Technical Information), Office of Enforcement, Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 5028792, Thomas.Russo@ferc.gov.