Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Rules and Regulations
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Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Rules and Regulations
Alternative Methods of Compliance
(AMOCs)
(f) The Manager, Fort Worth Airplane
Certification Office, FAA, Attn: Andrew
McAnaul, Aerospace Engineer, ASW–150
(c/o MIDO–43), 10100 Reunion Place, Suite
650, San Antonio, Texas 78216; telephone:
(210) 308–3365; facsimile: (210) 308–3370,
has the authority to approve AMOCs for this
AD, if requested using the procedures found
in 14 CFR 39.19.
Material Incorporated by Reference
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this AD following the instructions in Snow
Engineering Co. Service Letter #253, dated
December 12, 2005. The Director of the
Federal Register approved the incorporation
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accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. To get a copy of this service
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To review copies of this service information,
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Issued in Kansas City, Missouri, on
October 13, 2006.
James E. Jackson,
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Aircraft Certification Service.
[FR Doc. E6–17828 Filed 10–26–06; 8:45 am]
BILLING CODE 4910–13–P
Before Commissioners: Joseph T. Kelliher,
Chairman; Suedeen G. Kelly, Marc
Spitzer, Philip D. Moeller, and Jon
Wellinghoff
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Parts 153, 157, 375, and 385
[Docket No. RM06–1–000; Order No. 687]
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
October 19, 2006.
AGENCY: Federal Energy Regulatory
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Commission, DOE.
ACTION: Final rule.
SUMMARY: Section 313 of the Energy
Policy Act of 2005 (EPAct 2005) 1
1 Pub. L. 109–58, 119 Stat. 594 (2005).
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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 to
maintain a complete consolidated
record of decisions with respect to such
Federal authorizations. This Final Rule
promulgates regulations governing its
exercise of this authority whereby the
Commission will establish a schedule
for the completion of reviews of
requests for authorizations necessary for
a proposed project and compile a
consolidated record to be used in the
event of review of actions by the
Commission and other agencies in
responding to requests for
authorizations necessary for a proposed
project.
DATES: Effective Date: The rule will
become effective December 26, 2006.
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.
Lonnie Lister, Office of Energy
Projects, Federal Energy Regulatory
Commission, 888 First Street, NE.,
Washington, DC 20426;
lonnie.lister@ferc.gov; (202) 502–8587.
William O. Blome, Office of the
General Counsel, Federal Energy
Regulatory Commission, 888 First
Street, NE., Washington, DC. 20426;
(202) 502–8462.
SUPPLEMENTARY INFORMATION:
1. On May 18, 2006, the Commission
issued a Notice of Proposed Rulemaking
(NOPR) in Docket No. RM06–1–000,3
requesting comments on proposed
regulations to implement section 313 of
the Energy Policy Act of 2005 (EPAct
2005).4 EPAct 2005 section 313 amends
the Natural Gas Act (NGA) to provide
the Commission with the authority (1)
to set a schedule for Federal agencies,
and state agencies acting under federally
delegated authority, to reach a final
decision on requests for Federal
authorizations necessary for proposed
NGA section 3 or 7 gas projects and (2)
to maintain a complete consolidated
record of all decisions and actions by
2 15 U.S.C. 717n (2005).
3 71 FR 30632 (May 30 2006); FERC Stats. & Regs.
¶ 32,601 (2006); 115 FERC ¶ 61,203 (2006).
4 Pub. L. 109–58, 119 Stat. 594 (2005).
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the Commission and other agencies with
respect to such authorizations. In this
Final Rule, the Commission considers
comments submitted in response to the
NOPR, and as a result, makes certain
modifications to the proposed
regulatory revisions.
Background
2. The Commission authorizes the
construction and operation of proposed
natural gas projects under NGA sections
3 and 7.5 However, the Commission
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.
To better coordinate the activities of
separate agencies with varying
responsibilities over proposed natural
gas projects, EPAct 2005 modified 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 6
5 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. Under NGA section 3(e), the
Commission has exclusive authority to approve or
deny an application for the siting, construction,
expansion, or operation of a liquefied natural gas
(LNG) terminal. The Secretary of the Department of
Energy (DOE) has delegated to the Commission the
authority under NGA section 3 to approve or
disapprove applications for the siting, construction,
and operation of facilities to import or export
natural gas. The most recent delegation is in
Delegation Order No. 00–004–00A, effective May
16, 2006.
6 EPAct 2005 section 313 describes ‘‘Federal
authorizations’’ as decisions or actions by a Federal
agency or official, ‘‘or State administrative agency
or officer acting under delegated Federal authority,’’
granting or denying requests for permits,
certificates, opinions, approvals, and other
authorizations. The United States Environmental
Protection Agency (EPA) asks what types of state
actions would qualify as being under delegated
Federal authority. The Commission finds that a
state action qualifies as an action under delegated
Federal authority if it is an action that (1) a State
entity is permitted, approved, or directed to take
under Federal law and (2) provides the basis for a
reasoned decision on a request for a Federal
authorization. The United States Department of
Commerce, National Oceanic and Atmospheric
Administration, National Marine Fisheries Service
(NMFS) asks whether a Federal authorization
would include recommendations or biological
opinions issued subsequent to consultations under
the Magnuson-Stevens Fishery Conservation and
Management Act and Endangered Species Act
(ESA). To the extent recommendations and
opinions are necessary for a Federal agency, or state
agency acting under federally delegated authority,
to reach a decision on a request for a Federal
authorization that is needed for a proposed NGA
section 3 or 7 project to go forward, the Commission
interprets EPAct 2005’s mandate as encompassing
such recommendations and opinions as ‘‘Federal
authorizations.’’
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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, including judicial
review.
3. On November 17, 2005, the
Commission issued an order initially
implementing the authority conferred
by EPAct 2005 7 and delegating to the
Director of 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. In
that order, the Commission stated a
subsequent rulemaking would codify
the pertinent provisions of EPAct 2005.
To that end, the May 2006 NOPR set
forth proposed regulatory revisions.
In this Final Rule, the Commission
responds to comments concerning the
NOPR, and adopts further regulatory
revisions to implement its new
responsibilities under EPAct 2005.
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Notice and Comment
4. Notice of the NOPR was published
in the Federal Register on May 30,
2006.8 Comments on the NOPR were
filed by Baker Botts, L.L.P. (Baker Botts);
Cheniere Energy, Inc. (Cheniere); City of
Fall River, Massachusetts; Coastal States
Organization; Conservation Law
Foundation; Delaware Department of
Natural Resources and Environmental
Control, Division of Soil & Water
Conservation (Delaware DNR); U. S.
Department of the Army Corps of
Engineers (Army COE); Dominion
Transmission, Inc., Dominion Cove
Point LNG, LP, and Dominion South
Pipeline Company, LP (Dominion);
Duke Energy Transmission, LLC (Duke);
United States Environmental Protection
Agency (EPA); Interstate Natural Gas
Association of America (INGAA);
United States Department of the Interior
(Interior); Islander East Pipeline
Company, L.L.C. (Islander East); Mr.
Mark Mendelson; Massachusetts Office
of the Attorney General; Massachusetts
Executive Office of Environmental
Affairs (Massachusetts EOEA); New
Jersey Department of Environmental
Protection (New Jersey DEP); Columbia
Gas Transmission Corporation,
Columbia Gulf Transmission Company,
7 Coordinated Processing of NGA Section 3 and
7 Proceedings, 113 FERC ¶ 61,170 (2005). This Final
Rule codifies this delegation of authority by
revising § 375.308, Delegations to the Director of the
Office of Energy Projects (OEP), to add a new
§ 375.308(bb), which delegates authority to the
Director of OEP to establish schedules, consistent
with Federal law, for agencies to complete their
analysis and decision making processes and issue
decisions on requests for Federal authorizations
necessary for natural gas projects.
8 71 FR 30632 (May 30, 2006).
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Crossroads Pipeline Company, Granite
State Gas Transmission, Inc., and
Central Kentucky Transmission
Company (collectively NiSource);
Oregon Coastal Management Program;
United States Department of Commerce,
National Oceanic and Atmospheric
Administration, National Marine
Fisheries Service (NMFS); and Williston
Basin Interstate Pipeline Company
(Williston).
Discussion
5. The comments raise objections to
various aspects of the proposed
regulatory revisions. In response,
various aspects of the NOPR’s proposed
revisions are modified, as discussed
below.
Electronic Submission of Information
6. There are several different events
that trigger the obligation on the part of
other agencies and officials to submit
information to the Commission. In the
NOPR, the Commission proposed all
such information be submitted
electronically, but requested that
affected agencies and officials comment
on whether electronic submission could
prove impractical. Several agencies
stated that they are not yet prepared to
transmit information by electronic
means. Consequently, to avoid any
undue hardship, while stressing its
preference to receive information via
electronic means, the Commission
removes the requirement to submit
information by electronic means.
Coordinating Federal Authorizations
When to Submit Requests for Federal
Authorizations
7. Proposed §§ 153.8 and 157.14
specify that an application filed with
the Commission for a natural gas project
under NGA section 3 or 7 must include:
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.
The NOPR observed that if an
application does not include this
proposed new information statement,
the Commission may deem the
application incomplete.
8. Several commenters explain that it
is impractical, if not impossible, to
submit applications for all Federal
authorizations before or
contemporaneously with the project
application filed with the Commission.
These commenters propose instead that
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a project sponsor be permitted to file an
application with the Commission first;
list the authorizations necessary for the
new project; identify those
authorizations for which applications
have already been submitted and the
dates upon which they were submitted;
and then state the dates by which any
outstanding authorization requests will
be submitted.
9. The Commission observes that most
applications to construct major new gas
projects are filed with the Commission
after the project sponsor has
participated in the Commission’s
prefiling process. This prefiling period
affords a project sponsor, Commission
staff, and staff from other agencies the
opportunity to identify which Federal
authorizations will be needed for a
project, and ample time for the project
sponsor to prepare requests for related
Federal authorizations in advance of
filing an application with the
Commission.9 Thus, the prefiling
process can establish coordination
among the agencies responsible for
reviewing a project proposal and
diminish the chance that the
Commission might find an application
to be incomplete.
10. The Commission nevertheless
acknowledges that there may be
circumstances that preclude a project
sponsor from presenting all requests for
necessary Federal authorizations by the
time it files an application with the
Commission.10 Therefore, §§ 153.8 and
9 The NOPR noted that project sponsors that have
made use of the prefiling period and process to
prepare and submit requests for Federal
authorizations to agencies before an NGA
application is filed with the Commission have been
able to compress the time needed to obtain
Commission authorization. In large part, this is
because completion of the Commission’s
assessment of an application often rests on other
agencies reaching favorable determinations on
separate authorization requests. Dominion and
Duke are concerned that the new filing requirement
might force a project sponsor to devote undue
resources to preparing to submit requests for related
Federal authorizations at the same time as an NGA
application. The Commission believes the prefiling
process can minimize the resources needed by a
project sponsor by spacing out its submission of
authorization requests over a period of several
months.
10 Cheniere, for example, posits that an agency
may refuse to accept a request for a Federal
authorization ‘‘through no fault of the applicant.’’
Were this to occur, the project sponsor should
inform the Commission, which can then inquire as
to the circumstances. NMFS points out that with
respect to certain Federal authorizations, such as an
affirmation of compliance with the Endangered
Species Act or the National Historic Preservation
Act, the project sponsor is not in a position to
submit an authorization request, since a request to
initiate consultation with the responsible agency
must be submitted by the Commission. The
Commission notes this does not relieve the project
sponsor of its obligation, as described in Part 380
of the existing regulations, to develop and submit
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157.14 of the Commission’s regulations
will be modified to provide for a
sponsor to explain why requests for
Federal authorizations remain
outstanding and state anticipated dates
for submitting such requests. A project
sponsor will now be required to state
‘‘the date each request for authorization
was submitted; why any request has not
been submitted and the date submission
is expected; and the date by which final
action on each Federal authorization has
been requested or is expected.’’ For
requests that remain outstanding at the
time an application is filed, the
Commission will review the reasons
given, the projected dates of submission,
and an applicant’s interactions with the
agencies. The Commission may then
accept the application for consideration,
and based on the state of documents and
studies needed to support prospective
authorization requests, accept the
projected submission dates as a basis for
establishing a schedule.
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Determining a Schedule for Federal
Authorizations
11. Initially, upon receiving an
application, the Commission issues a
notice ‘‘within 10 days of filing,’’ in
accordance with § 157.9 of its
regulations,11 or rejects the application
in accordance with § 157.8 of its
regulations. In issuing a notice of an
application, the Commission, or the
Director of OEP acting pursuant to
delegated authority, may also declare a
schedule for final decisions on
outstanding requests for Federal
authorizations. When a schedule is
established, it will comply with
agencies’ applicable schedules
established by Federal law.12 The NOPR
stated that in the event the Commission
or the Director of OEP does not set a
schedule for a particular project in the
notice or at a later date, the default
deadline for decisions by those agencies
without applicable schedules
established by Federal law will be no
all necessary technical information. Baker Botts and
INGAA call attention to difficulties that may be
presented by compelling a project sponsor to file a
permit under the Clean Air Act contemporaneously
with an NGA section 3 or 7 application. Such
difficulties should be alleviated by the
modifications that this Final Rule makes to the
filing requirements as proposed in the NOPR.
Provided a project sponsor presents good cause for
not submitting a particular authorization request by
the time an application is submitted, the
Commission stands ready to accept the application.
11 Section 157.9 is revised by this Final Rule to
state that in calculating this deadline, only days
during which the Commission is open for business
are counted.
12 In response to a query by NMFS, the
Commission states it interprets the reference in
EPAct 2005 section 313(c)(1)(B) to ‘‘Federal law’’ to
consist of schedules specified either in the United
States Code or in the Code of Federal Regulations.
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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,
then no later than 90 days after issuance
of a final order.
12. Commenters point out that if no
schedule is included in the notice of an
application, agencies are left to wonder
whether a project-specific schedule will
be issued at some later date, or whether
silence indicates the default deadline
applies. The Commission acknowledges
the desirability of informing agencies in
a timely manner of the schedule that
will apply in each case. Accordingly,
the Commission will adopt a different
procedural approach, as described
below.
13. The NOPR proposed requiring that
agency action on authorization requests
be completed within 90 days of the
issuance of the Commission’s final
environmental document in a
proceeding, or if an environmental
document were not prepared, then
within 90 days of the issuance of a final
Commission order. Previously, the
Commission has not always issued its
environmental assessment (EA) at the
time of its completion. Going forward,
the Commission commits to issue its
final environmental document in every
proceeding by placing it in the public
record. In addition, going forward, the
Commission commits to issuing a notice
within 90 days of the notice of an
application describing the schedule that
will apply to the environmental review
process conducted by the Commission
to ensure compliance with the National
Environmental Policy Act of 1969
(NEPA).13 This notice of the schedule
for the environmental review will state,
among other milestones, the anticipated
date for the Commission’s completion of
its EA or final environmental impact
statement (EIS).14 This NEPA notice will
thus serve to inform agencies without a
schedule established by Federal law of
the projected date by which they are to
reach a decision on requested
authorizations, i.e., within 90 days after
the anticipated issuance of the
Commission’s EA or final EIS. Section
157.9 is revised accordingly.
14. Under this approach, there is no
longer any distinction—as was
13 42 U.S.C. 4321–4347 (2005).
14 It has been the Commission’s experience that
in processing applications for certain minor and
routine projects, the Commission’s assessment,
including its NEPA review, can often be completed
within 90 days. For such projects, the Commission
will either include a notice of the environmental
schedule in conjunction with the notice of the
application (i.e., the initial notice issued within 10
days of an application’s being filed with the
Commission), or will issue a separate notice of the
environmental schedule shortly thereafter.
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discussed in the NOPR—between a
‘‘default’’ and a ‘‘project-specific’’
schedule. For agencies without a
schedule established by Federal law, the
deadline for a final decision will follow
from the date the Commission issues its
final environmental document by
placing it in the public record, with the
anticipated issuance date stated in the
NEPA notice. However, this anticipated
issuance date is subject to change. As
explained in the NOPR, during the
course of considering an application or
a request for a Federal authorization,
unanticipated issues and circumstances
can arise and affect the time needed to
complete the review. The Commission
will monitor such changed
circumstances, and may find it
appropriate to revise the milestones set
out in its initial schedule for its
environmental review.15 If the
Commission does so, it will issue a
notice updating the milestones
associated with its environmental
review process. Any revision that alters
the date that the Commission
anticipates issuing its EA or final EIS
will correspondingly shift the projected
90-day deadline for agencies without a
schedule established by Federal law to
reach a final decision.
15. As described above, the
Commission will now issue a notice
describing the schedule for its
environmental review as a part of, or
within 90 days of, its initial notice of an
application. Therefore, agencies will
know, relatively early in the processing
of all applications, where they stand
with respect to due dates for their final
decisions on requests for Federal
authorizations.16
16. Commenters expressed the
concern that the Commission could
reach a decision on a schedule for
agency action without first considering
15 This flexibility should alleviate the concern of
commenters such as the City of Fall River,
Massachusetts, regarding situations where
apparently straightforward issues are discovered
during the course of analysis to be more complex
and time-consuming than originally anticipated.
16 The New Jersey DEP recommends that each
State agency reviewing a request for a Federal
authorization be provided with formal notice of the
date the Commission issues a final environmental
document, arguing that ‘‘[w]ithout formal notice
. . . a State agency will not know that the 90-day
review period for a decision has begun.’’ New Jersey
DEP’s Comments at 1 (July 28, 2006). In view of the
Commission’s commitment to issue a formal notice
of the schedule for the environmental review,
agencies should have adequate notice of the
anticipated start date of the last 90 days of the
review period applicable to those agencies without
a schedule set by Federal law. State and Federal
agencies and officers are urged to make use of the
Commission’s eSubscription service as a means to
monitor documents submitted in a proceeding,
updates, and the date of issuance of the
Commission’s EA or final EIS.
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agency comments on authorization
requests. As discussed below, agencies’
reports on authorization requests will
still be due within 30 days of the receipt
of such requests. In addition, it is
expected that project sponsors will
submit as many requests for necessary
Federal authorizations as possible by
the time an application is filed with the
Commission. Therefore, in most cases
the Commission will have
approximately 60 days to consider
agency comments in advance of issuing
the notice of its schedule for the
environmental review, enabling the
Commission to review agencies’ input
in setting the milestones for the
completion of the Commission’s
environmental review.17
17. The Conservation Law Foundation
requests doubling the 90 days following
the issuance of the Commission’s final
environmental document to 180 days,
whereas INGAA and interstate pipelines
promote reducing the time to 30 days.
The Conservation Law Foundation
points out that a final decision on a
request for a necessary Federal
authorization may not be reached
within 90 days of the issuance of the EA
or EIS. The Commission acknowledges
that although infrequent, this can occur.
However, the Commission expects that
project sponsors’ increasing use of the
Commission’s prefiling consultation
process, in conjunction with the
regulatory revisions instituted herein,
will eliminate such delayed
authorization decisions.18 Further, the
Commission believes that providing the
17 As noted above, in minor and routine cases
where issues that might complicate agencies’
reviews are unlikely to arise, the Commission may
issue notice of its environmental schedule in its
initial notice of the filing of an application or
shortly thereafter. However, if concerns regarding
authorization requests are subsequently raised in
agency reports to the Commission, the Commission
would then reconsider the given time frames. In
determining whether a proposal qualifies as minor
and routine, and thereby suitable for processing on
an accelerated schedule, EPA recommends the
Commission first consult with the other agencies
that will be involved. The Commission expects
such projects to be readily identifiable or identified
in the course of a prefiling consultation. The
Commission will not identify a proposal as a
candidate for accelerated processing unless it is
confident of consensus among agencies that it
merits such treatment. An agency may object to any
schedule set by the Commission, and the
Commission will reassess the grounds for its
determination.
18 The Commission notes that for the most part,
instances in which final decisions on requests for
necessary Federal authorizations have not been
reached within the 90-day time frame designated
herein, have involved authorizations for which a
schedule for agency action is established by Federal
law, e.g., a Coastal Zone Management Act (CZMA)
consistency determination or a water quality
certification under section 401 of the Clean Water
Act (CWA). Nothing in this Final Rule will alter
schedules set by Federal law.
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180 days requested would be
incompatible with the EPAct 2005
mandate to ‘‘ensure expeditious
completion’’ of NGA section 3 and 7
proceedings.19 On the other hand, the
Commission finds no reason to adopt a
30-day requirement. Comments in favor
advocate harmonizing the amount of
time provided for agencies to act with
the 30 days from issuance of a
Commission order currently provided
for filing a request for rehearing or
accepting a certificate. The Commission
sees no need to do so, as there is no
evidence that project sponsors are
currently hindered in reaching
decisions on whether to seek rehearing
of the Commission’s orders or accept a
certificate when other agencies take
more than 30 days after an order to
complete action on authorization
requests. The Commission believes that
the 90 days provided strikes an
appropriate balance between providing
adequate time for agencies’ deliberation
and avoiding delay to project sponsors.
18. The NOPR observed that:
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.20
19. Several commenters contend this
observation conflicts with Federal law.
In setting a schedule for agencies to
conclude their reviews of requests for
Federal authorization, the Commission
has no ability to contract or expand a
schedule established by Federal law.
Consequently, there can be no conflict
between a schedule set by the
Commission and a schedule set by
Federal law.21 The Commission’s
observation in the NOPR was no more
than an acknowledgment of current
practice. Agencies frequently complete
their review of certain project
proposals—most often for modest and
uncontroversial facilities—well in
19 EPAct 2005 section 313(c)(1)(A) (2005).
20 71 FR 30632 at 30635 (May 30, 2006); FERC
Stats. & Regs. ¶ 32,601 at 32,558 (2006); 115 FERC
¶ 61,203 at P 17 (2006).
21 Baker Botts raises a related issue in requesting
clarification that an agency presented with an
authorization request must not be permitted to
await the outcome of another agency’s action prior
to commencing its own review. While such an
approach might be viewed as contrary to EPAct
2005’s expressed intent to expedite the review
process for proposed gas projects, provided the
agency in waiting is able to meet its deadline to
reach a final decision—be it established by Federal
law or by the Commission—there would not
necessarily be cause to seek to compel the
recalcitrant agency to commence its review sooner.
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62915
advance of deadlines allotted by Federal
law. The NOPR stated the aspiration
that agencies might continue to do so,
recognizing that in exercising its new
authority to set schedules, the
Commission can only encourage
agencies to act in advance of deadlines
set by Federal law, it cannot compel
them to do so.
20. The Army COE states that the
deadlines established by the
Commission for final agency action will
be ‘‘voluntary and non-binding.’’ 22 This
would be the case if, as discussed above,
the schedule set by the Commission
calling for a shorter time frame did not
meet the EPAct 2005 requirement that it
‘‘comply with applicable schedules
established by Federal law.’’ 23
However, if an agency without a
schedule established by Federal law
fails to meet a deadline set by the
Commission, this ‘‘failure of the agency
to take action * * * in accordance with
the Commission schedule established
pursuant to section 15(c) shall be
considered inconsistent with Federal
Law,’’ and as a result, can be brought to
the attention of the United States Court
of Appeals, which can ‘‘remand the
proceeding to the agency to take
appropriate action consistent with the
order of the Court’’ by the ‘‘schedule
and deadline for the agency to act on
remand’’ that will be set by the court.24
Informing the Commission Upon
Receipt of an Authorization Request
21. New § 385.2013 specifies that
within 30 days of receiving an
authorization request, an agency must
inform the Commission of: (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
22 Army COE’s Comments at 3 (July 31, 2006).
23 EPAct 2005 section 313(c)(1)(B) (2005).
24 EPAct 2005 section 313(d)(2) and (3). Note this
described civil action for the review of an agency’s
alleged failure to act on a requested authorization
does not apply to CZMA determinations, since the
Department of Commerce, not a Federal court, is the
body to review a failure to act on, or the outcome
of, a CZMA request. This section of EPAct 2005 was
recently discussed and applied in Islander East
Pipeline Co. LLC v. Connecticut Department of
Environmental Protection, Docket No. 05–4139–ag
(2d Cir. Oct. 5, 2006); the court found a State agency
acting under delegated Federal authority had not
conducted a complete and reasoned review of a
request for a Federal authorization, and required the
state agency to either do so within 75 days or
abdicate its delegated Federal authority.
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applicable, the schedule set forth by
Federal law for the agency to act.
Further, if an agency asks for additional
information, the agency is to provide the
Commission with a copy of its data
request.25
22. Commenters claim that 30 days is
an unreasonably short time to be able to
render a meaningful assessment of an
authorization request. The Commission
recognizes that 30 days will often be
insufficient for agencies to reach
definitive conclusions on each of the
stipulated aspects of an authorization
request. But that is not the intent.
Instead, the information submission is
intended to give the Commission an
overview to enable it to determine a
realistic timetable for the environmental
review process. The Commission
recognizes that agencies’ reports will
necessarily be provisional and subject to
change, and will take this into account
both when first determining a schedule
for its NEPA review, and thereafter, to
take into account agencies’ progress in
processing authorization requests.
23. For the purpose of measuring the
time for an agency to act on an
authorization request, in the NOPR the
Commission explained the clock begins
to run on the day a request is submitted
to the agency. Interior questions
whether this would be the day a request
is sent or the day it is received; the
Commission clarifies that the day the
agency receives a request is the first day
counted. This is unlikely to be the day
an agency takes official notice that a
complete application has been received
and is ready for processing; rather, this
will be the first day an agency is in
receipt of a formal written request by a
project sponsor for an authorization
needed for a prospective NGA section 3
or 7 project.
24. Commenters are concerned with
the prospect that an agency might
receive a cursory authorization request
that could not be evaluated absent
additional information. The NOPR
stated that if an agency deems a request
to be incomplete, and the project
sponsor fails to provide the necessary
information in time for the agency to
reach a decision by the Commission’s
scheduled deadline, then the agency
25 This establishes the minimum information
required of an agency. EPA, Duke, and Islander East
suggest a more collaborative approach to establish
a schedule. To this end, the Commission invites
agencies to go beyond the requisite minimum and
provide additional information, which the
Commission will consider in exercising its
scheduling responsibilities. Further, in determining
a schedule appropriate to a particular application,
Commission takes into account not only agencies’
input but also the project sponsor’s proposed
construction schedule and in-service date.
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may deny the request.26 In turn, the
Commission may deny the application
before it, or authorization to commence
construction, due to the project
sponsor’s failure to obtain a necessary
Federal authorization. The Commission
reiterates that whether an agency finds
a request complete has no bearing on
the agency’s allotted response time.
That said, the Commission does not
expect to have to frequently reject NGA
applications due to imperfections in
requests for related Federal
authorizations in view of the decision to
revise the procedural schedule, as
described above, to tie agencies’
deadlines to issuance of the EA or final
EIS. This approach to scheduling should
give agencies and applicants adequate
advance notice of when decisions on
requests for Federal authorizations will
be due, and motivate project sponsors to
make all necessary information
available in order for agencies to reach
timely decisions on the merits.
25. The Army COE asks if submitting
an electronic copy to the Commission of
the agency’s response to a project
sponsor’s authorization request would
satisfy the § 385.2013 reporting
requirement. It would, provided the
submission contains the specified
information; moreover, as discussed
herein, submission to the Commission
need not be by electronic means.
Regardless of whether an agency’s
submission is made electronically or by
paper copy, it should be filed in the PF
or CP docket number, if available,
assigned to the project sponsor’s
application to the Commission.
Procedural Clarifications
26. Once an application is filed with
the Commission and a schedule is
established, if a project sponsor seeks to
make a modification to its proposal that
is material to one or more of its
requested Federal authorizations, the
project sponsor should file a description
26 This presumably would be the outcome with
respect to an authorization required for a project if,
as the Oregon Coastal Management Program and
Coastal States Organization speculate, the agency is
unable to obtain all the information needed to make
an appropriate assessment of the proposal in time
to meet the scheduled deadline for a final decision.
Dominion requests that if an agency informs the
Commission that a project sponsor has not
adequately supported its request, then ‘‘the
Commission will give the applicant an opportunity
to respond and cure the alleged deficiencies.’’
Dominion’s Comments at 11 (July 31, 2006). In the
event of a disagreement regarding the adequacy of
the contents of a request for a Federal authorization,
the Commission may find reason to revise an
agency’s deadline for a final decision. However,
although the Commission implores project sponsors
and agencies to work cooperatively, it cannot
compel them to do so. An agency retains the
discretion to reject a request on the grounds that
information necessary to reach a decision is lacking.
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of the modification with the
Commission—regardless of whether the
Commission has approved the
application or whether the modification
would require amendment of the
proposal before the Commission.
NiSource requests the Commission
clarify that a material modification
would include a modification to an
aspect of the proposal that would
substantially change the overall
environmental impacts. The
Commission accepts this
characterization. Following a project
sponsor’s notice to the Commission of a
material modification, it will be within
the discretion of the Director of OEP to
determine whether the modification
will make it impossible for an agency to
reach a final decision on a request for
a Federal authorization within 90 days
of the issuance of the Commission’s
final environmental document.27 If so,
pursuant to § 375.308, the Director of
OEP may establish a revised, separate
deadline for a final decision by that
agency. Finally, a material modification
to a project pending approval by the
Commission may merit revising and renoticing the schedule for the
environmental review. The schedule for
agencies to complete their reviews
would then be adjusted in accordance
with the revised schedule for
completing the NEPA process.
27. The New Jersey DEP suggests that
in submitting a request for a necessary
Federal authorization for an NGA
section 3 or 7 project, the project
sponsor identify the request as such.
The Commission endorses this
suggestion, and urges project sponsors
to include the Commission’s applicable
PF or CP docket number, if available, in
its authorization request. Identifying the
proposed project in this manner, and
informing the agency that the request is
being submitted in conjunction with an
application to the Commission, will
alert the agency of the need to inform
the Commission of its receipt of the
request, pursuant to new § 385.2013.
Agencies, in turn, in submitting a report
to the Commission on the status of a
requested Federal authorization, should
identify the party submitting the
request, identify the proposed project,
and include, if available, the applicable
PF or CP docket number.
27 As one such instance, the Army COE describes
circumstances where a project sponsor made a
material modification that impacted the
authorization request under consideration by the
Army COE after the Commission’s final EIS was
completed. Army COE Comments at 3 (July 31,
2006). In such a case, the project sponsor should
inform the Commission, and where appropriate, a
revised, separate deadline will be established for
the affected agency.
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28. The New Jersey DEP and Delaware
DNR propose making the project
sponsor, rather than the agency
receiving a request for a Federal
authorization, responsible for
submitting to the Commission the
agency’s initial 30-day status report and
any data requests. The Commission sees
disadvantages in having the project
sponsor assume this responsibility. In
part, the aim of the 30-day report is to
open, or extend, the dialogue between
the agency and the Commission, since
the Commission expects to confer with
the responsible agencies over the course
of the NEPA review process. Initial
contact would not necessarily be
established early were the project
sponsor to act as an intermediary
between agencies and the Commission.
The burden on agencies to copy the
Commission on a data request sent to a
project sponsor is minimal; thus, the
Commission finds that rather than
having project sponsors receiving an
agency’s data request forward it on, it is
better, in terms of timing and simplicity,
to have the agency that generates the
data request submit it directly to the
Commission.
29. NMFS suggests the Commission
serve as a central point of contact
linking project sponsors to agencies.
The Commission sees no benefit to
placing itself between the company
seeking to develop a new project and
the agencies responsible for examining
aspects of the proposal. As is,
Commission staff maintains
communication with the project sponsor
and agencies from the receipt of a
request to make use of the prefiling
process through issuance of the final
decision.
30. The Commission declares, in
response to questions raised by INGAA
and Islander East, that the procedures
described herein do not apply to
activities that do not involve ‘‘an
application for authorization under
section 3 or a certificate of public
convenience and necessity under
section 7.’’ 28 For example, auxiliary
installations and the replacement of
facilities under § 2.55, and activities
authorized under the blanket certificate
provisions of Part 157, subpart F, of the
Commission’s regulations, and certain
activities undertaken in response to a
gas emergency, do not require
authorization under NGA section 3 or
issuance of a certificate under NGA
section 7.
31. When a request to authorize a
proposed project under the blanket
certificate provisions is protested, and
the protest is not either dismissed or
28 EPAct 2005 section 313(a)(3) (2005).
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resolved and withdrawn, the ‘‘request
filed by the certificate holder shall be
treated as an application for section 7
authorization for the particular
activity.’’ 29 However, although a
protested blanket project proposal is
treated as an application for a casespecific certificate, once the merits of
the issues raised in the protest are
addressed, and provided the proposal is
not denied, the project is authorized
under the project sponsor’s existing
blanket certificate.30 A project sponsor
that makes a prior notice filing for a
proposed project to be constructed
under blanket certificate authority is
acting under the authority of its existing
blanket certificate issued pursuant to
NGA section 7(c). Consequently, to
undertake projects that comply with the
blanket certificates provisions, the
project sponsor does not need to obtain
an additional, separate NGA section 7(c)
certificate. Therefore, the new
regulatory requirements promulgated
herein pursuant to EPAct 2005 will not
apply to projects authorized pursuant to
the blanket certificate program.
32. The City of Fall River,
Massachusetts, the Massachusetts
EOEA, and the Massachusetts Attorney
General seek clarification on how the
Federal NEPA review and the
environmental review undertaken by a
State or the District of Columbia may
interact. The different environmental
reviews proceed on separate
jurisdictional tracks, each on its own
schedule and each arriving at its own
independent findings. However, as a
practical matter, if Federal and State
agencies are able to work in tandem, the
result can be greater efficiencies for all
concerned. Accordingly, where
possible, the Commission coordinates
its efforts with State agencies when
assessing the environmental impacts of
a proposed project and intends to
continue to do so going forward.
33. Islander East seeks clarification on
how the revised regulations will apply
to pending projects. The Commission, as
a general matter, will not apply the
§§ 153.8 and 157.14 filing requirements
for project sponsors, or the § 385.2013
reporting requirements for agencies, to
applications filed prior to the effective
date of this rule. That said, as noted
above, the Director of OEP currently has
delegated authority to establish
schedules in pending proceedings,31
and if there is cause to do so, the
Director of OEP may establish a
29 18 CFR 157.205(f) (2006).
30 See, e.g., Texas Eastern Transmission Corp., 76
FERC ¶ 61,178 (1996).
31 See note 7.
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62917
schedule applicable to an ongoing
proceeding.
34. Mr. Mark Mendelson is concerned
that the Commission is creating a
‘‘standardized’’ schedule that will not
allow for an adequate assessment of
safety risks and long-term project
impacts of proposed gas projects on
individuals and communities. Mr.
Mendelson expresses general
dissatisfaction regarding the content,
timing, and availability of information
concerning proposed projects. He
contends that affected individuals do
not always receive adequate notice of
proposed projects and suggests all
potential stakeholders be notified by
mail via the United States Postal Service
of potential hazards or risks in their
general locale posed by a proposed
project.
35. The Commission’s new reporting
requirements and commitment to issue
a notice of the environmental review
schedule should serve to inform
potentially interested persons of a
pending project proposal. The
Commission expects that its authority to
establish schedules will lead to tailoring
milestones appropriate to the
particularities of proposed projects, and
not to a one-size-fits-all standard. Mr.
Mendelson’s proposal to review and
revise the existing public notice
requirements is beyond the scope of and
is not germane to the matters being
addressed in this rulemaking
proceeding. However, any affected
landowner that does not receive notice
of a proposed project in a docketed
proceeding as specified in the
Commission’s regulations, or any
individual that suspects the public
notice provided is procedurally
insufficient or substantively incomplete,
can bring such concerns to the
Commission’s attention and the specific
circumstances will be investigated.
Consolidated Record
36. 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.’’
37. The NOPR proposed to require
agencies and officers issuing decisions
or approvals necessary for proposed
projects under NGA sections 3 and 7 to
provide the Commission with a copy of
the final decision reached or action
taken, or a summary thereof, within
three days of issuance of a final decision
or action. The Commission proposed
requiring agencies and officers to file an
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index of the record, identifying all
documents and materials—including
pleadings, comments, evidence,
exhibits, transcripts of testimony,
project alternatives (including
alternative routings), studies, and
maps—relevant to the decision, within
three days of issuance of a final decision
or action.
38. Commenters object to the
proposed requirement that a copy of the
decision and an index to the record be
filed within three days of the decision
and suggest that the Commission allow
30 days for the filing of the decision and
record index. In addition to promoting
a 30-day interval, the Conservation Law
Foundation recommends the
Commission reimburse agencies for
reasonable costs incurred in providing
the index.
39. The Commission accepts the claim
that three days may not provide every
agency with adequate time to organize
and send the requested information—
although, if an agency maintains and
updates its index throughout the course
of its proceeding, all it need do when a
decision is issued is add the decision,
or a summary thereof, to the index and
submit it to the Commission. The
Commission anticipated agencies’
submission of the requested information
would be merely ministerial, i.e., that
the information would be available and
electronically transmittable—or at least,
easily duplicated and then sent—on the
same day a final decision was reached.
Commenters persuasively argue that this
is not the case. In any event, the
Commission does not believe that it is
necessary to receive an agency’s
information within three days of a final
decision in order to satisfy the EPAct
2005 mandate to maintain a complete
consolidated record. Accordingly, the
Final Rule revises the reporting
requirement to provide agencies and
officers 30 days, not three, to submit a
final decision, or summary thereof, and
index to the Commission. Further, while
the Commission encourages electronic
submissions, the proposed regulations
are modified to provide the option to
make paper filings with the
Commission.32 In view of this
modification to the means of filing, the
Commission will modify the time
provided for agencies to file a copy of
data requests with the Commission,
extending it from three days to 10
business days.
40. The Commission finds no cause to
adopt the Conservation Law
32 As is currently the case, agencies will be
expected to conform their filings to the
requirements of 18 CFR 385.2003, to the extent that
they are able.
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Foundation’s request to provide
reimbursement to agencies for expenses
related to compliance with the
provisions of this rule. Compliance is
mandatory pursuant to the authority
provided to the Commission by EPAct
2005. Further, in view of the revision
above regarding the time permitted and
means of submission, and the
clarification below regarding the
contents of the index, the Commission
expects the additional cost incurred by
agencies to meet these new reporting
requirements will not be unduly
burdensome.
41. Commenters’ objections to
submitting an index appear to stem in
part from an overly broad interpretation
of what this index must include. The
Commission clarifies that the index
need not summarize the contents of
each item in the agency’s record; rather,
the index can be any method of notation
capable of identifying each item in the
record sufficiently to allow a reviewing
body to select items of relevance to an
issue on appeal. The Oregon Coastal
Management Program observes that it
typically relies on and references the
outcome of multiple state and local
actions, but does not include in its
record the underlying documents that
make up the record in those other
actions. There is no need for agencies
that follow such an approach to make
any adjustment. Any methodology and
recordkeeping that an agency now
employs that is sufficient to serve as the
basis for appeals or reviews is an
acceptable ‘‘index’’ for the purposes of
the consolidated record. Note that in
filing an index, agencies should title the
submission ‘‘Consolidated Record’’ and
include a prominent reference on the
first page to the docket number applied
to the Commission proceeding which
gave rise to the request for agency
authorization.
42. Baker Botts requests the
Commission require that agencies
provide the Commission with their full
record, and not just an index thereto.
The Commission finds no cause to
require agencies to reproduce and
transmit the contents of their entire
record to the Commission. Only in the
event of appeal will there be any call to
view the original or duplicate materials,
and even then it is unlikely anything
other than a limited subset of the record
will be relevant. Therefore, provided an
index is prepared, and original materials
are retained and available for a
minimum of three years, or until an
appeal or review is concluded, there
should be no delay in producing the
portion of an agency’s record requested
by a reviewing entity.
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43. The Army COE points out that
when it issues a requested permit, the
permit with terms and conditions is sent
to the applicant, which has 60 days to
appeal the terms and conditions if it
chooses to do so; if the permit is denied,
the applicant may appeal the denial.
The Army COE asks that the date of
final agency action for purposes of
providing the record to the Commission
be ‘‘at the end of any appeals process.’’
44. The Commission expects that
individual agencies’ own regulations
will determine when their actions are
considered ‘‘final’’ and thereby start the
30-day clock for filing their decisions
and indices with the Commission.
However, the Commission will consider
a decision or action on a request for a
Federal authorization to be ‘‘final,’’ and
consequently subject to the 30-day
deadline for filing with the Commission,
if the project sponsor submitting the
request can rely on an affirmative
determination as sufficient authority to
proceed. In other words, the agency’s
deliberation must go beyond verification
that a request is complete, or a
preliminary determination, or an agency
decision that approves a project
sponsor’s application but makes its right
to proceed contingent on the outcome of
certain agency review or appeal
processes; i.e., the outcome of the
agency’s final decision or action must
grant, condition, or deny the applicant’s
requested authorization. At this point,
the 30-day period begins for an agency
to provide the Commission with a copy
of its decision, or a summary, and an
index to its record in the proceeding.
The 30-day period should permit the
Commission to receive agencies’
decisions and indices in time to compile
a complete consolidated record for the
purposes of judicial review (or in the
case of a CZMA determination, review
by the Department of Commerce).33
45. The Army COE asserts the
Commission should forward Freedom of
Information Act (FOIA) requests to
agencies, instead of preparing a
response using the consolidated record.
The Commission clarifies that FOIA
requests should be submitted directly to
the agency responsible for generating
the information in question. While an
agency’s index filed with the
33 The Commission notes that when it issues an
order granting a project sponsor a section 7
certificate or section 3 authorization under the NGA
to construct gas facilities, clearance to commence
construction generally is withheld until the project
sponsor has obtained other necessary authorizations
from other agencies. However, once such
authorizations have been obtained by the project
sponsor, the project sponsor generally is granted
clearance to commence construction,
notwithstanding any pending requests for
rehearing.
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Commission may be useful in
identifying records relevant to a FOIA
request, the Commission will not be
capable of effectively responding to
FOIA requests, or other types of
requests, that concern the substantive
matters of another agency’s proceeding.
Further, the Commission’s
responsibilities under EPAct 2005 do
not include compiling documents to
respond to FOIA requests. The
Commission does not expect to receive
or respond to FOIA requests, unless the
information sought is part of the
Commission’s own record of its
deliberations in a particular proceeding.
Information Collection Statement
46. The Office of Management and
Budget (OMB) regulations require that
OMB approve certain reporting, record
keeping, and public disclosure
(collections of information)
requirements imposed by agency
rules.34 Pursuant to OMB regulations,
the Commission is submitting these
reporting requirements to OMB for its
review and approval under section
3507(d) of the Paperwork Reduction Act
of 1995 (PRA).35 Upon approval of a
collection of information, OMB will
assign an OMB control number and an
expiration date. Respondents subject to
the filing requirements of this rule will
not be penalized for failing to respond
to these collections of information
unless the collections of information
display a valid OMB control number.
The information collection requirements
in this Final Rule are: FERC–539, FERC–
537, FERC–606, and FERC–607. These
are mandatory reporting requirements.
Public Reporting Burden
47. The Commission did not receive
specific comments concerning its
burden estimates and uses the same
estimates here in the Final Rule. Several
commenters expressed concern with the
burden that would be imposed if
information was required to be
submitted under the initially proposed
time frame. However, as discussed
herein, the Commission has taken these
comments into consideration and
extended the time frame for submitting
information.
Number of respondents
Number of responses
Hours per response
FERC–537 .......................................................................................................
FERC–539 .......................................................................................................
FERC–606 .......................................................................................................
FERC–607 .......................................................................................................
76
12
48
48
815
12
1702
1654
0.5
0.5
4.4
6.3
408
6
7,489
10,423
Totals ........................................................................................................
........................
........................
........................
18,326
Data collection
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Total Annual Hours for Collection:
18,326.
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
$2,748,900.
Title: FERC–539 ‘‘Gas Pipeline
Certificates: Import/Export Related;’’
FERC–537 ‘‘Gas Pipeline Certificates:
Construction, Acquisition and
Abandonment;’’ FERC–606 ‘‘Gas
Pipeline Certificates: Notification of
Request for Federal Authorization;’’ and
FERC–607 ‘‘Report on Decision or
Action on Request for Federal
Authorization.’’
Action: Data Collection.
OMB Control No.: FERC–539 (1902–
0062); FERC–537 (1902–0060); FERC–
606 and FERC–607 (To be determined).
Respondents: Natural gas pipeline
companies and state agencies and
officers.
Frequency of Responses: On occasion.
34 5 CFR 1320.11 (2006).
36 Order No. 486, Regulations Implementing the
National Environmental Policy Act, 52 FR 47897
(Dec. 17, 1987), FERC Stats. & Regs. Preambles
1986–1990 ¶ 30,783 (1987).
35 44 U.S.C. 3507(d) (2005).
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Necessity of Information: EPAct 2005
section 313 directs the Commission to
(1) establish schedules for State and
Federal agencies and officers to act on
requests for Federal authorizations
required for natural gas projects under
sections 3 and 7 of the NGA and (2)
maintain a complete consolidated
record of all decisions or actions taken
by the Commission and other agencies
and officers with respect to such
authorizations. The Commission
considers the regulatory provisions
adopted herein to be the minimum
necessary for the Commission to
implement the new authority provided
by EPAct 2005.
48. For information regarding the
requirements of the collections of
information and the associated burden
estimates, including suggestions for
reducing this burden, please send
comments to the Federal Energy
Regulatory Commission, 888 First
Street, NE., Washington, DC 20426
(Attention: Michael Miller, Office of the
Executive Director), or send e-mail to
michael.miller@ferc.gov), or to the
Office of Management and Budget
(Attention: Desk Officer for the Federal
Energy Regulatory Commission), by fax
to (202) 395–7285, or by e-mail to
oira_submission@omb.eop.gov.
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Total hours
Environmental Analysis
49. The Commission is required to
prepare an Environmental Assessment
or an Environmental Impact Statement
for any action that may have a
significant adverse effect on the human
environment.36 No environmental
consideration is raised by promulgation
of a rule that is procedural in nature or
that does not substantially change the
effect of legislation or regulations being
amended.37 The regulations adopted
herein require authorizing agencies to
provide the Commission with copies or
summaries of decisions and indices to
the records of those decisions in cases
arising under the Commissions
jurisdiction under the Natural Gas Act.
These are minor procedural changes to
the Commission’s existing regulations
and do not substantially change the
effect of any legislation or regulations.
Nor do they substantially change any
regulatory requirements to which
pipeline companies or authorizing
agencies are currently subject.
Accordingly, the preparation of an
environmental document is not
required.
Regulatory Flexibility Act Certification
50. The Regulatory Flexibility Act of
1980 (RFA) 38 generally requires a
37 18 CFR 380.4(a)(2)(ii) (2006).
38 5 U.S.C. 601–612 (2005).
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description and analysis of final rules
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.
51. Although it appears that agencies
affected by the rule promulgated today
do not fall within the RFA’s definition
of ‘‘small governmental jurisdiction’’ 39
or its definition of ‘‘small entities,’’ 40
the Commission is nevertheless mindful
of costs and burdens to be imposed
upon agencies required to provide
copies of decisions and indexes to the
record in Federal authorization
proceedings. In response to commenters
that observe certain agencies may lack
the resources needed to comply with the
proposed three-day deadline for filing
and the proposed requirement for
electronic filing, the Commission is
adopting alternative requirements to
take into account the resources available
to the agencies to accommodate the
limited resources of small entities.41
The three-day deadline is extended to
30 days, and electronic filing, while still
the preferred option, is no longer
required.
52. Most of the natural gas companies
regulated by the Commission do notfall
within the RFA’s definition of a small
entity.42 Approximately 114 natural gas
companies are potential respondents
subject to the requirements adopted by
this rule. For the year 2004 (the most
recent year for which information is
available), 32 companies had annual
revenues of less than $6.5 million. The
procedural modifications enacted herein
should have no significant economic
impact on those entities—be they large
or small—subject to the Commission’s
NGA jurisdiction. In view of these
considerations, the Commission certifies
that this Final Rule’s amendments to the
regulations will not have a significant
39 5 U.S.C. 601(5) (2005) provides that ‘‘the term
‘small governmental jurisdiction’ means
governments of cities, counties, towns, townships,
villages, school districts, or special districts, with
a populations of less than fifty thousand.’’
40 5 U.S.C. 601(6) (2005) provides that ‘‘the term
‘small entity’ shall have the same meaning as the
terms ‘small business,’ ‘small organization,’ and
‘small governmental jurisdiction.’ ’’
41 5 U.S.C. 603(c)(1) and (2) (2005).
42 See 5 U.S.C. 601(3) (2005), citing section 3 of
the Small Business Act, 15 U.S.C. 623 (2005).
Section 3 of the SBA defines a ‘‘small business
concern’’ as a business which is independently
owned and operated and which is not dominant in
its field of operation. The Small Business Size
Standards component of the North American
Industry Classification System defines a small
natural gas pipeline company as one that transports
natural gas and whose annual receipts (total income
plus cost of goods sold) did not exceed $6.5 million
for the previous year.
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14:48 Oct 26, 2006
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impact on a substantial number of small
entities.
Document Availability
53. 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. From FERC’s Home Page on the
Internet, this information is available in
the Commission’s document
management system, eLibrary. The full
text of this document is available in
eLibrary in PDF and Microsoft Word
format for viewing, printing, and
downloading. To access this document
in eLibrary, type RM06–1 in the docket
number field.
54. User assistance is available for
eLibrary and the Commission’s Web site
during normal business hours at (202)
502–8222 or the Public Reference Room
at (202) 502–8371 Press 0, TTY (202)
502–8659. E-Mail the Public Reference
Room at public.referenceroom@ferc.gov.
Effective Date and Congressional
Notification
55. These regulations are effective
December 26, 2006.
56. The Commission has determined,
with the concurrence of the
Administrator of the Office of
Information and Regulatory Affairs of
OMB, that this rule is not a ‘‘major rule’’
as defined in Section 351 of the Small
Business Regulatory Enforcement
Fairness Act of 1996.43
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.
Frm 00046
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■ In consideration of the foregoing, the
Commission amends 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. In subpart B, § 153.4 is added to
read as follows:
§ 153.4
General requirements.
The procedures in §§ 157.5, 157.6,
157.8, 157.9, 157.10, 157.11, and 157.12
of this chapter are applicable to the
applications described in this subpart.
■ 3. In § 153.8:
■ a. The word ‘‘and’’ is removed from
the end of paragraph (a)(7);
■ b. The period is removed from the end
of paragraph (a)(8), and ‘‘; and’’ is added
in its place; and
■ c. Paragraph (a)(9) is added to read as
follows:
§ 153.8
Required exhibits.
(a) * * *
(9) Exhibit H. 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, that will issue each
required authorization; the date each
request for authorization was submitted;
why any request was not submitted and
the date submission is expected; 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.
■ 5. In § 157.9:
■ a. The section heading is revised;
43 5 U.S.C. 804(2) (2005).
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Magalie R. Salas,
Secretary.
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■ b. The existing text is designated as
paragraph (a) and the word ‘‘business’’
is added immediately before the phrase
‘‘days of filing’’; and
■ c. A new paragraph (b) is added, to
read as follows:
§ 157.9 Notice of application and notice of
schedule for environmental review.
*
*
*
*
*
(b) For each application that will
require an environmental assessment or
an environmental impact statement,
notice of a schedule for the
environmental review will be issued
within 90 days of the notice of the
application, and subsequently will be
published in the Federal Register.
■ 6. In § 157.14, paragraph (a)(12) is
added to read as follows:
§ 157.14
(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, that will
issue each required authorization; the
date each request for authorization was
submitted; why any request was not
submitted and the date submission is
expected; and the date by which final
action on each Federal authorization has
been requested or is expected.
*
*
*
*
*
■ 7. In subpart A, § 157.22 is added to
read as follows:
§ 157.22 Schedule for final decisions on a
request for a Federal authorization
For an application under section 3 or
7 of the Natural Gas Act that requires a
Federal authorization—i.e., a permit,
special use authorization, certification,
opinion, or other approval—from a
Federal agency or officer, or State
agency or officer acting pursuant to
delegated Federal authority, a final
decision on a request for a Federal
authorization is due no later than 90
days after the Commission issues its
final environmental document, unless a
schedule is otherwise established by
Federal law.
PART 375—THE COMMISSION
■ 8. The authority citation for part 375
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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.
■ 9. In § 375.308, paragraph (bb) is
added to read as follows:
14:48 Oct 26, 2006
*
*
*
*
*
(bb) Establish a schedule 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
natural gas projects subject to section 3
or 7 of the Natural Gas Act.
PART 385—RULES OF PRACTICE AND
PROCEDURE
■ 10. 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).
■ 11. Section 385.2013 is redesignated
Exhibits.
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§ 375.308 Delegations to the Director of
the Office of Energy Projects.
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as § 385.2015 and the heading of newly
designated § 385.2015 is revised to read
as follows:
§ 385.2015
Videotapes (Rule 2015).
*
*
*
*
*
■ 12. New §§ 385.2013 and 385.2014 are
added to read as follows:
§ 385.2013 Notification of requests for
Federal authorizations and requests for
further information (Rule 2013).
(a) For each Federal authorization—
i.e., permit, special use authorization,
certification, concurrence, opinion, or
other approval—required under Federal
law with respect to a natural gas project
for which an application has been filed
under section 3 of the Natural Gas Act
for a certificate of public convenience
and necessity under section 7 of the
Natural Gas Act, each Federal agency or
officer, or State agency or officer acting
pursuant to delegated Federal authority,
responsible for a Federal authorization
must file with the Commission within
30 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 agency or officer, or
State agency or officer acting pursuant
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62921
to delegated Federal authority,
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
within 10 business days.
§ 385.2014 Petitions for appeal or review
of Federal authorizations (Rule 2014).
(a) For each Federal authorization—
i.e., permit, special use authorization,
certification, concurrence, opinion, or
other approval—required under Federal
law with respect to a natural gas project
for which an application has been filed
for authorization under section 3 of the
Natural Gas Act for a certificate of
public convenience and necessity under
section 7 of the Natural Gas Act, the
Federal agency or officer, or State
agency or officer acting pursuant to
delegated Federal authority, responsible
for each Federal authorization must file
with the Commission within 30 days of
the effective date of a final decision or
action on a request for a Federal
authorization or the expiration of the
time provided by the Commission or by
Federal law for a final decision or
action, 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 docket number for the
Commission 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. E6–18025 Filed 10–26–06; 8:45 am]
BILLING CODE 6717–01–P
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.