Notice2025-01939
Petition of Enbridge Inc. To Reopen and Set Aside Order
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 30, 2025
Issuing agencies
Federal Trade Commission
Abstract
Enbridge Inc. ("Enbridge" or "the company") has requested that the Federal Trade Commission ("FTC" or "Commission") reopen and set aside the Commission's Decision and Order entered on March 22, 2017 (the "Order"), concerning ownership interests in competing natural gas pipelines. The company wants the FTC to set aside the Order given changes in the factual conditions that led to its entry almost eight years ago. Publication of the petition from Enbridge is not intended to affect the legal status of the petition or its final disposition.
Full Text
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<title>Federal Register, Volume 90 Issue 19 (Thursday, January 30, 2025)</title>
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[Federal Register Volume 90, Number 19 (Thursday, January 30, 2025)]
[Notices]
[Pages 8530-8533]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-01939]
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FEDERAL TRADE COMMISSION
[File No. 161 0215/Docket No. C-4604]
Petition of Enbridge Inc. To Reopen and Set Aside Order
AGENCY: Federal Trade Commission.
ACTION: Announcement of petition; request for comment.
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SUMMARY: Enbridge Inc. (``Enbridge'' or ``the company'') has requested
that the Federal Trade Commission (``FTC'' or ``Commission'') reopen
and set aside the Commission's Decision and Order entered on March 22,
2017 (the ``Order''), concerning ownership interests in competing
natural gas pipelines. The company wants the FTC to set aside the Order
given changes in the factual conditions that led to its entry almost
eight years ago. Publication of the petition from Enbridge is not
intended to affect the legal status of the petition or its final
disposition.
DATES: Comments must be received on or before March 3, 2025.
ADDRESSES: Interested parties may file comments online or on paper, by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Please write: ``Enbridge
Petition to Reopen; Docket No. C-4604'' on your comment and file your
comment online at <a href="http://www.regulations.gov">www.regulations.gov</a> by following the instructions on
the web-based form. If you prefer to file your comment on paper, please
mail your comment to the following address: Federal Trade Commission,
Office of the Secretary, 600 Pennsylvania Avenue NW, Mail Stop H-144
(Annex E), Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT: Maribeth Petrizzi (202-326-2564),
Bureau of Competition, Federal Trade Commission, 600 Pennsylvania
Avenue NW, Washington, DC 20580.
SUPPLEMENTARY INFORMATION: Pursuant to section 6(g) of the Federal
Trade
[[Page 8531]]
Commission Act, 15 U.S.C. 46(g), and FTC Rule 2.51, 16 CFR 2.51, notice
is hereby given that the above-captioned petition has been filed with
the Secretary of the Commission and is being placed on the public
record for a period of 30 days. After the period for public comments
has expired and no later than one hundred and twenty (120) days after
the date of the filing of the request, the Commission shall determine
whether to reopen the proceeding and modify or set aside the Order as
requested. In making its determination, the Commission will consider,
among other information, all timely and responsive comments submitted
in connection with this notice.
The text of petition is provided below. An electronic copy of the
filed petition and the exhibits attached to it can be obtained from the
FTC website at this web address: <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/c4604enbridgepetitiontoreopenmodify.pdf">https://www.ftc.gov/system/files/ftc_gov/pdf/c4604enbridgepetitiontoreopenmodify.pdf</a>.
You can file a comment online or on paper. For the Commission to
consider your comment, we must receive it on or before March 3, 2025.
Write ``Enbridge Petition to Reopen; Docket No. C-4604'' on your
comment. Your comment--including your name and your State--will be
placed on the public record of this proceeding, including, to the
extent practicable, on the <a href="http://www.regulations.gov">www.regulations.gov</a> website.
Because of the agency's heightened security screening, postal mail
addressed to the Commission will be subject to delay. We strongly
encourage you to submit your comments online through the
<a href="http://www.regulations.gov">www.regulations.gov</a> website. If you prefer to file your comment on
paper, write ``Enbridge Petition to Reopen; Docket No. C-4604'' on your
comment and on the envelope, and mail your comment to the following
address: Federal Trade Commission, Office of the Secretary, 600
Pennsylvania Avenue NW, Mail Stop H-144 (Annex E), Washington, DC
20580. If possible, submit your paper comment to the Commission by
overnight service.
Because your comment will be placed on the publicly accessible
website at <a href="http://www.regulations.gov">www.regulations.gov</a>, you are solely responsible for making
sure that your comment does not include any sensitive or confidential
information. In particular, your comment should not include any
sensitive personal information, such as your or anyone else's Social
Security number; date of birth; driver's license number or other State
identification number, or foreign country equivalent; passport number;
financial account number; or credit or debit card number. You are also
solely responsible for making sure your comment does not include any
sensitive health information, such as medical records or other
individually identifiable health information. In addition, your comment
should not include any ``trade secret or any commercial or financial
information which . . . is privileged or confidential''--as provided by
section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2),
16 CFR 4.10(a)(2)--including in particular competitively sensitive
information such as costs, sales statistics, inventories, formulas,
patterns, devices, manufacturing processes, or customer names.
Comments containing material for which confidential treatment is
requested must be filed in paper form, must be clearly labeled
``Confidential,'' and must comply with FTC Rule 4.9(c). In particular,
the written request for confidential treatment that accompanies the
comment must include the factual and legal basis for the request and
must identify the specific portions of the comment to be withheld from
the public record. See FTC Rule 4.9(c). Your comment will be kept
confidential only if the General Counsel grants your request in
accordance with the law and the public interest. Once your comment has
been posted on <a href="http://www.regulations.gov">www.regulations.gov</a>--as legally required by FTC Rule
4.9(b)--we cannot redact or remove your comment from that website,
unless you submit a confidentiality request that meets the requirements
for such treatment under FTC Rule 4.9(c), and the General Counsel
grants that request.
Visit the FTC website at <a href="https://www.ftc.gov">https://www.ftc.gov</a> to read this document
and the news release describing this matter. The FTC Act and other laws
that the Commission administers permit the collection of public
comments to consider and use in this proceeding, as appropriate. The
Commission will consider all timely and responsive public comments that
it receives on or before March 3, 2025. For information on the
Commission's privacy policy, including routine uses permitted by the
Privacy Act, see <a href="https://www.ftc.gov/site-information/privacy-policy">https://www.ftc.gov/site-information/privacy-policy</a>.
Authority: 15 U.S.C. 46, 5 U.S.C. 552.
Joel Christie,
Acting Secretary.
Text of Petition of Enbridge Inc. To Reopen and Set Aside the Decision
and Order
Under section 5(b) of the Federal Trade Commission Act, 14 U.S.C.
45(b), and Sec. 2.51 of the Federal Trade Commission Rules of
Practice, 16 CFR 2.51, Respondent Enbridge Inc. (``Enbridge'')
respectfully requests that the Commission reopen and set aside the
Commission's Decision and Order entered on March 22, 2017, in Docket
No. C-4604 (the ``Order'') because Enbridge no longer holds an indirect
ownership interest in the Discovery Pipeline, which was the indirect
ownership interest giving rise to the Order.
The Commission entered the Order to address the potential that the
merger of Enbridge and Spectra Energy Corp. (``Spectra'') would reduce
competition between two natural gas pipelines in deep offshore gas-
producing regions in the Gulf of Mexico: (1) the Walker Ridge Pipeline,
which Enbridge owned and operated through a wholly-owned subsidiary,
and (2) the Discovery Pipeline. Williams Partners, LP (which is now
Williams Companies, Inc. and is referred to in both organizational
forms herein as ``Williams'') had majority control of the Discovery
Pipeline and was the operator; Spectra had an indirect, minority
ownership interest through its interests in DCP Midstream, LLC
(``DCP''). Among other things, the Order required Enbridge both (1) to
prevent access to, or the disclosure or use of, competitively sensitive
information that could facilitate coordination between the Walker Ridge
Pipeline and the Discovery Pipeline and (2) to restrict its ability to
exercise contractual rights that could diminish the Discovery
Pipeline's ability to compete against the Walker Ridge Pipeline.
On August 1, 2024, Williams acquired the entirety of DCP's minority
interest in the Discovery Pipeline, as reflected in the Assignment and
Assumption Agreement between DCP Asset Holdings, LP, and Williams Field
Services Group, LLC, attached hereto as Exhibit 1 (and for which
confidential treatment is requested). See also Williams Companies Inc.,
Quarterly Report (Form 10Q), at 36 (Aug. 5, 2024), <a href="https://www.sec.gov/ix?doc=/Archives/edgar/data/0000107263/000010726324000077/wmb-20240630.htm">https://www.sec.gov/ix?doc=/Archives/edgar/data/0000107263/000010726324000077/wmb-20240630.htm</a>. After the acquisition by Williams, Enbridge no longer has
an interest in the Discovery Pipeline that would provide access to
competitively sensitive information concerning the Discovery Pipeline,
or an ability to influence decisions concerning the Discovery Pipeline.
In light of these changed circumstances, Enbridge hereby petitions the
Commission to reopen and set aside the Order.
[[Page 8532]]
I. Background
A. Initial Transaction
On September 5, 2016, Enbridge and Spectra entered into a merger
agreement. Commission staff raised concerns that the merger would
violate section 7 of the Clayton Act, as amended, 15 U.S.C. 18, and
section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C.
45. Specifically, Commission staff alleged that the merger was likely
to reduce competition by facilitating coordination between the Walker
Ridge Pipeline and the Discovery Pipeline. As a means of resolving
those concerns, Enbridge and Spectra entered into a Consent Agreement
in which they agreed to comply with a Decision and Order. The
Commission approved the Decision and Order on March 22, 2017.
B. The Order
The Order imposes restrictions to ensure that competitively
sensitive information related to Williams or the Discovery Pipeline is
not made available to, or used by, Enbridge employees associated with
the Walker Ridge Pipeline. Provision II.C restricts those Enbridge
employees from influencing operational decisions pertaining to the
Discovery Pipeline. Provision II.B of the Order also restricts the
disclosure of competitively sensitive information concerning the Walker
Ridge Pipeline to entities with an interest in the Discovery Pipeline.
Under Provision II.D of the Order, Enbridge is responsible for
ensuring compliance with the terms of the Order, and is directed to
distribute information and training regarding the Order on an annual
basis. Additionally, a monitor was in place for five years following
the closing of the merger.
C. Enbridge's Compliance With the Order
Enbridge filed compliance reports with the Commission on March 29,
2017, May 23, 2017, February 15, 2018, February 14, 2019, February 10,
2020, February 11, 2021, February 8, 2022, February 16, 2023, and
February 15, 2024. In accordance with its responsibilities under the
Order, Enbridge put in place policies and procedures to ensure that
those involved in the Discovery Pipeline, as well as employees and
contractors who become involved in Enbridge's offshore operations,
received training as part of a standardized onboarding process on the
information restrictions put in place. Moreover, Enbridge circulated an
annual training guidance to (i) its representatives involved in the
oversight of the Discovery Pipeline as well as those assisting them in
their duties, (ii) the entities through which Enbridge had indirect
ownership of the Discovery Pipeline, and (iii) all employees and
contractors involved in Enbridge's offshore operations. Since the entry
of the Order, no remedial actions have been necessary to address
breaches of the information restrictions imposed by the Commission.
D. Elimination of Enbridge's Interest in the Discovery Pipeline
On August 1, 2024, Williams acquired DCP's interest in Discovery
Producer Services, LLC. The acquisition eliminated Enbridge's indirect
interest in the Discovery Pipeline, and, as set forth in the
declaration attached hereto as Exhibit 2, Enbridge has no current
intention of acquiring any further interest in the Discovery Pipeline
in the future, either directly or indirectly.
II. The Commission Should Reopen and Set Aside the Order in View of the
Changed Conditions of Fact and the Public Interest
A. Changed Conditions of Fact
Section 5(b) of the FTC Act, 15 U.S.C. 45(b), and Sec. 2.51(b) of
the Commission's Rules of Practice, 16 CFR 2.51(b), provide that the
Commission may reopen and modify an order if the respondent makes a
satisfactory showing that changed conditions of fact or law require the
order to be altered, modified, or set aside, or that the public
interest so requires. The Commission has stated that a ``satisfactory
showing sufficient to require reopening is made when a request
identified significant changes in circumstances and shows that the
changes eliminate the need for the order or make continued application
of it inequitable or harmful to competition.'' Eli Lilly & Co., Dkt.
No. C-3594, Order Reopening and Setting Aside Order, at 2 (May 13,
1999).
In cases such as this, where the Respondent has no ownership
interest in the business covered by the Order, the Commission has
recognized that ``the factual premise underlying the concerns that led
to entry of the Order'' has substantially changed, and setting aside
the Order is justified. Entergy Corp., Dkt. No. C-3998, Order Reopening
and Setting Aside Order, at 3 (July 1, 2005); see also Johnson &
Johnson, Dkt. No. C-4154, Order Reopening and Setting Aside Order (May
25, 2006), at 4 (finding that ``there is no reason to keep the Order in
place'' where there is no longer any reason to be concerned about the
potential harm to competition that formed the ``basic premise of the
Order'').
The elimination of Enbridge's indirect ownership interest in the
Discovery Pipeline constitutes a changed condition of fact that
justifies the Commission to set aside the Order. The Order was entered
to ensure that, after its merger with Spectra, Enbridge's indirect
interest in the Discovery Pipeline would not reduce competition between
the Discovery Pipeline and the Walker Ridge Pipeline. Enbridge no
longer has an interest in the Discovery Pipeline. Thus, the need for an
Order to restrict the conduct of Enbridge and its employees is no
longer necessary to ensure the independent operation of, and
competition between, the Discovery Pipeline and the Walker Ridge
Pipeline.
B. Public Interest
Because changed circumstances warrant reopening and setting aside
the order here, it is not necessary for the Commission to consider
whether setting aside the Order would serve the public interest. See
Entergy Corp., Order Reopening and Setting Aside Order, at 3 (``[W]e do
not need to assess the sufficiency of Entergy's and EKLP's public
interest showing because the Commission has determined that Entergy and
EKLP have made the requisite satisfactory showing that changed
conditions of fact require the Order to be reopened and set aside.'').
However, should the Commission deem it necessary to assess the public
interest in setting aside the Order, it would be in the public
interest.
Enbridge meets the public interest requirement of Sec. 2.51(b)
because, among other reasons, ``the order in whole or in part is no
longer needed.'' Requests to Reopen, 65 FR 50,636, 50,637 (Aug. 21,
2000) (amending 16 CFR 2.51(b)). As a result of Williams's acquisition,
Enbridge no longer has an interest in the Discovery Pipeline, and thus,
the public interest is no longer served by the Order. At the same time,
setting aside the Order would eliminate the unnecessary costs and
burdens to Enbridge and the Commission during the remainder of the term
of the Order.
III. Conclusion
Enbridge respectfully requests that the Commission reopen and set
aside the Order. Setting aside the Order is justified by changed
conditions of fact and is consistent with the public interest.
Dated: December 13, 2024
Respectfully submitted,
s/Joseph Matelis
[[Page 8533]]
Joseph Matelis, Sullivan & Cromwell LLP, 1700 New York Avenue NW,
Suite 700, Washington DC 20007, Attorney for Respondent Enbridge.
[FR Doc. 2025-01939 Filed 1-29-25; 8:45 am]
BILLING CODE 6750-01-P
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</html>Indexed from Federal Register on January 30, 2025.
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