Applications for Authorization To Construct, Operate, or Modify Facilities Used for the Export or Import of Natural Gas
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Federal Register › Vol. 62 › 62 FR 5940
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 153
[Docket No. RM97-1-000]
Applications for Authorization To Construct, Operate, or Modify
Facilities Used for the Export or Import of Natural Gas
February 3, 1997.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Energy Regulatory Commission is issuing a Notice
of Proposed Rulemaking (NOPR) to amend the regulations codifying the
Commission's responsibilities under the Natural Gas Act and Executive
Order 10485, as amended. The Commission proposes to update its
regulations governing the filing of applications for the siting,
construction, and operation of facilities for the import or export of
natural gas under section 3 of the Natural Gas Act and the issuance and
modification of Presidential Permits for the construction and operation
of border facilities. The proposal is necessary to conform the
Commission's regulations to the Commission's current responsibilities,
as delegated by the Secretary of Energy.
DATES: Comments are due no later than April 11, 1997.
ADDRESSES: An original and 14 copies of written comments must be filed.
All filings must refer to Docket No. RM97-1-000 and be addressed to the
Office of the Secretary, Federal Energy Regulatory Commission, 888
First Street, NE, Washington, DC 20426.
FOR FURTHER INFORMATION CONTACT:
Albert J. Francese, Office of the General Counsel, Federal Energy
Regulatory Commission, 888 First Street, NE, Washington, DC 20426,
(202) 208-0736.
Richard W. Foley, Office of Pipeline Regulation, Federal Energy
Regulatory Commission, 888 First Street, NE, Washington, DC 20426,
ederal Energy Regulatory Commission, 888
First Street, NE, Washington, DC 20426.
FOR FURTHER INFORMATION CONTACT:
Albert J. Francese, Office of the General Counsel, Federal Energy
Regulatory Commission, 888 First Street, NE, Washington, DC 20426,
(202) 208-0736.
Richard W. Foley, Office of Pipeline Regulation, Federal Energy
Regulatory Commission, 888 First Street, NE, Washington, DC 20426,
(202) 208-2245.
SUPPLEMENTARY INFORMATION: In addition to publishing the full text of
this document in the Federal Register, the Commission also provides all
interested persons an opportunity to inspect or copy the contents of
this document during normal business hours in the Public Reference
Room, Room 2A, 888 First Street, NE, Washington, DC 20426.
The Commission Issuance Posting System (CIPS), an electronic
bulletin board service, also provides access to the texts of formal
documents issued by the Commission. CIPS is available at no charge to
the user and may be accessed using a personal computer with a modem by
dialing 202-208-1397 if dialing locally or 1-800-856-3920 if dialing
long distance. To access CIPS, set your communications software to
19200, 14400, 12000, 9600, 7200, 4800, 2400, or 1200 bps, full duplex,
no parity, 8 data bits, and 1 stop bit. The full text of this document
will be available on CIPS in ASCII and Word Perfect 5.1 format. CIPS
user assistance is available at 202-208-2474.
CIPS also is available on the Internet through the Fed World
system. Telnet software is required. To access CIPS via the Internet,
point your browser to the URL address: http://www.fedworld.gov and
select the ``Go to the FedWorld Telnet Site'' button. When your Telnet
software connects you, log-on to the FedWorld system, scroll down and
select FedWorld by typing: 1 and at the command line type:/go FERC.
FedWorld also may be accessed by Telnet at the address fedworld.gov
tware is required. To access CIPS via the Internet,
point your browser to the URL address: http://www.fedworld.gov and
select the ``Go to the FedWorld Telnet Site'' button. When your Telnet
software connects you, log-on to the FedWorld system, scroll down and
select FedWorld by typing: 1 and at the command line type:/go FERC.
FedWorld also may be accessed by Telnet at the address fedworld.gov.
Finally, the complete text on diskette in Word Perfect format may
be purchased from the Commission's copy contractor, La Dorn Systems
Corporation. La Dorn Systems Corporation is also located in the Public
Reference Room at 888 First Street, NE, Washington, DC, 20426.
I. Introduction
The Federal Energy Regulatory Commission (Commission) proposes to
amend part 153 of its regulations governing the siting, construction,
and operation of facilities for the import and export of natural gas
between the United States and a foreign country. Part 153 has not been
significantly revised since the Commission's predecessor, the Federal
Power Commission (FPC), recodified its regulations in 1947.1
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\1\ Order No. 141, 12 FR 8596 (December 19, 1947). The part 153
regulations originally became effective on July 11, 1938, in FPC
Order Nos. 52 (section 3 authorizations) and 66 (Presidential
Permits).
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The Commission intends to conform its filing requirements in part
153 to the Commission's current responsibilities as changed by
intervening legislation and Department of Energy (DOE) delegation
orders. The DOE delegation orders divide jurisdiction and authority
over natural gas import and export issues between the Commission and
DOE. Thus, the proposed revisions to part 153 implement the
Commission's currently delegated responsibilities under section
part
153 to the Commission's current responsibilities as changed by
intervening legislation and Department of Energy (DOE) delegation
orders. The DOE delegation orders divide jurisdiction and authority
over natural gas import and export issues between the Commission and
DOE. Thus, the proposed revisions to part 153 implement the
Commission's currently delegated responsibilities under section
3 of the Natural Gas Act (NGA) 2 and Executive Order 10485, as
amended, regarding the construction and operation of facilities for the
import and export of natural gas.3
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\2\ 15 U.S.C. 717b.
\3\ Executive Order 10485, 3 CFR, 1949-1953 Comp., p. 970, as
amended by Executive Order 12038, 3 CFR 1978 Comp., p. 136.
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The proposed regulatory revisions generally make the part 153
regulations current and more readable. To that end, the proposed rule
redefines and clarifies the Commission's role with respect to granting
the authorizations necessary to construct and operate facilities for
the import and export of natural gas between a foreign country and the
United States. The proposed regulations codify existing practice which
requires the applicant proposing to construct LNG facilities to file
exhibits concerning the environmental and safety features of those
facilities. The proposed regulations also delete references to the
Commission's previous authority to approve the import and export of
natural gas.
The changes to the Commission's regulations are proposed to be
effective 60 days after publication of the final rule in the Federal
Register.
II. Information Collection Statement
exhibits concerning the environmental and safety features of those
facilities. The proposed regulations also delete references to the
Commission's previous authority to approve the import and export of
natural gas.
The changes to the Commission's regulations are proposed to be
effective 60 days after publication of the final rule in the Federal
Register.
II. Information Collection Statement
The following collection of information contained in this proposed
rule is being submitted to the Office of Management and Budget (OMB)
for review under Section 3507(d) of the Paperwork Reduction Act of
1995.4 FERC identifies the information provided under part 153 as
FERC-539.
___________
4 44 U.S.C. 3507(d).
Comments are solicited on the Commission's need for this
information, whether the information will have practical utility, the
accuracy of the provided burden estimates, ways to enhance the quality,
utility, and clarity of the information to be collected, and any
suggested methods for minimizing respondents' burden, including the use
of automated information techniques. The burden estimates for complying
with this proposed rule are as follows:
Public Reporting Burden: Estimated Annual Burden:
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Number of Number of Hours per Total annual
Data collection respondents responses response hours
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FERC-539................................................ 12 12 200 2,400
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Number of Number of Hours per Total annual
Data collection respondents responses response hours
----------------------------------------------------------------------------------------------------------------
FERC-539................................................ 12 12 200 2,400
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Total Annual Hours for Collection (Reporting + Recordkeeping, (if
appropriate)) = 2,400.
Based on the Commission's experience with processing applications
for siting and facilities' construction over the last three fiscal
years (FY94-FY96), it is estimated that about 12 filings per year will
be made over the next three years at a burden of 200 hours per filing,
for a total annual burden of 2,400 hours under the proposed
regulations.5 The current annual reporting burden for FERC-539
under the current regulations is 38,400 hours. The simplified filing
requirements under the proposed regulations and a projected reduced
number of filings per year would result in a reduction of 36,000 hours
per year from the current OMB burden inventory for FERC-539 data
collection.
___________
5 The 200 hour burden applies to an application by a pipeline
to construct non-LNG facilities. The 200 hour burden does not
include the environmental burden on non-pipeline applicants
proposing to construct LNG facilities. These applicants would
prepare proposed environmental exhibits E, E-1, and F, which the
Commission identifies as under reporting requirement FERC-577.
ection.
___________
5 The 200 hour burden applies to an application by a pipeline
to construct non-LNG facilities. The 200 hour burden does not
include the environmental burden on non-pipeline applicants
proposing to construct LNG facilities. These applicants would
prepare proposed environmental exhibits E, E-1, and F, which the
Commission identifies as under reporting requirement FERC-577.
Applications for import/export facilities vary in size and
regulatory complexity depending on the project proposed. Accessibility
of documents through commonly available electronic search services,
government bulletin boards, and the public record greatly affects
research time needed to understand the import/export regulatory
structure and application filing requirements. The total burden for a
typical new pipeline application under NGA section 3 is estimated at a
maximum of 200 hours based on an applicant with general knowledge of
the Federal regulatory scheme for natural gas projects. Applications to
amend existing authorizations and Presidential Permits would have a
significantly lesser burden since less background work would be needed.
Information Collection Costs: The Commission seeks comments on the
costs to comply with these requirements. It has projected the average
annualized cost for all respondents to be:
Annualized Capital/Startup Costs--0
Annualized Costs (Operations & Maintenance)--$120,000 ($50 per hour)
Total Annualized Costs--$120,000
The OMB regulations require OMB to approve certain information
collection requirements imposed by agency rule.6 Accordingly,
pursuant to OMB regulations, the Commission is providing notice of its
proposed information collection to OMB.7
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perations & Maintenance)--$120,000 ($50 per hour)
Total Annualized Costs--$120,000
The OMB regulations require OMB to approve certain information
collection requirements imposed by agency rule.6 Accordingly,
pursuant to OMB regulations, the Commission is providing notice of its
proposed information collection to OMB.7
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\6\ 5 CFR 1320.11.
\7\ On December 29, 1996, OMB approved a 90-day extension of
current FERC-539 data collection (from May 31, 1997 until August 31,
1997) to allow the Commission to obtain public comment on its
proposed rule to modify the current reporting requirements.
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Title: FERC-539, Gas Pipeline Certificate: Import/Export.
Action: Proposed Data Collection.
OMB Control No.: 1902-0062. The applicant shall not be penalized
for failure to respond to this collection of information unless the
collection of information displays a valid OMB control number.
Respondents: Business or other for-profit, including small
businesses.
Frequency of Responses: On occasion.
Necessity of the Information: The proposed rule revises the
requirements contained in 18 CFR part 153. Because the Commission no
longer grants authorizations for the import or export of natural gas,
the major filing requirements imposed by FERC-539 are no longer
applicable and revisions of the regulations are needed to reflect these
changes. The implementation of these data requirements will help the
Commission carry out its responsibilities under the Natural Gas Act and
Executive Order 10485, as amended, and coincide with the current
competitive regulatory environment which the Commission fostered under
Order No. 636.
Internal Review: The Commission has assured itself, by means of its
internal review, that there is specific, objective support for the
burden estimates associated with the information requirements
ion of information(s)
and the associated burden estimate(s), please send your comments to the
contact listed above and to the Office of Management and Budget, Office
of Information and Regulatory Affairs, Washington, DC 20503.
[Attention: Desk Officer for the Federal Energy Regulatory Commission,
phone: (202)395-3087, fax: (202)395-7285]
III. Discussion
A. Background and Statutory Authority
Section 3 of the NGA requires prior authorization before exporting
or importing natural gas from or to the United States. Agency
implementation of section 3 has evolved in three stages. Initially, the
FPC was vested with exclusive jurisdiction under section 3 to decide
all natural gas import and export issues, including the authorization
to import and export natural gas and to construct and operate necessary
facilities.8 The FPC also had the authority, pursuant to Executive
Order 10485, as amended, to issue or modify a Presidential Permit for
the construction and operation of border facilities at the
international boundary between the United States and Canada or Mexico.
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\8\ See Distrigas Corporation v. FPC, 495 F.2d 1057 (D.C. Cir.
1974).
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The Department of Energy Organization Act (DOE Act), enacted in
1977, transferred all the FPC's authority over natural gas imports and
exports to the Secretary of Energy ``unless the Secretary assigns such
a function to the [Federal Energy Regulatory] Commission.'' 9
Between October 1, 1977 and February, 1984, DOE and the Commission
shared responsibility over natural gas import and export issues
pursuant to DOE delegation orders (which have since been rescinded)
ransferred all the FPC's authority over natural gas imports and
exports to the Secretary of Energy ``unless the Secretary assigns such
a function to the [Federal Energy Regulatory] Commission.'' 9
Between October 1, 1977 and February, 1984, DOE and the Commission
shared responsibility over natural gas import and export issues
pursuant to DOE delegation orders (which have since been rescinded).
The Secretary of Energy administered his authority over natural gas
import and export issues pursuant to FPC rules in place on September
30, 1977, until DOE issued its own final regulations.10 During
this transition period, however, ``the lines of jurisdiction and
authority between the two agencies [were] not entirely clear.'' 11
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\9\ See sections 301(b), 402(a) and 402(f) of the Department of
Energy Organization Act, 42 U.S.C. 7151(b), 7172(a) and 7172(f).
\10\ DOE's final rules establishing procedures for processing
applications for the import and export of natural gas and revised ex
parte rules became effective on September 6, 1984. 49 FR 35302
(September 6, 1984).
\11\ DOE, New Policy Guidelines and Delegation Orders on the
Regulation of Imported Natural Gas, at 23, 49 FR 6684 (February 22,
1984).
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The Secretary issued new delegation orders 0204-111 and 0204-112,
discussed below, in February 1984, to minimize problems of coordination
on certain import/export issues.12 These delegation orders
allocated regulatory functions concerning the import and export of
natural gas to the Commission and DOE/Economic Regulatory
Administration (ERA).13 DOE and the Commission continue to share
responsibility for determining natural gas import/export issues under
these currently applicable delegation orders.
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gation orders
allocated regulatory functions concerning the import and export of
natural gas to the Commission and DOE/Economic Regulatory
Administration (ERA).13 DOE and the Commission continue to share
responsibility for determining natural gas import/export issues under
these currently applicable delegation orders.
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\12\ Both delegation orders were published at 49 FR 6684
(February 22, 1984).
\13\ Effective on February 7, 1989, the Assistant Secretary for
Fossil Energy (DOE/FE) assumed the delegated responsibilities of the
Administrator of ERA. See DOE Delegation Order No. 0204-127. 54 FR
11436 (March 20, 1989).
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Under DOE Delegation Order 0204-111, effective February 22, 1984,
the Secretary of Energy delegated to the Administrator of ERA authority
under section 3 of the NGA to regulate the import (including the place
of entry) and the export (including the place of exit) of natural
gas.14 On the same date, the Secretary of Energy issued Delegation
Order 0204-112 which delegated to the Commission exclusive authority
over specific import/export matters.
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\14\ The Energy Policy Act of 1992, which added paragraphs (b)
and (c) to section 3 of the NGA, requires the DOE to grant
applications for the import or export of natural gas ``without
modification or delay'' if the United States has a free trade
agreement in effect with the foreign country into which the imported
or exported natural gas flows.
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of 1992, which added paragraphs (b)
and (c) to section 3 of the NGA, requires the DOE to grant
applications for the import or export of natural gas ``without
modification or delay'' if the United States has a free trade
agreement in effect with the foreign country into which the imported
or exported natural gas flows.
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The responsibilities delegated to the Commission include the
authority to approve or disapprove proposals for the construction,
operation, and siting of facilities, and when the construction of new
domestic facilities is involved, the place of entry for imports or
place of exit for exports. The Commission's delegated authority is
subject to DOE's right of disapproval if the Administrator finds
disapproval to be appropriate ``in the circumstances of a particular
case.'' Thus, under the most recent and presently applicable delegation
orders, the facility and siting aspects of natural gas import and
export are delegated and assigned to the Commission for determination
of the public interest.
Section 3 of the NGA provides that the Commission ``shall issue an
order upon application, unless * * * it finds that the proposed
exportation or importation will not be consistent with the public
interest.'' The Commission determines the public interest in particular
proceedings upon consideration of all relevant factors
d assigned to the Commission for determination
of the public interest.
Section 3 of the NGA provides that the Commission ``shall issue an
order upon application, unless * * * it finds that the proposed
exportation or importation will not be consistent with the public
interest.'' The Commission determines the public interest in particular
proceedings upon consideration of all relevant factors. For example,
the Commission will authorize the construction and operation of import/
export facilities under NGA section 3 upon its conclusion that the
proposal is necessary to access new foreign gas supplies and to deliver
imported gas to an industrial user.15 The Commission will also
grant authorization under NGA section 3 if the Commission concludes
that the new construction will enhance system reliability, flexibility,
the dependability of international energy trade, and will not adversely
affect the service or rates of existing customers.16
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\15\ See National Steel Corporation, 45 FERC para. 61,100
(1988).
\16\ Great Lakes Transmission Limited Partnership, 76 FERC para.
61,148 (1996).
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A person applying to the Commission for authority under section 3
must also apply to the Commission, pursuant to DOE Delegation Order No.
0204-112, for the issuance of a Presidential Permit or an amendment to
an existing Presidential Permit if the proposed facilities are to be
located at the borders of the United States and Canada or Mexico. A
Presidential Permit authorizes the applicant to construct, operate,
maintain, or connect natural gas pipeline facilities at the
international borders
pursuant to DOE Delegation Order No.
0204-112, for the issuance of a Presidential Permit or an amendment to
an existing Presidential Permit if the proposed facilities are to be
located at the borders of the United States and Canada or Mexico. A
Presidential Permit authorizes the applicant to construct, operate,
maintain, or connect natural gas pipeline facilities at the
international borders.
The Commission has the jurisdiction, pursuant to Executive Order
10485, as amended, to condition a Presidential Permit ``as the public
interest may in its judgment require.'' 17 In addition, Executive
Order 10485, as amended, requires the Commission to obtain the
concurrence of the Secretary of State and the Secretary of Defense who
will consider foreign policy and national security aspects of the
application.
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\17\ These conditions are stated as ``articles'' in the body of
a Presidential Permit. The articles describe the facilities, design
capacity, nature of the service and include various uniform
provisions concerning transferability of the Presidential Permit or
facilities, inspection and access to the facilities, liability for
damages, filing of information, removal of facilities, possession by
the United States, and control by a foreign government.
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An applicant proposing to alter a term of an existing Presidential
Permit that does not also necessitate new construction, e.g., a
revision to the authorized operating or design capacity of an existing
import/export facility,
removal of facilities, possession by
the United States, and control by a foreign government.
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An applicant proposing to alter a term of an existing Presidential
Permit that does not also necessitate new construction, e.g., a
revision to the authorized operating or design capacity of an existing
import/export facility,
must file to amend its Presidential Permit.18 That applicant,
however, does not also require section 3 authorization. On the other
hand, the applicant granted authorization under NGA section 3 does not
require a Presidential Permit for the construction of natural gas
import/export facilities located at tidewater or on the border of the
United States and international waters.19
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\18\ See Panhandle Eastern Pipe Line Company, 62 FERC para.
61,190 (1993).
\19\ See EcoElectrica, L.P., 75 FERC para. 61,157 (1996), Yukon
Pacific Corporation 39 FERC para.61,216 (1987), and Phillips
Petroleum Company, 37 FPC 777 (1967).
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B. Objectives of the Proposed Rule.
Part 153 currently imposes specific filing requirements on
applicants for authorization under section 3 and Executive Order 10485,
as amended, to site, construct, and operate facilities for the import
or export of natural gas.20 The proposed part 153 incorporates
basic housekeeping changes to eliminate obsolete and redundant language
and sections. The proposed part 153 also makes conforming changes to
regulations to reflect the Commission's diminished responsibilities in
the regulation of natural gas imports and exports under DOE's currently
effective delegation orders.
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orates
basic housekeeping changes to eliminate obsolete and redundant language
and sections. The proposed part 153 also makes conforming changes to
regulations to reflect the Commission's diminished responsibilities in
the regulation of natural gas imports and exports under DOE's currently
effective delegation orders.
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\20\ Thus, the part 153 regulations and this NOPR do not address
filing requirements applicable to the construction of any connecting
facilities transporting natural gas in interstate commerce. Such
facilities would be within the scope of section 7 and the
Commission's part 157 regulations.
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The proposed rule also updates the type of information and exhibits
that an applicant must include in its application. The Commission
proposes to revise its filing requirements to match its current
responsibilities and does not propose to change its substantive
policies.
Other proposed changes to part 153 reflect the separate but related
nature of the Commission's and DOE's responsibilities concerning
natural gas import and export issues. The Commission's proposed
revisions will make clear that the part 153 regulations apply only to
the siting, construction, operation, or modification of facilities for
the import or export of natural gas. On the other hand, DOE's
responsibility is the authorization of requests to import/export
natural gas.21
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\21\ Under DOE regulations, applications must be filed at least
60 days prior to the proposed import or export, unless a later date
is permitted for good cause shown. See 10 CFR 590.202. DOE processes
applications for import/export authority on an expedited basis.
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\21\ Under DOE regulations, applications must be filed at least
60 days prior to the proposed import or export, unless a later date
is permitted for good cause shown. See 10 CFR 590.202. DOE processes
applications for import/export authority on an expedited basis.
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Proposed Sec. 153.6, codifying current Commission practice,
requires that an application to the Commission under section 3 be filed
simultaneously with or after the filing of the related application with
DOE for authority to import or export natural gas.22 The
information an applicant must file with FERC to support its requested
authorization is different from that required to be filed to support an
application to import/export natural gas.23
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\22\ The person filing with DOE for import or export
authorization may be a shipper of the FERC applicant and need not be
the FERC applicant.
\23\ DOE's regulations permit an applicant to submit copies of
relevant documents filed or intended to be filed with FERC to
satisfy the requirements of DOE's regulations. See 10 CFR 590.202.
These regulations would permit a DOE applicant to submit its
application before FERC to satisfy DOE's requirement that the
applicant provide a description of the facilities to be used or
constructed for the proposed import/export. The information that a
DOE applicant files with DOE concerning imports/exports would not,
however, generally satisfy the informational requirements of part
153.
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C. Electronic Filing
y DOE's requirement that the
applicant provide a description of the facilities to be used or
constructed for the proposed import/export. The information that a
DOE applicant files with DOE concerning imports/exports would not,
however, generally satisfy the informational requirements of part
153.
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C. Electronic Filing
The Commission is not proposing to modify part 153 at this time to
require an applicant to file its applications on electronic media. The
Commission will review in a future proceeding the electronic filing
requirements for the entire certificate application process, including
existing electronic filing requirements for part 157 applications and
appropriate electronic filing procedures to adopt for part 153
applications. The Commission will determine where changes are necessary
to reflect current policies and modify existing electronic filing
requirements as necessary to streamline and update the filing process.
As was done in NOPRs in Docket Nos. RM95-3-000 24 and RM95-4-
000,25 the Commission will solicit participation of the industry
and other users of filed information in formulating final electronic
filing instructions.
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\24\ Filing and Reporting Requirements for Interstate Natural
Gas Company Rate Schedules and Tariffs, 60 FR 3111 (January 13,
1995).
\25\ Revisions to Uniform System of Accounts, Forms, Statements,
and Reporting Requirements for Natural Gas Companies, 60 FR 3141
(January 13, 1995).
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D. The Revised Regulations
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\24\ Filing and Reporting Requirements for Interstate Natural
Gas Company Rate Schedules and Tariffs, 60 FR 3111 (January 13,
1995).
\25\ Revisions to Uniform System of Accounts, Forms, Statements,
and Reporting Requirements for Natural Gas Companies, 60 FR 3141
(January 13, 1995).
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D. The Revised Regulations
The proposed part 153 is arranged by subparts. General provisions,
including the regulatory purpose and definitions, are set out in
subpart A. Applications under NGA section 3 and applications for a
Presidential Permit are addressed in subparts B and C, respectively,
with revised section designations. The requirements for paper filing
and certain procedural matters are set forth in subpart D.
Since the amendments to part 153 are extensive (with some
regulatory text retained and other text deleted), it is appropriate to
republish the entire regulatory text of part 153 instead of identifying
many fragmentary amendments to the current text. The proposed
regulations are discussed below.
1. Part 153--Applications for Authorization To Construct, Operate or
Modify Facilities Used for the Export or Import of Natural Gas
The Commission proposes the new heading for part 153 to replace the
current heading (application for authorization to export or import
natural gas).
2. Authority Citation
The Commission is proposing to revise the authority citation for
part 153 to reflect current legal authority--DOE Delegation Order No.
0204-112 and Executive Order 10485, as amended by Executive Order
12038.
3. Subpart A--General Provisions
a. Section 153.1 Purpose. Proposed Sec. 153.1 states that the
purpose of part 153 is to implement the Commission's authorities
delegated under section 3 of the Natural Gas Act and Executive Order
10485, as amended. Part 153 establishes revised procedures for applying
for authorization under section 3 and for a Presidential Permit.
b. Section 153.2 Definitions
3. Subpart A--General Provisions
a. Section 153.1 Purpose. Proposed Sec. 153.1 states that the
purpose of part 153 is to implement the Commission's authorities
delegated under section 3 of the Natural Gas Act and Executive Order
10485, as amended. Part 153 establishes revised procedures for applying
for authorization under section 3 and for a Presidential Permit.
b. Section 153.2 Definitions. The Commission is proposing to
define the terms ``DOE/FE'' (Department of Energy/Office of Fossil
Energy), ``NBSIR'' (National Bureau of Standards Information Report),
and ``person'' for purposes of part 153.
The Commission proposes in Sec. 153.2 to cross-reference DOE's
definition of ``person'' stated at 10 CFR 590.102(m), which DOE uses
for purposes of considering applications for import/export
authorization.26 A ``person'' is defined by DOE as ``any
individual, firm, estate, trust, partnership, association, company,
joint-venture, corporation, United States local, state and federal
governmental unit or instrumentality thereof, charitable, educational
or other institution, and others including any officer, director,
owner, employee, or duly authorized representative of the foregoing.''
The Commission's proposed definition replaces the undefined use of
``person'' in current Sec. 153.1(a) with a comprehensive listing of
potential applicants.
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\26\ 10 CFR 590.102(m).
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The proposed new definition would by its own terms automatically
incorporate any future changes by DOE
in its definition of ``person.'' The proposed definition would not
change current Commission practice in processing applications under
section 3 or Executive Order 10485, as amended. The Commission would
administer the proposed definition of ``person'' consistent with its
statutory authority.27
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y future changes by DOE
in its definition of ``person.'' The proposed definition would not
change current Commission practice in processing applications under
section 3 or Executive Order 10485, as amended. The Commission would
administer the proposed definition of ``person'' consistent with its
statutory authority.27
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\27\ The Commission has plenary and elastic authority under NGA
section 3 to prevent gaps in regulation between Federal and local
jurisdiction as applied to import and export facilities. See
Distrigas Corporation v. FPC, 495 F.2d 1057 at 1064 (D.C. Cir.
1974).
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4. Subpart B--Application under Section 3
a. Section 153.5 Who Shall Apply. Proposed Sec. 153.5(a) retains
the requirement that a person file an application to seek authorization
under section 3 and adds a new provision, codifying current practice,
requiring the filing of an application in order to amend an existing
authorization. References to the necessity of filing an application for
import/export authority are deleted.
Current Sec. 153.1(b) is rewritten as proposed Sec. 153.5(b) to
revise and restate the current cross-reference to Presidential Permits
as a requirement that an applicant must also simultaneously apply under
subpart C for a Presidential Permit for the construction of border
facilities at the international boundary between the United States and
Canada or Mexico.
b. Section 153.6 Time of Filing. Current filing requirements as to
the form and number of paper copies of applications are deleted from
current Sec. 153.2 and are included in new subpart D to avoid
duplication of regulatory text.
The portion of the third sentence of current Sec. 153.2 stating the
time of making applications for the import and export of natural gas is
deleted. In its place, proposed Sec
153.6 Time of Filing. Current filing requirements as to
the form and number of paper copies of applications are deleted from
current Sec. 153.2 and are included in new subpart D to avoid
duplication of regulatory text.
The portion of the third sentence of current Sec. 153.2 stating the
time of making applications for the import and export of natural gas is
deleted. In its place, proposed Sec. 153.6 codifies current practice to
require the simultaneous or prior filing of an application with DOE for
authority to import or export natural gas. Proposed Sec. 153.6
recognizes the related nature of applications before the Commission and
DOE. The current section heading is revised.
c. Section 153.7 Contents of Application. Proposed Sec. 153.7
eliminates obsolete references in the text and heading of current
Sec. 153.3 to information concerning import or export applications and
to filing fees.28 Informational requirements in current
Secs. 153.3(a) through 153.3(c) identify the applicant. These
informational requirements are revised and retained in proposed
Sec. 153.7(a)(1) through (a)(3) with a paragraph heading added. The
informational requirements in current Secs. 153.3(d) through 153.3(f)
are deleted because they are associated with the import and export of
natural gas.
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\28\ The informational filing requirements in proposed
Secs. 153.7 and 153.8 are proposed to apply to applications under
subpart C for Presidential Permits for the construction of import/
export facilities at the border as well.
---------------------------------------------------------------------------
f
natural gas.
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\28\ The informational filing requirements in proposed
Secs. 153.7 and 153.8 are proposed to apply to applications under
subpart C for Presidential Permits for the construction of import/
export facilities at the border as well.
---------------------------------------------------------------------------
The requirement in current paragraph 153.3(g) to describe proposed
facilities is retained, expanded, and redesignated as proposed
Sec. 153.7(b) with a separate paragraph heading added. The information
required by Sec. 153.7(b) should provide the Commission with sufficient
details of the applicant's proposal to permit the Commission to process
applications under subparts B and C, as applicable.
Proposed Sec. 153.7(b) requires the applicant to include a summary
of its proposal. In addition, proposed Sec. 153.7(b) requires the
applicant to file a description of the proposed facilities and a
description of state, foreign, or other Federal licenses or permits for
the construction or operation of facilities (revising a similar
requirement in current Sec. 153.11(d) applicable to Presidential
Permits). The reference in current Sec. 153.11(d) to permits in
connection with the import/export of natural gas is deleted. Proposed
Sec. 153.7(b) includes a new requirement that the applicant must also
state the status of any non-FERC regulatory proceedings (United States
or foreign) related to the proposal.
Proposed Sec. 153.7(c) requires the applicant to file two
statements with its application. One statement reflects a revision of
the requirement in current Sec. 153.3(h)(1) that an applicant
demonstrate that its proposal will not be inconsistent with the public
interest and the other statement requires, for the first time, a
description of the nature of the transportation service offered. A
separate heading is added. Proposed Sec
plicant to file two
statements with its application. One statement reflects a revision of
the requirement in current Sec. 153.3(h)(1) that an applicant
demonstrate that its proposal will not be inconsistent with the public
interest and the other statement requires, for the first time, a
description of the nature of the transportation service offered. A
separate heading is added. Proposed Sec. 153.7(c)(1) identifies
illustrative elements of the public interest (without restriction on
the Commission's ability to request other information as necessary in
proposed Sec. 153.21(b) to cure deficiencies in an application.
The first illustrative element of the public interest is reflected
in Commission precedent under NGA section 3 (and section 7) and is not
part of the current part 153 regulations.
Proposed Sec. 153.7(c)(1)(i) requires the applicant to file a
statement demonstrating that the proposal will access new foreign
supplies of natural gas and new markets, enhance system reliability and
flexibility and not impair service to existing customers. For example,
a freeze-up of Gulf coast production platforms may require increased
reliance on Canadian or Mexican-source natural gas, which could
necessitate the construction of additional border-crossing facilities.
Also, the possibility of a break-down in service over critical energy
corridors at the borders or the existence of transportation bottlenecks
could warrant the construction of looping transportation facilities.
Proposed Sec. 153.7(c)(1)(ii) deletes the reference to bundled
sales service in current paragraph (h)(2) and substitutes
``transportation service'' in the provision requiring the applicant to
show that the proposal will not impair service to United States
customers.
Proposed Sec. 153.7(c)(iii) revises the requirement to file a
statement describing certain contracts in current Sec. 153.11(c)
applicable to Presidential Permits. Proposed Sec
ce to bundled
sales service in current paragraph (h)(2) and substitutes
``transportation service'' in the provision requiring the applicant to
show that the proposal will not impair service to United States
customers.
Proposed Sec. 153.7(c)(iii) revises the requirement to file a
statement describing certain contracts in current Sec. 153.11(c)
applicable to Presidential Permits. Proposed Sec. 153.7(c)(iii)
requires the applicant for section 3 authorization to file a statement
describing any existing contracts involving the control of operations
at import/export facilities or transportation rates that could prevent
competing United States companies from extending their activities in
the same general area. Such agreements could interfere with free trade
in natural gas between the United States and Canada or Mexico. They may
also be inconsistent with proposed Sec. 153.10 which provides that
section 3 authorizations are not exclusive to the holder.
Proposed Sec. 153.7(c)(2) establishes a new requirement that the
applicant include a statement that the proposed import/export
facilities will be used: (1) To render transportation services under
Part 284, (2) to provide private transportation, or (3) to provide
service that is exempt from the provisions of the NGA pursuant to
sections 1(b) or 1(c) thereof.29 This requirement will enable the
Commission to determine whether the applicant's operations are
consistent with the Commission's open access transportation policies.
Current Sec. 153.5 (other information) is redesignated as proposed
Sec. 153.21(b)(rejection of applications), and Sec. 153.5 is deleted.
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r 1(c) thereof.29 This requirement will enable the
Commission to determine whether the applicant's operations are
consistent with the Commission's open access transportation policies.
Current Sec. 153.5 (other information) is redesignated as proposed
Sec. 153.21(b)(rejection of applications), and Sec. 153.5 is deleted.
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\29\ Section 1(b) states that the provisions of the NGA apply,
inter alia, to the transportation of natural gas in interstate
commerce but not to ``any other transportation,'' the local
distribution of natural gas, or the production or gathering of
natural gas. Section 1(c) exempts a Hinshaw pipeline from the
provisions of the NGA. The Commission, however, regulates the
activities of these exempt entities in foreign commerce under
section 3. See, e.g., Vermont Gas System, Inc., 24 FERC para. 61,366
(1983) (LDC); Interenergy Sheffield Processing, 78 FERC para. 61,085
(1997) (gathering); and Havre Pipeline Company, et al., 71 FERC
para. 61,292) (1995) (intrastate pipeline/gatherer engaging in
foreign commerce).
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d. Section 153.8 Required Exhibits. The Commission proposes to
redesignate current Sec. 153.4 as proposed Sec. 153.8, which retains
the requirement to file current Exhibits A through C in new paragraphs
(a)(1), (a)(2), and (a)(3), respectively, with editorial revisions.
Current Exhibit A is revised to incorporate the requirement of current
Sec. 153.11(a)(3) that an applicant for a Presidential Permit describe
the amount and classes of capital stock issued by a corporate applicant
and the nationality of officers, directors, and stockholders, and the
amount and class of stock held by each. The Commission proposes to
eliminate obsolete exhibits D and E (contracts for the export or import
of natural gas).
Proposed Sec
of current
Sec. 153.11(a)(3) that an applicant for a Presidential Permit describe
the amount and classes of capital stock issued by a corporate applicant
and the nationality of officers, directors, and stockholders, and the
amount and class of stock held by each. The Commission proposes to
eliminate obsolete exhibits D and E (contracts for the export or import
of natural gas).
Proposed Sec. 153.8(a) requires an applicant to file new exhibits D
(copy of any construction and operation agreements), E (LNG-related
engineering data), E-1 (LNG-related seismic information for certain
facilities), and F (an environmental report required by part 380 for
LNG and non-LNG related facilities). Applicants may refer to the
``Guidance Manual for Environmental Report Preparation'' to assist in
the preparation of these exhibits.
New exhibit D codifies current practice in processing applications
under section 3 for pipeline facilities, which do not involve the
import/export of LNG. Exhibit D requires the applicant to verify the
business feasibility of the import/export project by filing copies of
construction and operation agreements. These contracts will show how
the applicant and its Canadian or Mexican counterpart intend to jointly
construct and operate the border-crossing facilities.
New exhibits E, E-1, and F codify existing practice which requires
an applicant for the construction of LNG facilities to provide
sufficient information that will enable the Commission to determine
whether the new facilities will be constructed and operated safely and
with minimal adverse environmental impact. These exhibits are justified
by the significant safety and environmental implications of LNG
terminal facilities. The proposed rule revises the existing map exhibit
as proposed Exhibit G to eliminate the current reference to a scale not
greater than 20 miles to the inch and, in its place, to require a map
of suitable scale.
e. Section 153.9 Transferability. The Commission proposes to
redesignate current Sec
e justified
by the significant safety and environmental implications of LNG
terminal facilities. The proposed rule revises the existing map exhibit
as proposed Exhibit G to eliminate the current reference to a scale not
greater than 20 miles to the inch and, in its place, to require a map
of suitable scale.
e. Section 153.9 Transferability. The Commission proposes to
redesignate current Sec. 153.6 as Sec. 153.9, revise current paragraph
(a) to delete references to authorizations for the import/export of
natural gas, and substitute references to authorizations under section
3. Proposed Sec. 153.9 adds headings to current paragraphs (a) and (b)
to clarify that authorizations under subpart B are not transferable or
assignable.
f. Section 153.10 Authorization Not Exclusive. The Commission
proposes to redesignate current Sec. 153.7 as Sec. 153.10 and to revise
the current regulation to eliminate references to authorizations for
the import/export of natural gas, replacing them with references to
authorizations for construction and operation under section 3 of the
NGA. Under proposed Sec. 153.10, which codifies current Commission
practice, if the Commission authorizes the construction of facilities
pursuant to section 3, the Commission is not prevented from granting
authorization to another applicant under section 3 at the same general
location.30 Current Sec. 153.8 (filing of import/export contracts,
rate schedules, etc.) is proposed to be deleted as obsolete.
---------------------------------------------------------------------------
\30\ See, e.g., Tenneco Baja California Corporation, 75 FERC
para. 61,192 (1996) and Pacific Interstate Offshore Company, 74 FERC
para. 61,350 (1996).
---------------------------------------------------------------------------
ing of import/export contracts,
rate schedules, etc.) is proposed to be deleted as obsolete.
---------------------------------------------------------------------------
\30\ See, e.g., Tenneco Baja California Corporation, 75 FERC
para. 61,192 (1996) and Pacific Interstate Offshore Company, 74 FERC
para. 61,350 (1996).
---------------------------------------------------------------------------
5. Subpart C--Application for a Presidential Permit
a. Section 153.15 Who Shall Apply. The existing heading prefacing
current Secs. 153.10 through 153.12 is deleted and replaced with a more
concise heading (Application for a Presidential Permit) substituted
under a new subpart C of part 153. The Commission is proposing to
redesignate current Sec. 153.10 as Sec. 153.15 and to divide proposed
Sec. 153.15 into paragraphs (a) and (b) with individual headings.
The Commission is proposing to use the same definition of person in
paragraph (a) as is used in subpart B and is deleting the reference in
current Sec. 153.10 to any ``person, firm or corporation.'' It is
appropriate to use the same definition because the same entity that
applies under subpart C to construct and operate border facilities
would need to apply for authorization under subpart B. Proposed
paragraph (b) cross-references the requirement to file simultaneously
an application under subpart B for the siting or construction of
facilities, deleting the current cross-reference to applications for
authorization to import or export natural gas.
b. Section 153.16 Contents of Application. The Commission is
proposing to redesignate current Sec. 153.11 as Sec. 153.16, with a
revised heading. Filing requirements for Presidential Permit
applications stated in the first sentence of current Sec. 153.11 are
deleted and relocated to new subpart D of part 153. Obsolete references
to the payment of filing fees are deleted
r export natural gas.
b. Section 153.16 Contents of Application. The Commission is
proposing to redesignate current Sec. 153.11 as Sec. 153.16, with a
revised heading. Filing requirements for Presidential Permit
applications stated in the first sentence of current Sec. 153.11 are
deleted and relocated to new subpart D of part 153. Obsolete references
to the payment of filing fees are deleted.
Current informational requirements for filing an application for a
Presidential Permit for the construction or modification of border
facilities are virtually identical to the current informational
requirements for applications under NGA section 3. Thus, to avoid
duplication of regulatory text, filing requirements for applications
for Presidential Permits are the same as those stated in subpart B for
section 3 authorization. Proposed Sec. 153.16(a) states that an
applicant for a Presidential Permit for the construction and operation
of border facilities that complies with the informational filing
requirements under subpart B is not required to satisfy separate filing
requirements under subpart C.
Accordingly, current Secs. 153.11(a)(1) and (a) (2) and the first
part of paragraph (a)(3) are deleted as they duplicate the same
provisions in proposed Sec. 153.7(a). The remainder of current
Sec. 153.11(a)(3) is redesignated in proposed Sec. 153.8 (Exhibit A).
Current Sec. 153.11(a)(4) is revised to update references to applicants
``subventioned'' (subsidized) by a foreign government and is relocated
to proposed Sec. 153.7(a)(3). Current Sec. 153.11(b), requiring an
applicant to file a map, is deleted because it duplicates the same
requirement in current Sec. 153.4 and proposed Sec. 153.8(a)(8)
(Exhibit G).
Current Sec. 153.11(c), concerning anti-competitive agreements, and
Sec. 153.11(d), concerning permits granted by a foreign government, are
revised to eliminate out-dated references to bundled gas service,
``landing licenses,'' and import/export permits
licant to file a map, is deleted because it duplicates the same
requirement in current Sec. 153.4 and proposed Sec. 153.8(a)(8)
(Exhibit G).
Current Sec. 153.11(c), concerning anti-competitive agreements, and
Sec. 153.11(d), concerning permits granted by a foreign government, are
revised to eliminate out-dated references to bundled gas service,
``landing licenses,'' and import/export permits. These sections are
redesignated as proposed Secs. 153.7(c)(1)(iii) and 153.7(b),
respectively.
Certain amendments to an existing Presidential Permit do not
involve related section 3 applications because these amendments do not
propose the construction or modification of import/export facilities.
For example, an applicant may propose to revise articles of an existing
Presidential Permit that deal with non-facilities issues, e.g.,
authorized design capacity, name of the Permittee, or whether the
facility may be used both to import and export natural gas. Proposed
Sec. 153.16(b) requires that applicant to provide information
identifying itself pursuant to proposed Sec. 153.7(a) and to fully
explain and justify its proposed amendment. This applicant would not be
required to provide the remainder of information required by proposed
Secs. 153.7 and 153.8, applicable to the construction of facilities.
Current Sec. 153.12, authorizing the Commission to request such
other
information in connection with an application as it may deem pertinent,
is deleted. In its place, proposed Sec. 153.21(b) authorizes the
Commission to direct the applicant to file such information as may be
necessary to cure a deficient application.
c. Section 153.17 Effectiveness of Presidential Permit. Proposed
Sec. 153.17 codifies the Commission's existing practice of requiring a
Permittee to accept an issued Presidential Permit by executing, with
proof of proper authorization, the Testimony of Acceptance of the
Presidential Permit
n to direct the applicant to file such information as may be
necessary to cure a deficient application.
c. Section 153.17 Effectiveness of Presidential Permit. Proposed
Sec. 153.17 codifies the Commission's existing practice of requiring a
Permittee to accept an issued Presidential Permit by executing, with
proof of proper authorization, the Testimony of Acceptance of the
Presidential Permit. The Permittee would be required to file a copy of
the executed Testimony of Acceptance with the Secretary prior to the
start of construction.31
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\31\ See MidCon Texas Pipeline Corporation, 77 FERC para. 61,205
(1996).
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6. Subpart D--Paper Media and Other Requirements
a. Section 153.20 General Rule. The Commission proposes to
relocate its current filing requirements for paper media in subpart D.
b. Section 153.21 Conformity with Requirements. Proposed
Sec. 153.21 states the requirement that an application must conform to
the requirements of part 153.
c. Section 153.22 Amendments and Withdrawals. Proposed Sec. 153.22
applies the Commission's Rules of Practice and Procedure applicable to
amending or withdrawing pleadings to amending or withdrawing an
application under subpart B or subpart C of part 153.
d. Section 153.23 Reporting Requirement. The NOPR would delete as
obsolete the only post-authorization reporting requirement in current
part 153.32 Interstate pipelines are currently required to file
operational information about facilities authorized under section 3 in
their FERC Form No. 2 (annual report), FERC Format No. 567 (annual
system flow diagram), and annual report of estimated peak capacity
pursuant to 18 CFR 284.12.
---------------------------------------------------------------------------
requirement in current
part 153.32 Interstate pipelines are currently required to file
operational information about facilities authorized under section 3 in
their FERC Form No. 2 (annual report), FERC Format No. 567 (annual
system flow diagram), and annual report of estimated peak capacity
pursuant to 18 CFR 284.12.
---------------------------------------------------------------------------
\32\ Current Sec. 153.8 (filing of import/export contracts and
rate schedules pursuant to part 154 of the Commission's
regulations).
---------------------------------------------------------------------------
Commission regulations, however, do not require applicants which
are not natural gas companies to file operational information with the
Commission concerning facilities authorized under section 3.33
Accordingly, the Commission proposes in Sec. 153.23 to require
applicants which are not otherwise required to file operating
information concerning facilities authorized under section 3 with the
Commission to report the completion of construction or modification,
the date service commenced, and annually the continued operation of the
import/export facilities.34
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\33\ The Commission has imposed such reporting as a condition in
individual section 3 proceedings. See, e.g., Yukon Pacific Company,
L.P., 71 FERC para. 61,197 (1995) and EcoElectrica, L.P., 75 FERC
para. 61,157 (1996).
\34\ Effective November 13, 1995, the Commission eliminated its
annual report of import/export volumes in FPC Form 14. See Final
rule, Revisions to Uniform System of Accounts, Forms, Statements and
Reporting Requirements for Natural Gas Companies, 60 FR 53019
(October 11, 1995). The Commission eliminated FPC Form 14 because
importers/exporters currently file quarterly reports with DOE/FE
including the same volume and price information.
---------------------------------------------------------------------------
ee Final
rule, Revisions to Uniform System of Accounts, Forms, Statements and
Reporting Requirements for Natural Gas Companies, 60 FR 53019
(October 11, 1995). The Commission eliminated FPC Form 14 because
importers/exporters currently file quarterly reports with DOE/FE
including the same volume and price information.
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IV. Regulatory Flexibility Act Certification
The Regulatory Flexibility Act (RFA) requires agencies to prepare
certain statements, descriptions, and analyses of proposed rules that
will have a significant economic impact on a substantial number of
small entities.35 The Commission is not required to make such
analyses if a rule would not have such an effect.
---------------------------------------------------------------------------
\35\ 5 U.S.C. 601-612.
---------------------------------------------------------------------------
The Commission does not believe that this rule would have such an
impact on small entities. Most filing companies regulated by the
Commission do not fall within the RFA's definition of small
entity.36 Further, the filing requirements of small entities are
reduced by the rule. Therefore, the Commission certifies that this rule
will not have a significant economic impact on a substantial number of
small entities.
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\36\ 5 U.S.C. 601(3), citing to section 3 of the Small Business
Act, 15 U.S.C. 632. 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.
---------------------------------------------------------------------------
V. Environmental Statement
------------------------
\36\ 5 U.S.C. 601(3), citing to section 3 of the Small Business
Act, 15 U.S.C. 632. 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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V. Environmental Statement
The Commission excludes certain actions not having a significant
effect on the human environment from the requirement to prepare an
environmental assessment or an environmental impact statement.37
No environmental consideration is raised by the promulgation of a rule
that is procedural or that does not substantially change the effect of
legislation or regulations being amended.38 The instant rule
updates the part 153 regulations and does not substantially change the
effect of the underlying legislation or the regulations being revised
or eliminated. Accordingly, no environmental consideration is
necessary.
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\37\ 18 CFR 380.4.
\38\ 18 CFR 380.4(a)(2)(ii).
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VI. Public Comment Procedures
The Commission invites all interested persons to submit written
comments on this NOPR.
An original and 14 copies must be filed with the Commission no
later than April 11, 1997. Comments must refer to Docket No. RM97-1-000
and be submitted to the Office of the Secretary, Federal Energy
Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
Additionally, comments should be submitted on computer diskette in
WordPerfect 5.1/5.2 format (Dos or Windows version) or in ASCII format,
with the name of the filer, Docket No. RM97-1-000, and the format used
(WP or ASCII) on the outside of the diskette
97-1-000
and be submitted to the Office of the Secretary, Federal Energy
Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
Additionally, comments should be submitted on computer diskette in
WordPerfect 5.1/5.2 format (Dos or Windows version) or in ASCII format,
with the name of the filer, Docket No. RM97-1-000, and the format used
(WP or ASCII) on the outside of the diskette.
All written submissions will be placed in the Commission's public
file and will be available for public inspection, during regular
business hours, at the Commission's Public Reference Room at 888 First
Street, NE, Washington, DC 20426.
List of Subjects in 18 CFR Part 153
Exports, Imports, Natural gas, Reporting and recordkeeping
requirements.
By direction of the Commission.
Lois D. Cashell,
Secretary.
For the reasons set out in the preamble, the Commission proposes to
revise 18 CFR part 153 to read as follows.
PART 153--APPLICATIONS FOR AUTHORIZATION TO CONSTRUCT, OPERATE, OR
MODIFY FACILITIES USED FOR THE EXPORT OR IMPORT OF NATURAL GAS
Subpart A--General Provisions
Sec.
153.1 Purpose and scope.
153.2 Definitions.
Subpart B--Application Under Section 3
153.5 Who shall apply.
153.6 Time of filing.
153.7 Contents of application.
153.8 Required exhibits.
153.9 Transferability.
153.10 Authorization not exclusive.
Subpart C--Application for a Presidential Permit
153.15 Who shall apply.
153.16 Contents of application.
153.17 Effectiveness of Presidential Permit.
Subpart D--Paper Media and Other Requirements
153.20 General rule.
153.21 Conformity with requirements.
153.22 Amendments and withdrawals.
153.23 Reporting Requirements.
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).
Subpart A--General Provisions
Sec. 153.1 Purpose and scope.
equirements
153.20 General rule.
153.21 Conformity with requirements.
153.22 Amendments and withdrawals.
153.23 Reporting Requirements.
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).
Subpart A--General Provisions
Sec. 153.1 Purpose and scope.
The purpose of this part is to implement the Commission's delegated
authorities under section 3 of the Natural Gas Act and Executive Order
10485, as amended by Executive Order 12038. Subpart B of this part
establishes filing requirements an applicant must follow to obtain
authorization under section 3 of the NGA for the siting, construction,
operation, place of entry for imports or place of exit for exports.
Subpart C of this part establishes filing requirements an applicant
must follow to apply for a Presidential Permit, or an amendment to an
existing Presidential Permit, for border facilities at the
international boundary between the United States and Canada or Mexico.
Sec. 153.2 Definitions.
(a) DOE/FE means the Department of Energy/Office of Fossil Energy
or its successor office.
(b) NBSIR means the National Bureau of Standards Information
Report.
(c) Person means an individual or entity as defined in 10 CFR
590.102(m).
Subpart B--Application Under Section 3
Sec. 153.5 Who shall apply.
(a) Applicant. Any person proposing to site, construct, operate, or
modify facilities which are to be used for the export of natural gas
from the United States to a foreign country or for the import of
natural gas from a foreign country or to amend an existing
authorization shall file with the Commission an application for
authorization therefor under subpart B of this part and section 3 of
the Natural Gas Act.
erson proposing to site, construct, operate, or
modify facilities which are to be used for the export of natural gas
from the United States to a foreign country or for the import of
natural gas from a foreign country or to amend an existing
authorization shall file with the Commission an application for
authorization therefor under subpart B of this part and section 3 of
the Natural Gas Act.
(b) Cross-reference. Any person applying under paragraph (a) of
this section to construct facilities at the borders of the United
States and Canada or Mexico must also simultaneously apply for a
Presidential Permit under subpart C of this part.
Sec. 153.6 Time of filing.
An application filed pursuant to Sec. 153.5(a) shall be made
simultaneous with or after the filing of any related applications with
DOE/FE for exporting or importing natural gas, except where otherwise
ordered by the Commission for good cause shown.
Sec. 153.7 Contents of application.
Every application under subpart B of this part shall include, in
the order indicated, the following:
(a) Information regarding applicant. (1) The exact legal name of
applicant;
(2) The name, title, and post office address, telephone and
facsimile numbers of the person to whom correspondence in regard to the
application shall be addressed;
(3) If a corporation, the state or territory under the laws of
which the applicant was organized, and the town or city where
applicant's principal office is located. If applicant is incorporated
under the laws of, or authorized to operate in, more than one state,
all pertinent facts should be stated. If applicant company is owned
wholly or in part by any government entity, or directly or indirectly
subsidized by any government entity; or, if applicant company has any
agreement for such ownership or subsidization from any government,
provide full details of ownership and/or subsidies.
under the laws of, or authorized to operate in, more than one state,
all pertinent facts should be stated. If applicant company is owned
wholly or in part by any government entity, or directly or indirectly
subsidized by any government entity; or, if applicant company has any
agreement for such ownership or subsidization from any government,
provide full details of ownership and/or subsidies.
(b) Summary. A detailed summary of the proposal, including
descriptions of the facilities utilized in the proposed export or
import of natural gas; state, foreign, or other Federal governmental
licenses or permits for the construction, operation, or modification of
facilities in the United States, Canada, or Mexico; and the status of
any state, foreign, or other Federal regulatory proceedings which are
related to the proposal.
(c) Statements. (1) A statement demonstrating that the proposal or
proposed construction is not inconsistent with the public interest,
including, where applicable, a demonstration that the proposal:
(i) Will access new foreign supplies of natural gas and serve new
market demand, enhance the reliability and flexibility of the
applicant's pipeline system, the dependability of international energy
trade, and will not impair transportation service to existing
customers;
(ii) Will not impair the ability of the applicant to render
transportation service at reasonable rates to customers in the United
States; and,
(iii) will not involve any existing contract(s) between the
applicant and a foreign government or person concerning the control of
operations or rates for the delivery or receipt of natural gas which
may restrict or prevent other United States companies from extending
their activities in the same general area, with copies of such
contracts.
able rates to customers in the United
States; and,
(iii) will not involve any existing contract(s) between the
applicant and a foreign government or person concerning the control of
operations or rates for the delivery or receipt of natural gas which
may restrict or prevent other United States companies from extending
their activities in the same general area, with copies of such
contracts.
(2) A representation that the proposal will be used to render
transportation services under part 284 of this chapter, private
transportation, or service that is exempt from the provisions of the
Natural Gas Act pursuant to sections 1(b) or 1(c) thereof.
Sec. 153.8 Required exhibits.
(a) An application must include the following exhibits:
(1) Exh. A. A certified copy of articles of incorporation,
partnership or joint venture agreements, and by-laws of applicant; the
amount and classes of capital stock; nationality of officers,
directors, and stockholders, and the amount and class of stock held by
each;
(2) Exh. B. A detailed statement of the financial and corporate
relationship existing between applicant and any other person or
corporation;
(3) Exh. C. A statement, including signed opinion of counsel,
showing that the construction, operation, or modification of facilities
for the export or the import of natural gas is within the authorized
powers of applicant, that applicant has complied with laws and
regulations of the state or states in which applicant operates;
(4) Exh. D. If the proposal is for a pipeline interconnection to
import or export natural gas, a copy of any construction and operation
agreement between the applicant and the operator(s) of border
facilities in the United States and Canada or Mexico;
the authorized
powers of applicant, that applicant has complied with laws and
regulations of the state or states in which applicant operates;
(4) Exh. D. If the proposal is for a pipeline interconnection to
import or export natural gas, a copy of any construction and operation
agreement between the applicant and the operator(s) of border
facilities in the United States and Canada or Mexico;
(5) Exh. E. If the proposal is to import or export LNG, evidence
that an appropriate and qualified concern will properly and safely
receive or deliver such LNG, including a report containing detailed
engineering and design information. The Commission staff's ``Guidance
Manual for Environmental Report Preparation'' may be obtained from the
Commission's Office of Pipeline Regulation, 888 First Street, NE,
Washington, DC 20426;
(6) Exh. E-1. If the LNG import/export facility is to be located at
a site in zones 2, 3, or 4 of the Uniform Building Code's Seismic Risk
Map of the United States, or where there is a risk of surface faulting
or ground liquefaction, a report on earthquake hazards and engineering.
Guidelines are contained in ``Data Requirements for the Seismic Review
of LNG Facilities,'' NBSIR 84-2833. This document may be obtained from
the National Technical Information Service or the Commission's Office
of Pipeline Regulation, 888 First Street, NE, Washington, DC 20426;
(7) Exh. F. An environmental report as specified in Sec. 380.3 of
this chapter. Refer to Commission staff's ``Guidance Manual for
Environmental Report Preparation;'' and
(8) Exh. G. A geographical map of a suitable scale and detail
showing the physical location of the facilities to be utilized for the
applicant's proposed export or import operations The map should
indicate with particularity the ownership of such facilities at or on
each side of the border between the United States and Canada or Mexico,
if applicable.
Environmental Report Preparation;'' and
(8) Exh. G. A geographical map of a suitable scale and detail
showing the physical location of the facilities to be utilized for the
applicant's proposed export or import operations The map should
indicate with particularity the ownership of such facilities at or on
each side of the border between the United States and Canada or Mexico,
if applicable.
(b) The applicant may incorporate by reference any exhibit required
by paragraph (a) of this section already on file with the Commission.
Sec. 153.9 Transferability.
(a) Non-transferable. Authorizations under subpart B of this part
and section 3 of the Natural Gas Act shall not be transferable or
assignable. A Commission order granting such authorization shall
continue in effect temporarily for a reasonable time in the event of
the involuntary transfer of facilities used thereunder by operation of
law (including such transfers to receivers, trustees, or purchasers
under foreclosure or judicial sale) pending the making of an
application for permanent authorization and decision thereon, provided
notice is promptly given in writing to the Commission accompanied by a
statement that the physical facts relating to operations of the
facilities remains substantially the same as before the transfer and as
stated in the initial application for such authorization.
(b) Supplemental orders. The Commission also may make, at any time
subsequent to the original order of authorization, after opportunity
for hearing, such supplemental orders concerning the operation of the
facilities as it may find necessary or appropriate.
Sec. 153.10 Authorization not exclusive.
No authorization granted pursuant to subpart B of this part and
section 3 of the Natural Gas Act shall be deemed to prevent the
Commission from granting authorization under subpart B to any other
person at the same general location, or to prevent any other person
from making application for such authorization.
as it may find necessary or appropriate.
Sec. 153.10 Authorization not exclusive.
No authorization granted pursuant to subpart B of this part and
section 3 of the Natural Gas Act shall be deemed to prevent the
Commission from granting authorization under subpart B to any other
person at the same general location, or to prevent any other person
from making application for such authorization.
Subpart C--Application for a Presidential Permit.
Sec. 153.15 Who shall apply.
(a) Applicant. Any person proposing to construct, operate,
maintain, or connect facilities or to change the operation or
maintenance of facilities at the borders of the United States and
Canada or Mexico, for the export or import of natural gas to or from
those countries, or to amend an existing Presidential Permit, shall
file with the Commission an application for a Presidential Permit under
subpart C of this part and Executive Order 10485, as amended by
Executive Order 12038.
(b) Cross-reference. Any person applying under paragraph (a) of
this section for a Presidential Permit for the construction and
operation of border facilities must also simultaneously apply for
authorization under subpart B of this part.
Sec. 153.16 Contents of application.
(a) Cross-reference. The submission of information under
Secs. 153.7 and 153.8 of subpart B of this part shall be deemed
sufficient for purposes of applying for a Presidential Permit or an
amendment to an existing Presidential Permit under subpart C of this
part for the construction and operation of border facilities.
zation under subpart B of this part.
Sec. 153.16 Contents of application.
(a) Cross-reference. The submission of information under
Secs. 153.7 and 153.8 of subpart B of this part shall be deemed
sufficient for purposes of applying for a Presidential Permit or an
amendment to an existing Presidential Permit under subpart C of this
part for the construction and operation of border facilities.
(b) Amendment Not Proposing Construction. An applicant proposing to
amend the article(s) of an existing Presidential Permit (other than
facilities aspects) must file information pursuant to Sec. 153.7(a) and
a summary and justification of its proposal.
Sec. 153.17 Effectiveness of Presidential Permit.
A Presidential Permit, once issued by the Commission, shall not be
effective until it has been accepted by the highest authority of the
Permittee, as indicated by Permittee's execution of a Testimony of
Acceptance, and a certified copy of the accepted Presidential Permit
and the executed Testimony of Acceptance has been filed with the
Commission.
Subpart D--Paper Media and Other Requirements
Sec. 153.20 General rule.
(a) Number of Copies. Applications under subpart B of this part
must be submitted to the Commission in an original and 7 conformed
paper copies. Applications under subpart C of this part must be
submitted to the Commission in an original and 9 conformed paper
copies.
(b) Certification. All applications must be signed in compliance
with Sec. 385.2005 of this chapter.
(1) The signature on an application constitutes a certification
that: the signer has read the filing signed and knows the contents of
the paper copies; and, the signer possesses the full power and
authority to sign the filing.
(2) An application must be signed by one of the following:
opies.
(b) Certification. All applications must be signed in compliance
with Sec. 385.2005 of this chapter.
(1) The signature on an application constitutes a certification
that: the signer has read the filing signed and knows the contents of
the paper copies; and, the signer possesses the full power and
authority to sign the filing.
(2) An application must be signed by one of the following:
(i) The person on behalf of whom the application is made;
(ii) An officer, agent, or employee of the governmental authority,
agency, or instrumentality on behalf of which the filing is made; or,
(iii) A representative qualified to practice before the Commission
under Sec. 385.2101 of this chapter who possesses authority to sign.
(c) Where to file. The paper copies and an accompanying transmittal
letter must be submitted in one package to: Office of the Secretary,
Federal Energy Regulatory Commission, Washington, DC 20426.
Sec. 153.21 Conformity with requirements.
(a) General rule. Applications under subparts B and C must conform
with the requirements of this part.
(b) Rejection of applications. If an application does not conform
to the requirements of this part, the Director of the Office of
Pipeline Regulation will notify the applicant of all deficiencies.
Deficient applications not amended within 20 days of the notice of
deficiency, or such longer period as may be specified in the notice of
deficiency, will be rejected by the Director of the Office of Pipeline
Regulation as provided by Sec. 385.2001(b) of this chapter. Copies of a
rejected application will be returned. An application which relates to
an operation, service, or construction concerning which a prior
application has been filed and rejected, shall be docketed as a new
application. Such new application shall state the docket number of the
prior rejected application.
Sec. 153.22 Amendments and withdrawals.
Amendments to or withdrawals of applications must conform to the
requirements of Secs. 385.215 and 385.216 of this chapter.
n operation, service, or construction concerning which a prior
application has been filed and rejected, shall be docketed as a new
application. Such new application shall state the docket number of the
prior rejected application.
Sec. 153.22 Amendments and withdrawals.
Amendments to or withdrawals of applications must conform to the
requirements of Secs. 385.215 and 385.216 of this chapter.
Sec. 153.23 Reporting requirements.
Each person authorized under part 153 that is not otherwise
required to file information concerning the start of construction or
modification of import/export facilities, the completion of
construction or modification, and the commencement of service must file
such information with the Commission within 10 days after such event.
Each such person must also report by March 1 of each year the estimated
peak day capacity and actual peak day usage of its import/export
facilities.
[FR Doc. 97-3199 Filed 2-7-97; 8:45 am]
BILLING CODE 6717-01-P
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