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Regulations Implementing the Energy Policy Act of 2005: Coordinating the Processing of Federal Authorizations for Applications Under Sections 3 and 7 of the Natural Gas Act and Maintaining a Complete Consolidated Record
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: May 30, 2006 (Volume 71, Number 103)]
[Proposed Rules]
[Page 30632-30639]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30my06-29]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 153, 157, 375, and 385
[Docket No. RM06-1-000]
Regulations Implementing the Energy Policy Act of 2005:
Coordinating the Processing of Federal Authorizations for Applications
Under Sections 3 and 7 of the Natural Gas Act and Maintaining a
Complete Consolidated Record
Issued May 18, 2006.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: Section 313 of the Energy Policy Act of 2005 (EPAct 2005) \1\
amends section 15 of the Natural Gas Act (NGA) \2\ to provide the
Federal Energy Regulatory Commission (Commission) with additional
authority to coordinate the processing of authorizations required under
Federal law for proposed natural gas projects subject to NGA sections 3
and 7 and maintain a complete consolidated record of decisions with
respect to such Federal authorizations. The Commission proposes to
promulgate regulations governing its exercise of this authority, and
seeks public comments on the proposed regulations.
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\1\ Public Law No. 109-58, 119 Stat. 594 (2005).
\2\ 15 U.S.C. 717n (2000).
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DATES: Comments must be filed on or before July 31, 2006.
ADDRESSES: You may submit comments, identified by Docket No. RM06-1-
000, by one of the following methods:
? Agency Web site: http://www.ferc.gov. 
Follow the
instructions for submitting comments via the eFiling link found in the
Comment Procedures Section of the preamble. The Commission encourages
electronic filing.
? Mail: Commenters unable to file comments electronically
must mail or hand deliver an original and 14 copies of their comments
to: Federal Energy Regulatory Commission, Office of the Secretary, 888
First Street, NE., Washington, DC 20426. Please refer to the Comments
Procedures Section of the preamble for additional information on how to
file paper comments.
FOR FURTHER INFORMATION CONTACT:
Gordon Wagner, Office of the General Counsel, Federal Energy Regulatory
Commission, 888 First Street, NE., Washington, DC 20426.
gordon.wagner@ferc.gov. (202) 502-8947.
John Leiss, Office of Energy Projects, Federal Energy Regulatory
Commission, 888 First Street, NE., Washington, DC 20426.
john.leiss@ferc.gov. (202) 502-8058.
William O. Blome, Office of the General Counsel, Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
william.blome@ferc.gov. (202) 502-8462.
SUPPLEMENTARY INFORMATION:
Before Commissioners: Joseph T. Kelliher, Chairman; Nora Mead Brownell,
and Suedeen G. Kelly.
1. Section 313 of the Energy Policy Act of 2005 (EPAct 2005) \1\
amends section 15 of the Natural Gas Act (NGA) \2\ to provide the
Federal Energy Regulatory Commission (Commission) with additional
authority to (1) coordinate the processing of authorizations required
under Federal law for proposed natural gas projects subject to NGA
sections 3 and 7 and (2) maintain a complete consolidated record of
decisions with respect to such federal authorizations. The Commission
proposes to promulgate regulations governing its exercise of this
authority and seeks public comments on the proposed regulations.
I. Background and Proposal
2. The Commission authorizes the construction and operation of
proposed natural gas projects under NGA sections 3 and 7.\3\ However,
the Commission
[[Page 30633]]
does not have jurisdiction over every aspect of each natural gas
project. Hence, for a natural gas project to go forward, in addition to
Commission approval, several different agencies must typically reach
favorable findings regarding other aspects of the project.
3. To better coordinate the activities of the separate agencies
with varying responsibilities over proposed natural gas projects, EPAct
2005 modifies the Commission's role. Section 313 of EPAct 2005 directs
the Commission (1) to establish a schedule for agencies to review
requests for Federal authorizations required for a project and (2) to
compile a record of each agency's decision, together with the record of
the Commission's decision, to serve as a consolidated record for the
purpose of appeal or review, including judicial review. This notice of
proposed rulemaking (NOPR) seeks comments on procedures to better
coordinate the actions of the Commission and other agencies in
responding to requests for federal authorizations necessary for natural
gas projects and on procedures by which the Commission proposes to
maintain a complete consolidated record documenting agencies' responses
to requests for federal authorizations.\4\
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\3\ Under NGA section 7, the Commission has jurisdiction over
the transportation or sale of natural gas in interstate commerce and
the construction, acquisition, operation, and abandonment of
facilities to transport natural gas in interstate commerce. Pursuant
to Department of Energy (DOE) Delegation Order No. 00-004.00 67 FR
8946 (February 27, 2002), the Secretary of Energy delegated to the
Commission the authority under NGA section 3 to approve or disapprove
applications for the construction and operation of facilities to import
or export natural gas, including liquefied natural gas.
\4\ EPAct 2005 section 313 describes federal authorizations
necessary for an NGA section 3 or 7 project as ``all decisions made
or actions taken by the Commission or by a Federal administrative
agency or officer (or State administrative agency or officer acting
under delegated Federal authority) with respect to'' granting,
denying, or conditioning requests for ``permits, special use
authorizations, certifications, opinions, or other approvals.'' The
proposed regulations reflect this description. However, the body of
this NOPR generally condenses this description to ``authorizations
by agencies.''
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A. Coordinating Federal Authorizations
4. As modified by section 313(a) of EPAct 2005, NGA section
15(b)(1) designates the Commission as ``the lead agency for the
purposes of coordinating all applicable Federal authorizations and for
the purposes of complying with the National Environmental Policy Act of
1969'' (NEPA).\5\ The new NGA section 15(c)(1) directs the Commission
to establish a schedule for issuance of all federal authorizations
required for NGA section 3 and 7 natural gas project proposals. In
setting a schedule, the Commission is directed both to ``ensure
expeditious completion'' of NGA section 3 and 7 proceedings \6\ and to
``comply with applicable schedules established by Federal law.'' \7\
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\5\ 42 U.S.C. 4321 et seq. (2000). Commission authorization
under NGA section 3 or 7 often triggers NEPA, which aspires to
``utilize a systematic, interdisciplinary approach which will insure
the integrated use of the natural and social sciences and the
environmental design arts in planning and in decisionmaking which
may have an impact on man's environment.'' 42 U.S.C. 4332(2)(A)
(2000). EPAct 2005 clarifies that the Commission will lead the
collective, multi-agency NEPA compliance effort for natural gas
projects subject to NGA section 3 or 7.
\6\ NGA section 15(c)(1)(A).
\7\ NGA section 15(c)(1)(B).
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5. On November 17, 2005, the Commission issued an order initially
implementing the authority conferred by EPAct 2005.\8\ In that order,
the Commission delegated to the Director of the Office of Energy
Projects (OEP) the authority to set schedules for agencies to act on
requests for federal authorizations necessary for natural gas projects
to ensure such requests are processed expeditiously. The Commission
stated its intent to initiate a rulemaking to modify its regulations to
formally incorporate the authority provided by EPAct 2005 section 313.
This NOPR is the start of that process.
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\8\ Coordinated Processing of NGA Section 3 and 7 Proceedings,
113 FERC ] 61,170 (2005).
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6. This proposed rulemaking is aimed at expediting the assessment
of NGA section 3 and 7 applications by better coordinating the review
undertaken by the various agencies responsible for issuing necessary
Federal authorizations.\9\ To the extent that the Commission and the
other agencies conduct their information collection and analysis
concurrently--i.e., in tandem rather than sequentially--applications
can be processed more efficiently. To this end, the Commission aims to
have all agencies responsible for issuing federal authorizations
necessary for natural gas projects initiate consideration of a requested
authorization as early as practicable and reach timely final decisions.
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\9\ In general, any proposal that will require Commission
authorization under NGA section 3 or 7 will also require compliance
with other Federal requirements. Typically, these additional federal
authorizations are considered in the context of the Commission's
NEPA review. Federal authorizations for a natural gas project may
require compliance with the Clean Water Act, 33 U.S.C. 1251 et seq.
(2000), and the National Pollution Discharge Elimination System
Program, 40 CFR part 122 et seq. (2005); the Clean Air Act, 42
U.S.C. 1801 et seq. (2000), and the air quality regulations and
state implementation plans adopted pursuant to 40 CFR parts 50-99
(2005); the National Historic Preservation Act of 1966, 16 U.S.C.
470 et seq. (2000); the Archeological and Historic Preservation Act
of 1974, 16 U.S.C 469-469c (2000); the Coastal Zone Management Act
of 1972, 16 U.S.C. 1451 et seq. (2000); the Endangered Species Act
of 1973, 16 U.S.C. 1531 et seq. (2000); Executive Order No. 11,988,
42 FR 26,951 (May 24, 1977), requiring Federal agencies to evaluate
the potential effects of Federal actions on a floodplain; Executive
Order No. 11,990, 42 FR 26,961 (May 24, 1977), requiring an
evaluation of the potential effects of construction on wetlands; the
Wild and Scenic Rivers Act, 16 U.S.C. 1274 et seq. (2000); the
National Wilderness Act, 16 U.S.C. 1133 et seq. (2000); the National
Parks and Recreation Act of 1978, 16 U.S.C. 1 and 230 et seq.
(2000); the Magnuson-Stevens Fishery Conservation and Management
Act, 16 U.S.C. 1801 et seq. (2000); the Marine Mammal Protection Act
of 1972, 16 U.S.C. 1361-1407 (2000); the Migratory Bird Treaty Act
of 1918, 16 U.S.C. 703-712 (2000); the Rivers and Harbors Act of
1899, 33 U.S.C. 403 (2000); and Executive Order Nos. 10485, 18 FR
5397 (September 3, 1953), and 12038, 43 FR 4957 (February 7, 1978),
which require a Presidential Permit for facilities at the border of
the United States used to import or export natural gas.
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7. The Commission aims to facilitate agencies' concurrent
assessments of proposed natural gas projects by specifying that an NGA
section 3 or 7 application submitted to the Commission will not be
deemed ready for processing unless the project sponsor has submitted a
request to each agency responsible for issuing a federal authorization
required for the proposal. A project sponsor might fulfill this
obligation by submitting requests for federal authorizations on the
same day that an NGA section 3 or 7 application is submitted to the
Commission. But this need not be the case. In practice, if a project
sponsor anticipates that another agency's consideration of a request
for a necessary federal authorization could extend beyond the time it
will take the Commission to act, then the applicant may find it
advantageous to submit a request to that agency in advance of filing an
application with the Commission; otherwise, authorization to proceed on
a project could be delayed pending a decision by the other agency. If,
after filing its application with the Commission, an applicant makes
material modifications to any request for a Federal authorization from
another agency, the applicant should file an update with the
Commission, describing its revised request.
8. To assist the Commission in its role as lead agency, the
Commission proposes that each agency notify the Commission when it
receives a request for a Federal authorization, describe its
anticipated processing procedure, and provide the Commission with a
copy of any data requests sent to an applicant. When the Commission
receives an NGA section 3 or 7 application, it will consider the
information that the agencies submit in establishing a schedule for
agency decisions on requests for authorizations necessary for a
proposed natural gas project. If the Commission elects not to issue a
notice specifying a schedule for a particular
[[Page 30634]]
project proposal, then a default deadline of 90 days after the issuance
of the Commission's final environmental document on the proposed
project, or if no environmental document is issued, no later than 90
days after issuance of a final order, will apply to agencies without
applicable schedules established by Federal law.
9. If an agency finds it necessary to request additional
information from an applicant, the Commission proposes the agency file
a copy of its data request with the Commission. This will enhance the
Commission's ability to assess the progress of agency proceedings and
inform the Commission of issues raised in those proceedings.
B. Consolidated Record
10. Section 15(d) of the NGA, added by EPAct 2005, states:
The Commission shall, with the cooperation of Federal and State
administrative agencies and officials, maintain a complete
consolidated record of all decisions made or actions taken by the
Commission or by a Federal administrative agency or officer (or
State administrative agency or officer acting under delegated
Federal authority) with respect to any Federal authorization.
As provided by EPAct 2005, this consolidated record will serve as
the record for (1) appeals or reviews under the Coastal Zone Management
Act (CZMA)\10\ and (2) judicial review under NGA section 19(d)\11\ of
decisions of Federal and state administrative agencies and officials.\12\
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\10\ 16 U.S.C. 1451 et seq. (2000). In an appeal proceeding, the
record may be supplemented as provided by CZMA section 319.
\11\ 15 U.S.C. 717r (2000).
\12\ If the consolidated record does not contain sufficient
information, the United States Court of Appeals may remand the
proceeding to the Commission for further development of the record.
Section 19(d)(1)(2) of the NGA.
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11. On September 26, 2005, the Commission issued a policy statement
to provide guidance in advance of the result of this rulemaking
proceeding on the development of the consolidated record and the use of
the record for appeals and reviews.\13\ In this NOPR, the Commission
proposes to fulfill its mandate to maintain a complete consolidated
record by requiring that within three days of the effective date of an
agency's final decision on a request for a Federal authorization
necessary for a proposed natural gas project, the agency must file with
the Commission, by electronic means, a copy, or summary, of its
decision and an index to documents and materials included in the
agency's proceeding.\14\ If an agency does not reach a decision by the
deadline established by the Commission or Federal law, then within
three days of the expiration of the time allotted, the agency must so
inform the Commission and file an index to the documents and materials
in the agency's inconclusive proceeding.
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\13\ Consolidated Record in Natural Gas Proceedings, 112 FERC ]
61,334 (2005).
\14\ All such submissions are to be in accord with the
Commission's regulations, part 385, subpart T, Formal Requirements
for Filings in Proceedings Before the Commission. The first page of
the copy of, or summary of, the agency's decision, and the first
page of the index, must include the designation ``Consolidated
Record'' and the Commission's docket number for the proceeding in
the upper right corner. In addition, Sec. 388.112 of the
Commission's regulations, 18 CFR 388.112 (2005), sets forth
procedures to be followed for submissions to the Commission that
contain critical energy infrastructure information (CEII) or other
information for which protective treatment is requested. CEII, as
defined by Sec. 388.113(c) of the regulations, includes information
about proposed or existing energy facilities that could be used in
planning an attack on critical infrastructure. In compiling the
consolidated record for a proceeding, the Commission will maintain a
public record of public decisions and actions. To the extent the
record of a decision or action by an agency or official contains
CEII or other information for which protective treatment is
appropriate, this information should be submitted to the Commission
in accordance with the procedures described in Sec. 388.112 to
ensure the information is not placed in the Commission's public records.
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12. The Commission will maintain the complete consolidated record
and it will be the record for appeal or review. In the event of an
appeal or review of agency decisions in response to requests for
Federal authorizations necessary for a proposed natural gas project,
the agency will file with the reviewing authority original, or
certified copies of, documents and materials stipulated by the parties
and specified by the reviewing agency. This comports with current
practice with respect to the appeal of a Commission decision, whereby
the Commission files with the United States Court of Appeals its
record, or a portion thereof, as agreed upon by the parties and
specified by the court.\15\
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\15\ Just as the court need not review the entire record to rule
on a specific issue on appeal of a Commission decision, the
Commission does not expect the entire contents of the complete
consolidated record will be needed for review on appeal of a single
agency's decision.
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II. Proposed Regulatory Revisions
A. Coordinating Federal Authorizations
13. The Commission proposes to modify Sec. Sec. 153.8 and 157.14
of its regulations to specify that an applicant submitting an
application for a natural gas project under NGA section 3 or 7 must
first submit requests for Federal authorizations necessary for its
proposed project, and include an exhibit as part of its application
that itemizes each required Federal authorization, the agency
responsible for issuing each authorization, the date a request for
authorization was submitted to each agency, and the date by which the
applicant has requested or expects each authorization be issued.\16\
This threshold requirement should enhance the Commission's and
agencies' capability to coordinate their consideration of a proposed
natural gas project, and thereby avoid what might otherwise be
piecemeal and disjointed assessments of jurisdictionally discrete
aspects of a single project.
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\16\ Specifically, for NGA section 3 projects, the Commission
proposes to expand the exhibits required under Sec. 153.8 of the
regulations by adding a new Sec. 153.8(a)(9), Exhibit H, containing
the information described above, and for NGA section 7 projects, the
Commission proposes to amend Sec. 157.14 of the regulations by
adding an identical requirement in a new Sec. 157.14(a)(12),
Exhibit J. An applicant that does not include this proposed new
information statement risks rejection of its application as
incomplete. In addition, if after filing its application with the
Commission, an applicant makes material modifications to any request
for a federal authorization from another agency, the applicant
should file an update with the Commission, describing its revised request.
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14. In addition to modifying Sec. Sec. 153.8 and 157.14 of its
regulations, the Commission proposes to amend Sec. 375.308,
Delegations to the Director of the Office of Energy Projects, by adding
a new Sec. 375.308(bb). This additional delegation of authority will
permit the Director of OEP to establish schedules, consistent with
Federal law, for agencies to complete their necessary analysis and
decisionmaking processes and issue decisions on requests for
authorizations for natural gas projects.
15. Finally, the Commission proposes to add a new Sec. 153.4 to
its regulations, to specify that certain part 157 procedural
regulations governing filing an application under NGA section 7 are
equally applicable to applications under NGA section 3. Heretofore,
applicants have either submitted NGA section 3 application for
liquefied natural gas (LNG) projects in conjunction with NGA section 7
applications for interrelated facilities, or else adapted the part 157
procedural filing requirements to submissions under NGA section 3.
Hence, the Commission views this new section as clarifying and
codifying current practice.
B. Determining a Schedule for Federal Authorizations
16. Initially, upon receiving an application, the Commission issues
a notice ``within 10 days of filing'' pursuant to Sec. 157.9 of its
regulations.\17\
[[Page 30635]]
The Commission proposes to clarify that the time to issue a notice runs
for 10 business days.
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\17\ Alternatively, the Commission may reject the application in
accordance with Sec. 157.8 of its regulations.
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17. In issuing a notice of an application, the Commission, or the
Director of OEP acting pursuant to delegated authority, may issue a
schedule for decisions on outstanding requests for federal
authorizations. In the event the Commission or the Director of OEP does
not set a schedule for a particular project, the default deadline for
decisions by those agencies without applicable schedules established by
Federal law will be no later than 90 days after the issuance of the
Commission's final environmental document on the proposed project, or
if no environmental document is issued, no later than 90 days after
issuance of a final order. In some cases--for example, when there is a
demonstrated need to have a new natural gas project in service by a
certain date--the Commission may set deadlines that are shorter than
the maximum times permitted under Federal law. In such cases, the
Commission recognizes that compliance with its specified deadlines
would be voluntary for agencies with deadlines determined by Federal law.
18. In setting a schedule, the Commission will take the
circumstances of other agencies into consideration. To this end, when
an agency receives a request for a Federal authorization, proposed new
Sec. 385.2013 specifies that within 30 days of receiving the request,
the agency must inform the Commission, by electronic means, of the
following: (1) Whether the agency deems the application to be ready for
processing and, if not, what additional information or materials will
be necessary to assess the merits of the request; (2) the time the
agency will allot the applicant to provide the necessary additional
information or materials; (3) what, if any, studies will be necessary
in order to evaluate the request; (4) the anticipated effective date of
the agency's decision; and (5) if applicable, the schedule set forth by
Federal law for the agency to act. In order to assess the progress of
proceedings on requests for Federal authorizations, proposed new Sec.
385.2013 requires that if an agency asks for additional information
from an applicant seeking a Federal authorization, then, within three
days of submitting its request to the applicant, the agency file a copy
of its data request with the Commission.\18\
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\18\ Submissions are to follow the regulatory procedures
described in note 14.
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19. In calculating the time an agency has to act on a request, the
Commission will measure time from the day a project sponsor submits a
request to an agency. The Commission has previously had cause to
consider when a federally specified time period starts to run with
respect to a request for a water quality certification under section
401 of the Clean Water Act (CWA),\19\ and has concluded that the time
allotted by law starts to run on the day the agency receives the
project sponsor's request.\20\
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\19\ 33 U.S.C. 1341 (2000).
\20\ Section 4.34(b)(5)(iii) of the Commission's regulations
states: ``A certifying agency is deemed to have waived the
certification requirements of section 401(a)(1) of the Clean Water
Act if the certifying agency has not denied or granted certification
by one year after the date the certifying agency received a written
request for certification.'' In response to concerns that this
manner of marking time might trigger the running of the one year
time period by filing a deficient request, the Commission observed
that if an agency finds a request to be incomplete--a determination
the agency can be expected to make within, at most, several weeks of
receipt of a request--the agency then has the discretion to deny the
request on the grounds that it is incomplete. See Regulations
Governing Submittal of Proposed Hydropower License Conditions and
Other Matters, Order No. 533, FERC Statutes and Regulations ]30,921
at 30,135-38, 56 FR 23, 108 (May 20, 1991), 55 FERC ]61,193 (1991).
We note, however, that federal regulations allow the United States
Corps of Engineers, Department of the Army (Corps of Engineers) to
wait to initiate its review of a request until after a project
sponsor obtains certain separate Federal authorizations, e.g., a CWA
section 401 water certification (33 CFR 325.2(b)) or a coastal zone
management consistency determination (33 CFR 325.2(2)(ii)). If the
Corps of Engineers finds it necessary to forego its review of a
request until another agency renders it decision, then the schedule
established by Federal law for the Corps of Engineers' review does
not start to run until that other agency acts.
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20. If an agency determines that an authorization request does not
contain information adequate to permit it to reach a reasoned decision,
the agency may deny the request, in which case Commission authorization
could be denied on the grounds that the project sponsor failed to
obtain a Federal authorization necessary for the proposed natural gas
project to go forward. However, rather than risk rejection on the
grounds an application is deficient, the Commission expects applicants
to work to with agencies to cure deficiencies so that a request may be
assessed on its merits. To this end, if at any time during the review
process an agency believes that an applicant is being uncooperative or
failing to respond to reasonable requests for additional information,
the agency should promptly notify the Commission. The Commission
intends to set deadlines to allow time to ensure that Federal
authorizations are issued, conditioned, or denied based on sufficient
information and an agency's sound assessment thereof.
21. As indicated above, the Commission intends to adopt a default
schedule to complete action on requests for Federal authorizations
necessary for a proposed natural gas project. The default deadline will
be 90 days after issuance of the Commission's final environmental
document in a given proceeding, or if an environmental document is not
issued, then 90 days after issuance of the final Commission order.
While it is desirable that all agencies act within the same time frame,
the Commission cannot effect any change to a schedule established by
Federal law.
22. The Commission anticipates this default schedule will prove
adequate for most projects. However, the Commission (or the Director of
OEP acting under delegated authority) may find that circumstances
warrant establishing an individualized schedule for a particular
project. For example, when an applicant proposes a project that appears
modest, routine, or unremarkable, the Commission may consider
establishing an accelerated schedule. It has been the Commission's
experience that in the vast majority of natural gas cases, agencies act
on requests for Federal authorizations expeditiously. Thus, the
Commission expects that in most cases, agencies will complete action on
requests for Federal authorizations within the time frame established
by the Commission, even if a longer time is allotted to agencies by
Federal law.
23. EPAct 2005, in addition to providing the scheduling authority
discussed herein, mandates that project sponsors of certain LNG
terminal projects commence a prefiling process at least six months
before submitting an application to the Commission.\21\ The prefiling
process encourages early involvement by the public and government
agencies, as contemplated by NEPA and the Council on Environmental
Quality's regulations. Because the analysis of the potential
environmental impacts of natural gas projects tends to take longer than
reaching a determination on non-environmental issues (e.g., rates for
new services), the Commission will start the environmental review of
all natural gas projects as soon as doing so may prove productive.
Accordingly, the Commission encourages all natural gas project sponsors
to make use of the prefiling process as a means to notify and consult
with potentially interested persons, identify those aspects of a
[[Page 30636]]
project that merit most attention, winnow the issues in play, and refine
the final proposal prior to filing an application with the Commission.
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\21\ See EPAct 2005 section 311(d) and Regulations Implementing
Energy Policy Act of 2005; Pre-Filing Procedures for Review of LNG
Terminals and Other Natural Gas Facilities, Order No. 665, 113 FERC ]
61,015 (final rule) and 112 FERC ] 61,232 (2005) (NOPR).
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24. This NOPR requires a project sponsor to submit requests for all
necessary Federal authorizations no later than the date that an
application is filed with the Commission. However, a project sponsor
may submit a request sooner, and so trigger the start of the time
provided by Federal law for an agency to act. Gas project sponsors have
previously made use of the prefiling process to prepare requests for
Federal authorizations, and have submitted such requests to agencies
before filing an application with the Commission.\22\ This approach can
compress the time needed to be able to construct and/or operate
proposed natural gas facilities, since final Commission approval most
often rests on other agencies reaching favorable determinations on
requests for federal authorizations.
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\22\ Traditionally, the systematic review of the environmental
aspects of a proposed natural gas project begins after an
application is filed and after the Commission issues a public notice
of intent to prepare an environmental assessment (EA) or
environmental impact statement (EIS). However, the Commission need
not wait for an application to be filed; instead, it can issue a
notice of intent during the prefiling process. A project sponsor, in
turn, need not wait for the Commission to issue a notice, but may
choose to submit requests for authorizations to agencies at any
time. In theory, the earlier a review of the environmental aspects
of a proposed project can start, the earlier a final decision on a
project can be reached--not by curtailing the time allotted to
agencies and the Commission to complete their review, but by
initiating the analysis sooner. Note that prefiling is mandatory
only for certain LNG terminal projects; prefiling is optional for
project sponsors of other types of natural gas facilities.
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C. Consolidated Record
25. Section 313 of EPAct 2005 directs the Commission to ``maintain
a complete consolidated record of all decisions made or actions taken
by the Commission or by a Federal administrative agency or officer (or
State administrative agency or officer acting under delegated Federal
authority) with respect to any Federal authorization.'' The Commission
proposes to do so by revising its part 385 procedural rules to require
that each agency or officer responsible for a Federal authorization
necessary for a proposed natural gas project file with the Commission a
copy of the decision reached or action taken in response to a requested
authorization within three days of the effective date of the final
decision or action. In addition to filing a copy of the final decision
or action, or a summary thereof, the Commission proposes that agencies
and officers also file an index which identifies all documents and
materials--including pleadings, comments, evidence, exhibits,
transcripts of testimony, project alternatives (including alternative
routings), studies, and maps--that are relevant to the result of
request for a federal authorization. When the end of the time
established by the Commission or allotted by federal law expires
without a decision or action, within three days thereafter, the agency
or officer will file with the Commission an index to the documents and
materials submitted in the proceeding.
26. In the proposed new Sec. Sec. 385.2013 and 385.2014, the
Commission requires that agencies submit information--data requests,
decisions, actions, indices, etc.--by electronic means, in accordance
with Sec. 385.2003(c) of the regulations. The Commission expects that
making use of its current eFiling capability will prove more efficient
for both those submitting information and for the Commission in
processing the information submitted. The Commission urges any agency
or officer with a differing expectation to comment. If the Commission
finds filing via the Internet will be a hardship, paper filing will be
permitted as an alternative.
27. The Commission's own record of its deliberations and decision,
in aggregate with copies of the agencies' decisions and indices, will
constitute the ``complete consolidated record'' of each proceeding.
EPAct 2005 declares that this consolidated record ``shall be the
record'' for appeals and reviews of decisions and actions by agencies
and officials in response to requests for Federal authorizations
necessary for NGA section 3 and 7 natural gas projects. Thus, in
appeals and reviews of agencies' and officials' decisions and actions,
the reviewing authority is expected to rely on the consolidated record,
and stipulations by the parties, to determine which portions of the
complete record are relevant to the issues at hand. The reviewing
authority may then request documents and materials referenced in an
index and the full text of a decision or action. Agencies and officials
must stand ready to present requested portions of the consolidated
record to the reviewing authority.\23\ Accordingly, agencies and
officials are to retain all documents and materials relevant to their
decisions and actions for at least three years, or until the conclusion
of an appeal or review.
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\23\ See Fed. R. App. P. 17(b)(1) (2005) and 28 U.S.C. 2112(b)
(2000). An agency or official must be prepared to transmit to the
reviewing authority the original papers, or certified copies, comprising
the whole record of its proceeding and any supplemental record.
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III. Environmental Analysis
28. The Commission is required to prepare an EA or EIS for any
action that may have a significant adverse effect on the human
environment.\24\ No environmental consideration is raised by the
promulgation of a rule that is procedural in nature or does not
substantially change the effect of legislation or regulations being
amended.\25\ The EPAct 2005 provisions granting the Commission
authority to set a schedule for certain agencies to act on requests for
Federal authorizations and requiring the Commission to maintain a
consolidated record are procedural in nature and do not alter the
requirements applicable to natural gas project sponsors or the
responsibilities of the agencies involved in authorizing proposed
projects. Accordingly, in this case, no environmental consideration is
necessary.
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\24\ Order No. 486, Regulations Implementing NEPA, 52 FR 47,897
(December 17, 1987), FERC Stats. & Regs. Preambles 1986-1990 ]
30,783 (1987).
\25\ 18 CFR 380.4(a)(2)(ii) (2005).
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IV. Regulatory Flexibility Act Analysis
29. The Regulatory Flexibility Act of 1980 (RFA) \26\ generally
requires a description and analysis of proposed regulations that will
have significant economic impact on a substantial number of small
entities. The Commission is not required to make such an analysis if
proposed regulations would not have such an effect.\27\ Under the
industry standards used for purposes of the RFA, a natural gas pipeline
company qualifies as ``a small entity'' if it has annual revenues of
$6.5 million or less. Most companies regulated by the Commission do not
fall within the RFA's definition of a small entity.\28\
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\26\ 5 U.S.C. 601-612 (2000).
\27\ 5 U.S.C. 605(b) (2000).
\28\ 5 U.S.C. 601(3), citing to section 3 of the Small Business
Act, 15 U.S.C. 623 (2000). Section 3 of the Small Business Act
defines a ``small-business concern'' as a business which is
independently owned and operated and which is not dominant in its
field of operation.
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30. State agencies acting under federally delegated authority do
not fall under the RFA definition of a small entity; \29\ they are not
described by the subsection pertaining to small businesses,\30\ the
subsection pertaining to small organizations,\31\ or the subsection
defining small governmental jurisdictions.\32\ RFA section 601(5)
defines ``small governmental jurisdiction'' as governments of cities,
[[Page 30637]]
counties, towns, and similar entities with a population of less than
fifty thousand. The Commission concludes that no state agencies acting
under federally delegated authority meet this definition.
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\29\ 5 U.S.C. 601(6) (2000).
\30\ 5 U.S.C. 601(3) (2000).
\31\ 5 U.S.C. 601(4) (2000).
\32\ 5 U.S.C. 601(5) (2000).
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31. The procedural modifications proposed herein should have no
significant economic impact on those entities--be they large or small--
subject to the Commission's regulatory jurisdiction under NGA section 3
or 7, and no significant economic impact on state agencies.
Accordingly, the Commission certifies that this notice's proposed
regulations, if promulgated, will not have a significant economic
impact on a substantial number of small entities.
V. Information Collection Statement
32. The Office of Management and Budget (OMB) regulations require
that OMB approve certain reporting, record keeping, and public
disclosure requirements (collections of information) imposed by an
agency.\33\ Therefore, the Commission is providing notice of its
proposed information collections to OMB for review in accordance with
section 3507(d) of the Paperwork Reduction Act of 1995.\34\ Upon
approval of a collection of information, OMB will assign an OMB control
number and an expiration date.
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\33\ 5 CFR 1320.11 (2005).
\34\ 44 U.S.C. 3507(d) (2000).
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33. FERC-539, ``Gas Pipeline Certificates: Import/Export Related,''
identifies the Commission's information collections relating to part
153 of its regulations, which apply to facilities to import or export
natural gas and for which authorization under section of the NGA is
necessary. FERC-537, ``Gas Pipeline Certificates: Construction,
Acquisition and Abandonment,'' identifies the Commission's information
collections relating to part 157 of its regulations, which apply to
natural gas facilities for which authorization under section 7 of the
NGA is required. The proposed rulemaking will add two new information
collection categories under part 385 of the Commission's regulations:
FERC-606, ``Notification of Request for Federal Authorization and
Requests for Further Information,'' which requires agencies or
officials issuing, conditioning, or denying requests for federal
authorizations necessary for a proposed natural gas project to inform
the Commission of requests received and additional information, if any,
requested of the applicant by the agency or official, and FERC-607,
``Report on Decision or Action on Request for Federal Authorization,''
which requires agencies or officials to submit to the Commission a copy
of a decision or action on a request for federal authorization and an
accompanying index to the documents and materials relied on in reaching
a conclusion.
34. The Commission has attempted to restrict additional reporting
requirements to information essential to enable it to meet its EPAct
2005 mandate to establish a schedule for Federal authorizations and to
maintain a complete consolidated record with the minimal additional
information. The proposed additional reporting requirements are
summarized below.
A. Natural Gas Companies
35. Project sponsors will be required to submit an additional
exhibit with each application. However, the information in the new
exhibit already should be readily available to the project sponsor; the
new reporting requirement merely directs that this information be
summarized and presented in tabular form.
36. The proposed new Sec. 153.4--which specifies that the
procedural filing requirements of part 157 of the Commission's
regulations that apply to applications under NGA section 7, also apply
to applications under NGA section 3--codifies current practice. As
noted, project sponsors submitting NGA section 3 applications have
heretofore adhered to the general filing procedures set forth in part
157 of the regulations; thus, the Commission does not view its
endorsement of this past practice as imposing any additional reporting
burden on NGA section 3 applicants.
B. Federal and State Agencies and Officials Issuing, Conditioning, or
Denying Federal Authorizations
37. The proposed new Sec. 385.2013 requires agencies and officials
responsible for issuing, conditioning, or denying requests for federal
authorizations necessary for a proposed natural gas project to report
to the Commission regarding the status of an authorization request.
This reporting requirement is intended to allow agencies to assist the
Commission to make better informed determinations in establishing due
dates for agencies' decisions. The proposed new Sec. 385.2014 requires
the same agencies and officials to file with the Commission a copy of,
or summary of, a decision and an index to the record of the proceeding.
38. The Commission anticipates that only minor modifications to
current practice and procedure will be necessary to satisfy these
proposed requirements. The Commission assumes that upon initial receipt
of a request for federal authorizations, agencies make an initial
assessment to verify whether the request is ready for processing.
Proposed Sec. 385.2013 directs the agency or official to forward that
initial assessment to the Commission. If in the course of processing a
request, an agency or official finds additional information from the
applicant is needed, proposed new Sec. 385.2013 directs the agency or
official to forward to the Commission a copy of any data request sent
to the applicant. With respect to proposed Sec. 385.2014, the
Commission assumes that in considering a request for a federal
authorization, agencies compile and title the documents and materials
they rely upon in reaching a decision. The Commission is not proposing
a specific format for an index; thus, an agency's in-house
recordkeeping may be presented as an index as long as it functions as a
table of contents to the documents and materials. Note that in
estimating the burden to provide the information specified in the
proposed new Sec. Sec. 385.2013 and 385.2014, only state agencies
acting pursuant to federally delegated authority under the CWA, CAA,
CZMA, and NHPA are included.\35\
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\35\ See 44 U.S.C. 3502(3)(A) (2000) and 5 CFR 1320.3(c )(4)
(2005), stating that ``[a]gency requests for State or local
governments to provide the agency with information constitute a
collection of information requiring OMB approval, as are agency
requests for respondents to provide information to State or local
governments,'' and 5 CFR 1320.3(d) (2005), stating that
``[c]ollections of information conducted by State or local agencies
under contract or in cooperation with a Federal agency are
considered to be sponsored by the Federal agency and need to be
approved by OMB.''
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39. The Commission estimates that on an annual basis the burden to
comply with this proposed rule will be as follows:
----------------------------------------------------------------------------------------------------------------
Number of Number of Hours per
Data collection respondents responses response Total hours
----------------------------------------------------------------------------------------------------------------
FERC-537........................................ 76 815 0.5 408
FERC-539........................................ 12 12 0.5 6
[[Page 30638]]
FERC-606........................................ 48 1702 4.4 7489
FERC-607........................................ 48 1654 6.3 10,423
----------------------------------------------------------------------------------------------------------------
Total Annual Hours for Collection: 18,326 hours.
These are mandatory information collection requirements.
Information Collection Costs: Because of the regional differences
and the various staffing levels that will be involved in preparing the
documentation (legal, technical and support) the Commission is using an
hourly rate of $150 to estimate the costs for filing and other
administrative processes (reviewing instructions, searching data
sources, completing and transmitting the collection of information).
The estimated cost is anticipated to be $2,748,900.
Title: FERC-539, FERC-537, FERC-606, and FERC-607.
Action: Proposed Data Collection.
OMB Control No.: To be determined.
Respondents: Natural gas pipeline companies and state agencies and
officers.
Frequency of Responses: On occasion.
Necessity of Information: On August 8, 2005, Congress enacted EPAct
2005. Section 313 of EPAct 2005 directs the Commission (1) to establish
a schedule for state and federal agencies and officers to act on
requests for federal authorizations required for NGA section 3 and 7
gas projects and (2) to maintain a complete consolidated record of all
decisions or actions by the Commission and other agencies and officers
with respect to federal authorizations. The Commission considers the
regulatory revisions proposed herein the minimal necessary to be able
to implement this Congressional mandate.
40. The Commission requests comments on the utility of the proposed
information collection in meeting the mandates of EPAct 2005, the
accuracy of the burden estimates, how the quality, quantity, and
clarity of the information to be collected might be enhanced, and any
suggested methods for minimizing the respondent's burden and meeting
the EPAct 2005 mandate, including the use of automated information
techniques. Interested persons may obtain information on the reporting
requirements or submit comments by contacting the Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426
(Attention: Michael Miller, Office of the Executive Director, 202-502-
8415 or e-mail michael.miller@ferc.gov). Comments may also be sent to
the Office of Management and Budget (Attention: Desk Officer for the
Federal Energy Regulatory Commission, fax: 202-395-7285 or e-mail:
oira_submission@omb.eop.gov.)
VI. Public Comments
41. The Commission invites interested persons to submit comments on
the matters and issues proposed in this notice to be adopted, including
any related matters or alternative proposals that commenters may wish
to discuss. Comments are due by July 31, 2006. Comments must refer to
Docket No. RM06-1-000, and must include the commenter's name, the
organization represented, if applicable, and address in the comments.
Comments may be filed either in electronic or paper format. The
Commission encourages electronic filing.
42. Comments may be filed electronically via the eFiling link on the
Commission's Web site at http://www.ferc.gov. The Commission
accepts most standard word processing formats and requests commenters
to submit comments in a text-searchable format rather than a scanned
image format. Commenters filing electronically do not need to make a
paper filing. Commenters unable to file comments electronically must
send an original and 14 copies of their comments to: Federal Energy
Regulatory Commission, Secretary of the Commission, 888 First Street,
NE., Washington, DC 20426.
43. All comments will be placed in the Commission's public files
and may be viewed, printed, or downloaded remotely as described in the
Document Availability section below. Commenters on this proposal are
not required to serve copies of their comments on other commenters.
VII. Document Availability
44. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and print the contents of this document via the
Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's
Public Reference Room during normal business hours (8:30 a.m. to 5 p.m.
Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.
List of Subjects
18 CFR Part 153
Exports, Imports, Natural gas, Reporting and recordkeeping
requirements.
18 CFR Part 157
Administrative practice and procedure, Natural gas, Reporting and
recordkeeping requirements.
18 CFR Part 375
Authority delegations (Government agencies), Seals and insignia,
Sunshine Act.
18 CFR Part 385
Administrative practice and procedure, Electric power, Penalties,
Pipelines, Reporting and recordkeeping requirements.
By direction of the Commission.
Magalie R. Salas,
Secretary.
In consideration of the foregoing, the Commission proposes to amend
parts 153, 157, 375, and 385, Chapter I, Title 18, Code of Federal
Regulations, as follows:
PART 153--APPLICATIONS FOR AUTHORIZATION TO CONSTRUCT, OPERATE OR
MODIFY FACILITIES USED FOR THE EXPORT OR IMPORT OF NATURAL GAS
1. The authority citation for part 153 continues to read as follows:
Authority: 15 U.S.C. 717b, 717o; E.O. 10485, 3 CFR, 1949-1953
Comp., p. 970, as amended by E.O. 12038, 3 CFR, 1978 Comp., p. 136,
DOE Delegation Order No. 0204-112, 49 FR 6684 (February 22, 1984).
2. Section 153.4 is added to read as follows:
Sec. 153.4 General requirements.
The procedures in Sec. Sec. 157.5, 157.6, 157.8, 157.9, 157.10,
157.11, and 157.12 of this chapter are applicable to applications under
section 3 of the Natural Gas Act filed pursuant to subpart B of this part.
3. In Sec. 153.8, paragraph (a)(9) is added to read as follows:
Sec. 153.8 Required exhibits.
(a) * * *
(9) Exhibit H. A statement identifying each Federal authorization
that the proposal will require; the Federal
[[Page 30639]]
agency or officer, or State agency or officer acting pursuant to
delegated Federal authority, which will issue each authorization; the
date each request for authorization was submitted; and the date by
which final action on each Federal authorization has been requested or
is expected.
* * * * *
PART 157--APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND
NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER
SECTION 7 OF THE NATURAL GAS ACT
4. The authority citation for part 157 continues to read as follows:
Authority: 15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352.
5. In Sec. 157.9, the heading is revised, the current single
paragraph is designated as paragraph (a), and a new paragraph (b) is
added to read as follows:
Sec. 157.9 Notice of application and notice of schedule for Federal
authorizations.
(a) * * *
(b) Notice of each application may itemize each permit, special use
authorization, certificate, opinion, or other approval that will be
required under Federal law, and may specify a schedule for each Federal
agency or officer, or State agency or officer acting pursuant to
delegated Federal authority, to act on a request for Federal
authorization. Final action on a request for Federal authorization is
due no later than 90 days after the issuance of the Commission's final
environmental document, or final order if no environmental document is
issued, unless a schedule is otherwise established by Federal law or by
the Commission.
6. In Sec. 157.14, paragraph (a)(12) is added to read as follows:
Sec. 157.14 Exhibits.
(a) * * *
(12) Exhibit J--Federal authorizations. A statement identifying
each Federal authorization that the proposal will require; the Federal
agency or officer, or State agency or officer acting pursuant to
delegated Federal authority, which will issue each authorization; the
date each request for authorization was submitted; and the date by
which final action on each Federal authorization has been requested or
is expected.
* * * * *
PART 375--THE COMMISSION
7. The authority citation for part 375 continues to read as follows:
Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16
U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352.
8. In Sec. 375.308, paragraph (bb) is added to read as follows:
Sec. 375.308 Delegations to the Director of the Office of Energy
Projects.
* * * * *
(bb) Establish a schedule consistent with Federal law for each
Federal agency or officer, or State agency or officer acting pursuant
to delegated Federal authority, to issue or deny Federal authorizations
required for applications under section 3 or 7 of the Natural Gas Act.
PART 385--RULES OF PRACTICE AND PROCEDURE
9. The authority citation for part 385 continues to read as follows:
Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717z, 3301-3432; 16
U.S.C. 791a-825r, 2601-2645; 28 U.S.C. 2461; 31 U.S.C. 3701, 9701;
42 U.S.C. 7101-7352; 49 U.S.C. 60502; 49 App. U.S.C. 1-85 (1988).
10. Section 385.2013 is redesignated as Sec. 385.2015, and new
Sec. Sec. 385.2013 and 385.2014 are added to read as follows:
Sec. 385.2013 Notification of requests for Federal authorizations and
requests for further information.
(a) For each Federal authorization--i.e., permit, special use
authorization, certification, concurrence, opinion, or other approval--
required under Federal law with respect to an application for
authorization under section 3 of the Natural Gas Act or a certificate
of public convenience and necessity under section 7 of the Natural Gas
Act, each Federal or State agency or officer responsible for a Federal
authorization must file with the Commission, by electronic means,
within thirty days of the date of receipt of a request for a Federal
authorization, notice of the following:
(1) Whether the application is ready for processing, and if not,
what additional information or materials will be necessary to assess
the merits of the request;
(2) The time the agency or official will allot the applicant to
provide the necessary additional information or materials;
(3) What, if any, studies will be necessary in order to evaluate
the request;
(4) The anticipated effective date of the agency's or official's
decision; and
(5) If applicable, the schedule set by Federal law for the agency
or official to act.
(b) A Federal or State agency or officer considering a request for
a Federal authorization that submits a data request to an applicant
must file a copy of the data request with the Commission, by electronic
means, within three days of submitting the request to the applicant.
Sec. 385.2014 Petitions for appeal or review of Federal authorizations.
(a) For each Federal authorization--i.e., permit, special use
authorization, certification, concurrence, opinion, or other approval--
required under Federal law with respect to an application for
authorization under section 3 of the Natural Gas Act or a certificate
of public convenience and necessity under section 7 of the Natural Gas
Act, the Federal or State agency or officer responsible for each
Federal authorization must file with the Commission, by electronic
means, within three days of the effective date of a decision or action
on a request for a Federal authorization or the expiration of the time
provided to act, the following:
(1) A copy of any final decision or action;
(2) An index identifying all documents and materials--including
pleadings, comments, evidence, exhibits, testimony, project
alternatives, studies, and maps--relied upon by the agency or official
in reaching a decision or action; and
(3) The designation ``Consolidated Record'' and the Commission
docket number for the proceeding applicable to the requested Federal
authorization.
(b) The agencies' and officers' decisions, actions, and indices,
and the Commission's record in each proceeding, constitute the complete
consolidated record. The original documents and materials that make up
the complete consolidated record must be retained by agencies,
officers, and the Commission for at least three years from the effective
date of a decision or action or until an appeal or review is concluded.
(c) Upon appeal or review of a Federal authorization, agencies,
officers, and the Commission will transmit to the reviewing authority,
as requested, documents and materials that constitute the complete
consolidated record.
[FR Doc. E6-8205 Filed 5-26-06; 8:45 am]
BILLING CODE 6717-01-P