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26 October 2006


[Federal Register: October 27, 2006 (Volume 71, Number 208)]

[Rules and Regulations]               

[Page 62912-62921]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr27oc06-14]                         



=======================================================================

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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 Commission, DOE.



ACTION: Final rule.



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SUMMARY: Section 313 of the Energy Policy Act of 2005 (EPAct 2005) \1\ 

amends section 15 of the Natural Gas Act (NGA) \2\ to provide the 

Federal Energy Regulatory Commission (Commission) with additional 

authority to coordinate the processing of authorizations required under 

Federal law for proposed natural gas projects subject to NGA sections 3 

and 7 and 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.

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    \1\ Pub. L. 109-58, 119 Stat. 594 (2005).

    \2\ 15 U.S.C. 717n (2005).



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:

Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. 

Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff



    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 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.

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    \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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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\



[[Page 62913]]



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.

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    \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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    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.

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    \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 Sec.  375.308, Delegations to the Director 

of the Office of Energy Projects (OEP), to add a new Sec.  

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.

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    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.



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, 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).

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    \8\ 71 FR 30632 (May 30, 2006).

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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 Sec. Sec.  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 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.

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    \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.

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    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, Sec. Sec.  153.8 and



[[Page 62914]]



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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    \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 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.

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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 Sec.  157.9 

of its regulations,\11\ or rejects the application in accordance with 

Sec.  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 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.

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    \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.

---------------------------------------------------------------------------



    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.

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    \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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    14. Under this approach, there is no longer any distinction--as was 

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.

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    \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.

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    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\

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    \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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    16. Commenters expressed the concern that the Commission could 

reach a decision on a schedule for agency action without first 

considering



[[Page 62915]]



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\

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    \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.

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    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 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.

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    \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.

    \19\ EPAct 2005 section 313(c)(1)(A) (2005).

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    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\



    \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).

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    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 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.

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    \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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    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\

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    \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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Informing the Commission Upon Receipt of an Authorization Request



    21. New Sec.  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



[[Page 62916]]



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\

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    \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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    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 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.

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    \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.

---------------------------------------------------------------------------



    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 Sec.  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 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 Sec.  

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 

re-noticing 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.

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    \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.

---------------------------------------------------------------------------



    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 

Sec.  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.



[[Page 62917]]



    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 Sec.  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.

---------------------------------------------------------------------------



    \28\ EPAct 2005 section 313(a)(3) (2005).

---------------------------------------------------------------------------



    31. When a request to authorize a proposed project under the 

blanket certificate provisions is protested, and the protest is not 

either dismissed or 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 

case-specific 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.

---------------------------------------------------------------------------



    \29\ 18 CFR 157.205(f) (2006).

    \30\ See, e.g., Texas Eastern Transmission Corp., 76 FERC ] 

61,178 (1996).

---------------------------------------------------------------------------



    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 Sec. Sec.  153.8 and 157.14 filing 

requirements for project sponsors, or the Sec.  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 schedule applicable to an ongoing proceeding.

---------------------------------------------------------------------------



    \31\ See note 7.

---------------------------------------------------------------------------



    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



[[Page 62918]]



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.

---------------------------------------------------------------------------



    \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.

---------------------------------------------------------------------------



    40. The Commission finds no cause to adopt the Conservation Law 

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.

    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\

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    \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.

---------------------------------------------------------------------------



    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



[[Page 62919]]



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.

---------------------------------------------------------------------------



    \34\ 5 CFR 1320.11 (2006).

    \35\ 44 U.S.C. 3507(d) (2005).

---------------------------------------------------------------------------



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       Number of       Hours per

                 Data collection                    respondents      responses       response       Total hours

----------------------------------------------------------------------------------------------------------------

FERC-537........................................              76             815             0.5             408

FERC-539........................................              12              12             0.5               6

FERC-606........................................              48            1702             4.4           7,489

FERC-607........................................              48            1654             6.3          10,423

                                                 ---------------------------------------------------------------

    Totals......................................  ..............  ..............  ..............          18,326

----------------------------------------------------------------------------------------------------------------



    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.

    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.



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.

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    \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).

    \37\ 18 CFR 380.4(a)(2)(ii) (2006).

---------------------------------------------------------------------------



Regulatory Flexibility Act Certification



    50. The Regulatory Flexibility Act of 1980 (RFA) \38\ generally 

requires a



[[Page 62920]]



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.

---------------------------------------------------------------------------



    \38\ 5 U.S.C. 601-612 (2005).

---------------------------------------------------------------------------



    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.

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    \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).

---------------------------------------------------------------------------



    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 impact on a substantial number of small entities.

---------------------------------------------------------------------------



    \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.

---------------------------------------------------------------------------



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\

---------------------------------------------------------------------------



    \43\ 5 U.S.C. 804(2) (2005).

---------------------------------------------------------------------------



List of Subjects



18 CFR Part 153



    Exports, Imports, Natural gas, Reporting and recordkeeping 

requirements.



18 CFR Part 157



    Administrative practice and procedure, Natural gas, Reporting and 

recordkeeping requirements.



18 CFR Part 375



    Authority delegations (Government agencies), Seals and insignia, 

Sunshine Act.



18 CFR Part 385



    Administrative practice and procedure, Electric power, Penalties, 

Pipelines, Reporting and recordkeeping requirements.



    By the Commission.

Magalie R. Salas,

Secretary.



0

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



0

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).





0

2. In subpart B, Sec.  153.4 is added to read as follows:





Sec.  153.4  General requirements.



    The procedures in Sec. Sec.  157.5, 157.6, 157.8, 157.9, 157.10, 

157.11, and 157.12 of this chapter are applicable to the applications 

described in this subpart.



0

3. In Sec.  153.8:

0

a. The word ``and'' is removed from the end of paragraph (a)(7);

0

b. The period is removed from the end of paragraph (a)(8), and ``; 

and'' is added in its place; and

0

c. Paragraph (a)(9) is added to read as follows:





Sec.  153.8  Required exhibits.



    (a) * * *

    (9) Exhibit H. A statement identifying each Federal authorization 

that the proposal will require; the Federal 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



0

4. The authority citation for part 157 continues to read as follows:



    Authority: 15 U.S.C. 717-717w.





0

5. In Sec.  157.9:

0

a. The section heading is revised;



[[Page 62921]]



0

b. The existing text is designated as paragraph (a) and the word 

``business'' is added immediately before the phrase ``days of filing''; 

and

0

c. A new paragraph (b) is added, to read as follows:





Sec.  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.

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6. In Sec.  157.14, paragraph (a)(12) is added to read as follows:





Sec.  157.14  Exhibits.



    (a) * * *

    (12) Exhibit J--Federal authorizations. A statement identifying 

each Federal authorization that the proposal will require; the Federal 

agency or officer, or State agency or officer acting pursuant to 

delegated Federal authority, 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.

* * * * *



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7. In subpart A, Sec.  157.22 is added to read as follows:





Sec.  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



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8. The authority citation for part 375 continues to read as follows:



    Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 

U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352.





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9. In Sec.  375.308, paragraph (bb) is added to read as follows:





Sec.  375.308  Delegations to the Director of the Office of Energy 

Projects.



* * * * *

    (bb) Establish a schedule 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



0

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).





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11. Section 385.2013 is redesignated as Sec.  385.2015 and the heading 

of newly designated Sec.  385.2015 is revised to read as follows:





Sec.  385.2015  Videotapes (Rule 2015).



* * * * *



0

12. New Sec. Sec.  385.2013 and 385.2014 are added to read as follows:





Sec.  385.2013  Notification of requests for Federal authorizations and 

requests for further information (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 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.





Sec.  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