[Federal Register Volume 64, Number 183 (Wednesday, September 22, 1999)]
[Rules and Regulations]
[Pages 51209-51222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24615]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 153, 157 and 375
[Docket No. RM98-16-000; Order No. 608]
Collaborative Procedures for Energy Facility Applications
Issued September 15, 1999.
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Final rule.
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SUMMARY: The Federal Energy Regulatory Commission, (Commission) is
issuing a final rule to expand its procedural regulations governing the
authorization of natural gas facilities and services. The regulations
offer prospective applicants seeking to construct, operate or abandon
natural gas facilities or services the option, in appropriate
circumstances and prior to filing an application, of designing a
collaborative process that includes environmental analysis and issue
resolution. This pre-filing collaborative process is comparable to the
process the Commission adopted two years ago with respect to
applications for hydroelectric licenses, amendments and exemptions and,
like those regulations, is optional and is designed to be adaptable to
the facts and circumstances of the particular case. The regulations do
not delete or replace any existing regulations.
EFFECTIVE DATE: This rule is effective October 22, 1999.
FOR FURTHER INFORMATION CONTACT:
Richard Hoffman, Office of Pipeline Regulation, 888 First Street, NE,
Washington, DC 20426, (202) 208-0066
Gordon Wagner, Office of the General Counsel, 888 First Street, NE,
Washington, DC 20426, (202) 219-0122.
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
at 888 First Street, NE, Room 2A, Washington, DC 20426.
The Commission Issuance Posting System (CIPS) provides access to
the texts of formal documents issued by the Commission from November
14, 1994, to the present. CIPS can be accessed via Internet through
FERC's Home page (http://www.ferc.fed.us) using the CIPS Link or the
Energy Information Online icon, or by going directly to the following
address: http//cips.ferc.fed.us/cips/default.htm. Documents will be
available on CIPS in ASCII and WordPerfect 8.0. User assistance is
available at 202-208-2474 or by E-mail to cipsmaster@ferc.fed.us.
This document is also available through the Commission's Records
and Information Management System (RIMS), an electronic storage and
retrieval system of documents submitted to and issued by the Commission
after November 16, 1981. Documents from November 1995 to the present
can be viewed and printed. RIMS is available in the Public Reference
Room or remotely via Internet through FERC's Home Page using the RIMS
link or the Energy Information Online icon, or by going directly to the
following address: http://rimsweb1.ferc.fed.us/rims. User assistance is
available at 202-208-2222, or by E-mail to rimsmaster@ferc.fed.us.
Finally, the complete text on diskette in WordPerfect format may be
purchased from the Commission's copy contractor, RVJ International,
Inc. RVJ International, Inc. is located in the Public Reference Room at
888 First Street, NE, Washington, DC 20426.
I. Introduction
The Federal Energy Regulatory Commission (Commission) is expanding
its procedural regulations governing the authorization of natural gas
facilities and services to offer prospective applicants seeking to
construct, operate or abandon natural gas facilities or services the
option, in appropriate circumstances and prior to filing an
application, of using a collaborative process to identify and resolve
significant issues. In addition, a
[[Page 51210]]
significant portion of the environmental review process can be
completed as part of the pre-filing collaborative process. This process
is comparable to the process the Commission adopted two years ago with
respect to preparing applications for hydroelectric licenses,
amendments and exemptions and, like those regulations, is optional and
voluntary and is designed to be flexible and adaptable to the facts and
circumstances of the particular case.
A prospective gas facility applicant may continue to use the
standard authorization procedures (which do not require any pre-filing
consultation process). After a pre-filing collaboration has begun, an
applicant may switch to the standard procedures and file its
application if it believes that the pre-filing collaborative process is
not productive. The regulations do not delete or replace any existing
regulations.
II. Background
On September 30, 1998, the Commission issued a Notice of Proposed
Rulemaking (NOPR) 1 to expand its procedural regulations
governing the authorization of natural gas facilities and services, and
to consider certain revisions in its procedural regulations governing
applications for licenses, amendments and exemptions for hydroelectric
projects. In response to the comments received 2 and
discussions by staff with potential participants in technical
workshops,3 the Commission is adopting a final rule that
offers an optional, pre-filing collaborative process to gas facility
applicants and is not modifying any of the existing regulations for
hydropower applicants.
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\1\ FERC Stats. & Regs. (Proposed Regulations 1988-1998) para.
32,536 (Sept. 30, 1998), 63 FR 59916 (Nov. 6, 1998).
\2\ The commenters (and abbreviations to identify them) are
listed in Appendix A.
\3\ Staff conducted technical workshops on the NOPR in
Washington, D.C., Houston, Texas, and Chicago, Illinois, on November
5, 10 and 18, 1999, respectively.
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Regardless of the process path the applicant selects, once the
application is filed the Commission will review it for adequacy,
publish a notice of it in the Federal Register, and invite comments and
interventions. The Commission will then either complete or begin the
NEPA process depending on the procedures that were employed in the pre-
filing stage. In a standard process, the NEPA process will begin only
after the filing of the application. In the pre-filing collaborative
process promulgated herein, the NEPA process can begin prior to the
filing of the application, and the Commission will complete the NEPA
process after the application is filed.
III. Discussion
A. Should the Pre-filing Collaborative Process be Authorized for Gas
Applicants?
In the NOPR, the Commission proposed a new Sec. 157.22 of the
regulations to allow potential applicants for gas facilities under
sections 3 and 7 of the Natural Gas Act (NGA) 4 to choose a
pre-filing collaborative process in preparing an application for filing
with the Commission. As proposed, and as adopted herein, the potential
applicant can obtain the assistance of Commission staff in preparing
its application and begin the NEPA process in the pre-filing stage.
Before undertaking a collaboration, the applicant must show that it has
contacted entities interested in its proposal, a consensus exists to
support the collaborative process, and a communications protocol among
the entities has been negotiated. A successful collaborative process
might conclude with the filing of a complete application with the
Commission that includes a preliminary draft NEPA document (a
preliminary draft EA or EIS). Depending upon the willingness of the
participants, including the applicant and resource agencies, the
process could also result in the filing of an agreement or an offer of
settlement with the Commission that addresses issues raised by the
application, and to the extent possible resolves within the pre-filing
collaborative process related legal processes mandated by other
agencies.
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\4\ 15 U.S.C. 717b and 717f(c).
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Many commenters representing pipelines supported adoption of the
proposed pre-filing collaborative process for the gas industry as long
as the final rule incorporates certain provisions to maximize its
chances for success. In particular, these commenters believe that use
of the collaborative process should be optional and voluntary for the
applicant, the process should be limited to environmental issues, and
the applicant should be able to terminate the process and file its
application at any time.5 One commenter took the same
approach but wanted assurances that the collaborative process would not
have as objectives the narrowing of areas of disagreement and the
promotion of settlements, on the grounds that such efforts would
distract from the NEPA process and lead to unnecessary delays. Another
commenter was concerned that adoption of the proposed rule would have
an adverse effect on existing and proposed practices aimed at
streamlining the processing of gas applications by the Commission and
would encumber pipelines in red tape, including restrictions and
reporting requirements.6
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\5\ E.g., INGAA at 1-2, Williams at 2-3, Williston at 2-3.
\6\ Enron at 2-4.
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Another commenter requested that the Commission clarify in the
final rule that the process will not abridge the legal rights of any
party to the subsequent Commission proceeding, and in particular, that
all parties retain the right to protest all issues, including those
addressed in the pre-filing process.7 One gas industry
commenter was opposed to the proposed rule, suggesting that it would
not help to certificate needed pipeline construction under the NGA and
is subject to a number of legal infirmities.8
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\7\ AGA at 2-8.
\8\ Indicated Shippers at 2-3 and 7-15.
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State agencies expressed support for extending the opportunity to
engage in a pre-filing collaborative process to potential applicants
for gas facilities, citing their favorable experience with such
procedures used by potential applicants for hydropower
facilities.9 Federal resource agencies that filed comments
were generally supportive of pre-filing consultation processes, stating
that such efforts have been helpful in addressing resource issues
presented by hydropower applications.10
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\9\ See, e.g., Wisconsin DNR at 1-2. State agencies also made
recommendations for improvements in the proposed rule, which are
discussed in the following sections.
\10\ E.g., Commerce at 14, Interior at 1-2, EPA at 1, and Forest
Service at 1,3.
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Environmental groups favor the proposed rule. One commenter asked
the Commission to explain in more detail how it would work for the gas
industry and what its benefits would be.11 Landowners'
comments generally favored improving Commission procedures in order to
give landowners additional notice of pipeline proposals and the
opportunity to express their views about them.12
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\11\ Trout Unlimited at 5-6.
\12\ Ferguson & Tavares at 1-2, Smith at 4-5, and Southern
Landowners at 2-3.
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We believe that the final rule adopted herein addresses and
responds to the main concerns expressed by the gas industry and others
in this rulemaking. As recommended by the commenters and discussed in
the following sections, in the final rule we adopt a pre-filing
collaborative process for potential applicants for gas facilities that
is strictly voluntary, and the applicant may terminate the process at
any time. We are neither prohibiting the
[[Page 51211]]
discussion of non-environmental issues in the process, nor requiring
that such issues be addressed. It will be up to the applicants and the
other participants in the process to decide which issues will be
covered in each collaboration. We emphasize the flexibility of the pre-
filing process and are open to working cooperatively with potential
applicants and participants to design pre-filing processes that are
helpful to all concerned and lay the foundation for expeditious
proceedings on gas applications and full compliance with the NGA, NEPA
and other applicable statutes.
We hope that the positive and open dialogue established by a pre-
filing collaborative process may help other state and federal agencies
to coordinate the exercise of their regulatory mandates with the
Commission's and will foster the resolution of disputed issues and the
submission of offers of settlement. But a successful pre-filing
collaborative process does not require such results. We stress that
adoption of the new, optional pre-filing process will neither prejudice
the processing of any applications that are prepared by standard means
(i.e., absent pre-filing consultation), nor will use of the process
curtail the legal rights of any party to intervene and participate
fully in the Commission's post-filing proceedings. If a pre-filing
process produces an agreement between the applicant and some or all of
the participants, the applicant and participants may elect to treat the
agreement as an offer of settlement and submit it in conjunction with
an application. The offer of settlement will be treated like any other
such offer, and be evaluated under the same legal standards that the
Commission customarily applies.13
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\13\ See 18 CFR 385.602 of the Commission's rules of practice
and procedure.
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While we recognize that nothing in the NGA or the Natural Gas
Policy Act (NGPA) 14 specifically authorizes the adoption of
pre-filing collaborative procedures for gas applicants, we perceive no
prohibition of such procedures in either act. We also believe that
affording this procedural option furthers a number of important legal
and policy objectives dedicated to streamlining and coordinating the
regulatory process and makes it more flexible and responsive to
citizens' concerns, including those expressed by business, consumer,
and environmental interests.15
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\14\ 15 U.S.C. 3301-3432.
\15\ See 40 U.S.C. 101.
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Many commenters mentioned that they thought that the time required
to complete a pre-filing collaborative process would not shorten the
time from initial proposal to Commission action and questioned why an
applicant for gas facilities or services would undertake the process.
In the technical workshops, the Commission's staff specifically asked
about the time frames used by applicants to prepare gas applications.
Since only one commenter filed a response to the staff's
question,16 the Commission is not in a position to determine
whether the overall application preparation time of an applicant using
a pre-filing collaborative process would be less, the same or longer
than the preparation time of an applicant using the standard process
(which does not require as much pre-filing consultation).17
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\16\ El Paso at 8-9.
\17\ INGAA is concerned that the new collaborative process could
curtail existing pre-filing procedural rights. We clarify that
nothing in the new regulations will displace or replace present pre-
filing options. The new regulations provide prospective applicants
an additional means to engage in discussion with interested persons
prior to filing.
Trout Unlimited observes that not all proposed gas projects make
promising candidates for a collaboration and thus requests that the
Commission consider other forms of early public involvement. We note
the existing procedural rights alluded to above constitute one such
alternative; another is contemplated in the NOPR on Landowner
Notification, Residential Area Designation, and Environmental Filing
Requirements, 64 FR 27717 (May 21, 1999), IV FERC Stats. & Regs.
para. 32,540 (Apr. 28, 1999).
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B. Should the Collaborative Process be Mandatory?
Although the regulatory text in the NOPR proposed a pre-filing
collaborative process for gas applicants that would be voluntary, the
preamble to the NOPR asked whether the process should be made
mandatory, not only for gas but also for hydropower applicants. The
latter are currently using alternative pre-filing procedures that are
similar to the collaborative procedures proposed in the NOPR for gas
applicants; hydropower applicants may also use standard pre-filing
consultation procedures that do not require the formation of a
collaborative group.18 The Commission invited commenters to
describe the advantages and disadvantages of making the pre-filing
collaborative process mandatory for all applicants (gas and hydropower)
and to describe how the proposal might work, especially if there were
no consensus among the participants that such a process would be
useful. The Commission also asked whether applicants should at least be
required to make a good faith effort to undertake such a collaborative
process and what should be done if an applicant could not document that
it had made such an effort.
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\18\ 18 CFR 4.38 and 16.8.
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Almost without exception,19 commenters rejected the
suggestion of mandating pre-filing collaboration for applicants for
either gas or hydropower facilities. Commenters familiar with the
alternative pre-filing process for hydropower applicants who use
collaborative procedures stressed that the successful use of the
process requires a strong consensus to support it. They contended that
the Commission cannot mandate the cooperative attitude among the
participants and applicant that is necessary for a productive
collaboration; the willingness of participants and applicant to
voluntarily support the process is critical.20
Representatives of the hydropower industry also emphasized how helpful
it is, when planning for the licensing of a hydropower project, to have
current regulations that afford applicants a range of pre-filing
options from which they may choose the process best suited to the
preparation of their applications in each case.21 Gas
industry commenters agreed, favoring flexibility in preparing their
applications but stressing that timely approval of gas projects is
often crucial to their viability. Many were concerned that requiring
the use of pre-filing collaborative procedures in all cases might add
significantly to the time and expense needed to obtain authorization
for a proposal, which could preclude or end some time-sensitive project
proposals.22 Gas commenters further stated that the proposed
requirement that all applicants demonstrate at least a good faith
attempt to initiate a pre-filing collaborative process would place an
additional administrative burden on the applicant and would not serve
any useful purpose.23
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\19\ EDF at 2. EDF advocated requiring all applicants for
natural gas facilities and services to demonstrate that they have
made a good-faith effort to undertake a pre-filing collaboration.
\20\ NHA at 2-6; Northwest at 3-6; EEI at 9-12; CRITFC at 1-2;
HRC at 4-6; EPA; Commerce at 2; Interior at 7-8; NY DEC at 2.
\21\ SoCal Ed at 3-5; Sacramento at 2-3; California Water at 3-
6; PG&E at 9.
\22\ AGA at 6-7; ANR at 3; El Paso at 14-17; Great Lakes at 6;
Tejas at 5-6; Williams at 7; Williston at 4.
\23\ AGA at 4; PG&E at 14-15.
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Commenters favoring voluntary collaboration 24 noted
that gas certificates and abandonments cover a
[[Page 51212]]
broad range of different types of projects, and asserted that pre-
filing collaboration will be ineffective for at least some of these
projects. Commenters pointed out that prospective project sponsors are
in the best position to judge whether a collaborative process is likely
to be fruitful and should therefore have the flexibility either to
request a pre-filing collaboration or to file an application without
using such a process.
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\24\ Among those favoring a voluntary process are California
Water at 1; Great Lakes at 2-4; INGAA at 2; Nicor at 3-4; PG&E at 7-
9, 16; Industrials at 4-8; Sempra at 2; Williams at 6-7; Wisconsin
DNR at 1-2; and Williston at 3-4.
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In view of the comments, the Commission will not mandate that all
project applicants engage in a pre-filing collaboration or explain why
efforts to do so were unavailing. The final rule adopts regulations
similar to those proposed in the NOPR in order to offer applicants for
gas facilities or services the option of undertaking a pre-filing
collaboration. Those applicants may continue to use the standard
certification procedures (which, for gas applicants, do not require any
pre-filing consultation process). After a pre-filing collaboration has
begun, the applicant may switch to the standard procedures and file its
application if it believes that the pre-filing collaborative process is
not productive.
C. Should the Collaborative Process be Extended to Include a Draft EIS
or Draft FEIS?
In the preamble to the NOPR, the Commission asked whether it would
be appropriate to extend the pre-filing collaborative process beyond
the stage of preparing a preliminary draft NEPA document, as provided
under current regulations for hydropower applicants and proposed in the
NOPR for gas applicants. The Commission asked whether it would be
appropriate for Commission staff, in the pre-filing stage, to issue a
draft EIS and for participants in a pre-filing collaborative process to
review the comments on the draft EIS and prepare either a final EIS or
a preliminary draft of a final EIS. The Commission asked whether such a
process should be permitted prior to the filing of the application,
without first issuing a notice inviting interested persons to intervene
as parties to a formal proceeding.
While a few commenters thought that the Commission should consider
extending the NEPA process (prior to the filing of an application)
beyond the point allowed by current regulations for hydropower
applicants (i.e., the preparation of a preliminary draft EA or
EIS),25 most commenters thought that such a proposal was
ill-advised and may be illegal.26 Commenters stated that the
proposal would complicate the pre-filing collaborative process and
could undercut one of its central purposes, allowing the applicant to
craft a proposal in its application that would respond to the resource
concerns raised by the participants in the pre-filing process. An
attempt to carry NEPA further in the pre-filing stage may entangle the
pre-filing collaboration with the Commission's post-filing review and
decision-making process, which should not commence until after the
application is filed and a legal proceeding begins, with all its
attendant protections for parties.
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\25\ E.g., EEI at 12 and Northwest at 7.
\26\ E.g., California Water at 7-9, Interior at 5, Commerce at
3-4, PG&E at 10-11, and HRC at 3.
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We agree with the majority of commenters on this issue. The
rulemaking establishing the alternative pre-filing procedures for
hydropower applications carefully balanced the interests of
accelerating the NEPA process by beginning it, with staff's assistance,
in the pre-filing stage, against the interests of preserving the
Commission's responsibilities--under the Federal Power Act
(FPA),27 NEPA, and other applicable statutes--to conduct its
own independent review of the application after it has been filed. That
balance is best accomplished as the current hydropower regulations
provide, by ending the pre-filing process with the preparation of an
application and a preliminary draft EA or EIS. Only after the filing of
these documents in conjunction with an application will the Commission
complete the NEPA process by issuing a draft EA or EIS. Then, in light
of the comments received, and any additional analysis and review deemed
necessary, the Commission issues the final EA or EIS, followed by a
decision on the application.28 To try to carry the NEPA
process further in the pre-filing stage would upset this balance, raise
the risks outlined by the commenters, and call into question the
integrity of the Commission's review and decision-making processes.
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\27\ 16 U.S.C. 791a et seq.
\28\ Although not required by NEPA, the Commission in its
hydropower licensing program issues draft EA's for comment.
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D. Should there be Deadlines on the Collaborative Process?
The proposed rule required the submission of certain reports by the
applicant in the course of the pre-filing collaborative process,
allowed the participants in the process to set reasonable deadlines for
requests for scientific studies or alternative route analyses, and
provided that the Commission may set deadlines for preliminary resource
agency recommendations, conditions, and comments, to be submitted in
final form after the filing of the application with the
Commission.29
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\29\ Proposed 18 CFR 157.22(f)(2), (7) and (8).
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The Commission invited comment on whether any limitations of time
should be placed on the pre-filing collaborative process and, if so,
what time limits might be appropriate. Comment was sought on how best
to ensure that all participants in the process have a full and fair
opportunity to participate in a manner that facilitates cooperative
progress within a reasonable time frame.
Some commenters wanted the Commission to set deadlines for pre-
filing processes and participants in order to avoid delaying the filing
of certificate applications.30 One commenter suggested the
potential applicant propose time limits for a collaboration in its
initial request to employ the pre-filing process.31 Another
commenter argued that participants and Commission staff should follow
through to establish a post-filing schedule for submitting comments,
data, and documents.32
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\30\ Industrials at 8; SoCal Ed at 7-8; NY DEC at 4, citing
proposed 18 CFR 157.22(f)(8).
\31\ PG&E at 17.
\32\ Forest Service at 2.
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Other commenters observed that establishing deadlines can be
effective in moving hydropower alternative pre-filing processes along,
but concluded that given the relatively short period that this process
has been in effect for hydropower applicants, it would be premature for
the Commission to set time limits on the pre-filing
process.33
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\33\ California Water at 10.
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Many commenters wanted to avoid any Commission-imposed deadlines on
the pre-filing process, preferring that the collaborative participants
concur on deadlines.34 Concerns were expressed that any
fixed time limit applied across the board to the wide variety of
possible processes would be arbitrary and burdensome 35 and
that such constraints might pressure participants into making unwanted
concessions.36 One commenter observed that any imposition of
time limits in the pre-filing process must not conflict with the time
frames provided under the regulations of the affected
agencies.37
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\34\ Wisconsin DNR at 2; Interior at 6-7; Forest Service at 2;
Commerce at 2-3; and AGA at 8.
\35\ PG&E at 11, 17; Forest Service at 2; Interior at 7; AGA at
8.
\36\ Wisconsin DNR at 2.
\37\ Advisory Council at 2, citing 36 CFR part 800.
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In light of the commenters' concerns, we see no reason to establish
in the final rule any general deadlines for
[[Page 51213]]
completion of stages in the pre-filing collaborative process; this
issue is best left to the potential applicant and the participants in
each process to decide. A collaborative process must be flexible.
We do not anticipate that any deadlines agreed upon in the pre-
filing collaborative process, or any set by the Commission in the
proceeding on the filed application, would conflict with those set by
other agencies with related authorities. Should such a conflict arise,
we believe it can be resolved on a case-by-case basis.
It would not be appropriate to add specific provisions for the
Commission to confer with a collaborative group to establish deadlines
after an application is filed. Once an application has been filed,
existing Commission practices and regulatory deadlines come into effect
in the context of an administrative proceeding, and all deadlines will
be set in reference to established Commission regulations, practices
and procedures applicable to such proceedings. As appropriate, the
Commission will consult with parties in setting such deadlines.
E. Should the Collaborative Process be Limited to Environmental Issues?
The NOPR noted that there are sometimes contentious non-
environmental issues that may undermine successful collaboration in a
pre-filing consultation process and sought comment on whether the
process for gas applicants should address only the environmental issues
associated with the potential application. While the main focus of the
NOPR was to propose regulations that would allow for resolution of
environmental issues prior to the filing of applications, the NOPR
asked whether the collaborative process should be extended to non-
environmental issues such as the need for the project, a comparison
with competing projects, capacity allocation, rates, and the effects of
abandonments on existing customers.
Some commenters believed that both environmental and non-
environmental issues should be considered in the pre-filing process, at
least in its initial phases, with the participants ultimately deciding
the scope of issues to be addressed.38 The majority of the
commenters, however, stated that the pre-filing process should deal
exclusively with environmental issues.39
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\38\ Interior at 5; NY DEC at 2; Nicor at 5; NHA at 5.
\39\ INGAA at 5; Williston at 5; Great Lakes at 7; Sempra at 2;
Williams at 3; Industrials at 7; Duke at 11-12; AGA at 2.
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The competitive nature of many NGA applications was most frequently
cited as the reason why non-environmental issues should not be made
part of the pre-filing process. Some of the commenters expressed
concern that certain entities might try to use the pre-filing
collaborative process as a means to delay the preparation and filing of
applications of competitors, which would be contrary to the
Commission's policy of promoting competition in the
industry.40 Several commenters asserted that allowing the
pre-filing collaborative process to address non-environmental issues
would cause unnecessary delay, emphasizing that the Commission's
existing procedures are sufficient to address such topics as the need
for a project, rate design, and other market-based issues.41
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\40\ Industrials at 8; AGA at 6; and Great Lakes at 6.
\41\ Williston at 5-6; Great Lakes at 6; Sempra at 2; Williams
at 5; and Duke at 19.
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Commenters had varied opinions as to what constitutes environmental
issues, with one commenter requesting that the Commission clarify what
is an environmental issue.42 While there was general
agreement that issues such as need, capacity allocation and rates
should not be included within the review of environmental issues, some
commenters considered such issues as alternatives to a certificate
proposal, landowner matters, terms of service, and related market and
competitive matters to be non-environmental issues.43 Other
commenters expressed the view that it would be difficult, if not
impossible, to differentiate between environmental and non-
environmental issues.44 Many commenters stated that the
stakeholders involved in a collaborative team should be the ones to
decide what issues will be addressed in the pre-filing
process.45
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\42\ Duke at 20.
\43\ Sempra at 2; Williams at 3; Industrials at 7; Duke at 12.
\44\ Interior at 4; Nicor at 5.
\45\ NHA at 7; Nicor at 5; Interior at 4; NY DEC at 2.
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We agree with the commenters that propose that the potential gas
applicant and participants in any pre-filing process should determine
the range of issues to be addressed in a collaboration. While the final
rule adopted herein sets forth procedures for establishing a pre-filing
collaborative process and the preparation of a preliminary draft NEPA
document, nothing in it precludes the applicant and the participants
from voluntarily deciding to use the process to address non-
environmental issues which are not required to be a part of the NEPA
process.
F. Procedural Questions
(1) Notice
As proposed in the NOPR, Sec. 157.22(c)(1) of the rule required an
applicant contemplating a pre-filing collaboration to make a
``reasonable effort'' to contact all ``resource agencies, Indian
tribes, citizens'' groups, landowners, customers, and others affected
by the applicant's proposal.'' Proposed Sec. 157.22(c)(3) would require
such an applicant to send a copy of its request to use the pre-filing
collaborative process to the same entities. Under Sec. 157.22(d)(1),
the applicant's request must include provisions to distribute a
description of its proposed project (including its intended purpose,
location and scope, and the estimated dates of construction) at an
initial information meeting (or meetings) open to the public. Pursuant
to Sec. 157.22(e), the Commission will publish in the Federal Register
a notice of the request to initiate a pre-filing collaborative process
and invite comments on the request. The Director of the Office of
Pipeline Regulation (OPR) will review the comments submitted on the
applicant's request and decide whether to approve the proposed process.
If a request to use the process is approved, under
Sec. 157.22(f)(1), the Commission will give notice in the Federal
Register; the applicant will give notice in local newspaper(s) in the
county or counties in which the project is proposed to be located, of
the initial public meeting(s) and, subsequently, the scoping of
environmental issues.46 Under Sec. 157.22(f)(5), the
applicant must maintain a public file of all the relevant documents
generated during the process, and the Commission will maintain a public
file of the initial description of the proposed project, each scoping
document, the periodic reports on the process and the preliminary draft
EA or EIS. Under Sec. 157.22(f)(4), the applicant must send copies of
all these filings to each participant in the pre-filing collaborative
process that requests a copy.
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\46\ In the interest of simplifying the process, we have deleted
proposed 18 CFR 157.22(f)(2), which would have required the
potential applicant to file periodic progress reports with the
Commission. We have also deleted proposed 18 CFR 157.22(b),
describing the goals of the process, because those goals are
adequately described in the preamble herein and do not need to be
articulated again in the regulatory text.
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Some commenters contended that these procedures are inadequate to
ensure that all interested parties: (1) Receive actual notice of the
intent to
[[Page 51214]]
initiate a collaboration; (2) are informed that a collaboration has
been initiated; and (3) have a meaningful opportunity to participate
and be heard in a collaboration.47
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\47\ Advisory Council at 1-2; Indicated Shippers at 8-12; Trout
Unlimited at 3-4.
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Some commenters proposed that notice of the request to use the
collaborative process be sent by certified mail to all landowners
directly impacted by a proposed project.48 One commenter
expressed concern that without confirmed notification trespassing
49 may occur.50 This commenter also asked: (1)
Whether the Commission will verify that the list of contacted
landowners is accurate and complete; (2) how participants will be
informed of relevant Commission filings; and (3) how participants can
obtain information about scientific studies and alternative route
analyses and deadlines therefore.51
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\48\ Ferguson & Tavares at 1; Southern Landowners at 2-3.
\49\ Trespass is governed by state law, and is not affected by
the final rule because the rule adopts procedures that apply prior
to the issuance of a certificate. Specific allegations of trespass
may be referred to the Commission's Enforcement Task Force Hotline
at (202) 208-1390 or (877) 303-4340 or by E-mail to
hotline@ferc.fed.us.
\50\ Ferguson & Tavares at 1.
\51\ Id.
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One commenter was concerned that once underway, a pre-filing
collaborative process may so change the parameters of a proposed
project that it may affect persons whom the applicant did not initially
inform. That commenter urged us to adopt some means to inform and bring
such persons into an ongoing collaboration.52
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\52\ Indicated Shippers at 12.
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One commenter requested that the Commission clearly state how the
universe of potentially interested entities is to be defined and urged
that the Commission require the applicant to include the State Historic
Preservation Officer (SHPO) or Tribal Historic Preservation Officer
(THPO) in any pre-filing collaborative process.53
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\53\ Advisory Council at 2.
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One commenter requested that the Commission describe in greater
specificity the minimum required contents of the project description
included in the applicant's initial notice.54 To ensure that
participants have a full understanding of the collaborative process,
that commenter proposed that the Commission publish an explanation with
guidelines covering the process and require that the applicant
distribute these guidelines to potentially interested entities with its
initial notice of its request to undertake a pre-filing collaboration.
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\54\ NY DEC at 3.
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We believe that with the changes discussed herein, the notice
procedures proposed in the NOPR should be adopted. In the final rule,
Sec. 157.22(c)(1) requires an applicant to make a reasonable effort to
contact ``all entities affected by the applicant's proposal.'' As
revised herein, Sec. 157.22(c)(3) requires the applicant, within five
days, to send a copy of the request to use the pre-filing collaborative
process on ``all affected resource agencies and Indian tribes and on
all entities that have expressed an interest in the collaborative
process.'' 55 The Commission will publish notice of the
request in the Federal Register. If the use of the pre-filing process
is approved, the applicant must conduct a public meeting or meetings at
which a description of its proposed project will be distributed. The
Commission will give notice in the Federal Register and the applicant
will give notice in local newspapers of the initial public meeting(s)
and of the scoping of environmental issues.56 As the pre-
filing process unfolds, the applicant must keep a complete file, open
to the public, of the process; essential information about the process
must be submitted to the Commission for insertion into its public file,
and copies of these filings must be sent to each participant in the
process that requests a copy. In addition, the regulations require the
negotiation of a communications protocol, governing the flow of
information between the participants in the process.
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\55\ The regulatory language adopted herein is based on 18 CFR
4.43(i), which is applicable to hydropower applicants using the
alternative pre-filing consultation process.
\56\ The timing and sequencing of notices of environmental
scoping may vary considerably among different projects and
collaborative processes.
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The notice procedures for the pre-filing collaborative process for
potential gas applicants are similar to the comparable procedures now
in effect for hydropower applicants. We are not aware of any
significant noticing problems under the hydropower procedures. We do
not think it is useful to try to describe further in the final rule the
universe of potentially interested entities. We note the Commission
will have the opportunity to review the adequacy of the applicant's
notification efforts when deciding whether to permit a potential
applicant to use the pre-filing collaborative process. Further, the
Commission's staff will work closely with the applicant and
participants during the process to ensure appropriate efforts are made
to inform interested persons of the proposed project and of any
subsequent changes to the initial proposal.57
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\57\ The Commission encourages applicants and participants, to
the extent practical on a case-by-case basis, to consider making use
of the Internet to supplement the notification procedures mandated
herein.
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We note that the regulations require that notice of the request be
sent to resource agencies and Indian tribes. We believe that this
notice, along with the required Federal Register notice, is sufficient
to alert the SHPO or THPO that a pre-filing collaborative process is
being considered. In response to the concerns raised in the comments
and to clarify these noticing requirements, we are adding in the final
rule, at new Sec. 157.1, definitions of ``Indian tribe'' and ``resource
agency.'' These definitions are based on similar definitions in the
Commission's hydropower regulations, which apply to potential
hydropower applicants using the standard or alternative pre-filing
consultation processes.58
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\58\ See 18 CFR 4.30, 4.34(i), 4.38 and 16.8.
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We believe that the concerns about notification to landowners are
adequately addressed by the provisions in the final rule, along with
the regulations proposed in Docket No. RM98-17-000,59 which
include prompt notification to landowners by mail once an application
for gas facilities is filed with the Commission. We are not persuaded
that there is any need in the pre-filing process for the applicant and
the Commission to provide landowners' notice by certified mail.
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\59\ Landowner Notification, Expanded Categorical Exclusions,
and Other Environmental Filing Requirements, Notice of Proposed
Rulemaking, 64 FR 27717 (May 21, 1999), IV FERC Stats. & Regs. para.
32,540 (Apr. 28, 1999).
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How all types of information, including studies and analyses that
are part of the NEPA process, are distributed and made available to the
public is an issue we expect that the applicant and participants will
take up, resolve, and make part of the communications protocol to be
filed with each request for a collaborative process.
We do not believe it is appropriate to specify further in the
regulations what description of the proposed project the potential
applicant must make in its notices and what procedures may be used for
participating in the pre-filing collaborative process. We believe the
project description required by the final rule is both broad and
particular enough to alert entities to proposals that they may want to
monitor or participate in. As far as the procedural steps in a
collaborative process and the
[[Page 51215]]
participants' roles are concerned, we will leave that up to the
applicant and the collaborative participants to decide in each case. To
assist interested entities in developing an understanding of these
types of processes and their role in the Commission's regulation of gas
projects, we are incorporating into Sec. 157.22(c)(3) of the final rule
a requirement that a potential applicant requesting to use a pre-filing
collaborative process must include a copy of the regulations adopted
herein when it is sending notice of its request to all affected
resource agencies, Indian tribes, and entities that have expressed an
interest in the process.60
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\60\ As a means to inform potentially interested persons of
procedures generally applicable to pipeline projects, the Commission
has made available to the public, in pamphlet form, answers to
questions frequently asked concerning gas certificate applications.
In the event the need arises for a similar procedural summary or a
set of guidelines with respect to the pre-filing collaborative
process for gas facilities, the Commission will make it available in
the same manner.
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(2) Involvement of Commission Staff
Some commenters asked why Commission approval should be required
for an applicant to use a pre-filing collaborative
process.61 It is not necessary for applicants to seek
Commission approval for activities which take place without substantial
involvement by Commission staff and without the preparation of a draft
NEPA document.
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\61\ Martin at 1, Enron at 3.
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One commenter urged the Commission to describe in greater detail
the benefits available through use of the process and to clarify the
role and purpose of Commission staff involvement.62 The role
of Commission staff is to guide and support the pre-filing process but
not to lead or direct it. Participants in the process may choose a
``neutral,'' such as a facilitator or mediator, to coordinate the
collaborative group's efforts, and this role may be filled by any
person that the group selects.63
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\62\ Trout Unlimited at 5-6.
\63\ In the interest of simplifying the process, we have deleted
proposed Sec. 157.22(f)(9), which would have authorized participants
to request dispute resolution by the Commission.
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(3) Consensus
As proposed in the NOPR, and as adopted herein in
Sec. 157.22(b)(1), a potential applicant requesting to use a pre-filing
collaborative process must contact entities affected by its proposal
and demonstrate that a ``consensus exists that the use of the
collaborative process is appropriate under the circumstances.'' Under
Sec. 157.22(f), a participant that has cooperated in the pre-filing
process can petition the Commission for an order to terminate the
process if a consensus to support it no longer exists and if continued
use of the process would not be productive.64 In the NOPR,
we explained that the requirement for a consensus means that ``the
weight of opinions expressed makes it reasonable to conclude that under
the circumstances the use of the collaborative process will be
productive.'' The applicant's consent to use of this process would be
required, but the agreement of everyone interested in the proposal
would not be required for the Commission's approval of the process. The
term ``consensus'' is also used in Sec. 157.22(f), providing that if a
consensus supporting use of the process no longer exists, a participant
can petition the Commission for an order directing the applicant to use
appropriate procedures to complete its application.
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\64\ The petitioner must also serve a copy of the petition on
all participants and recommend specific procedures for completing
the pre-filing process.
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A number of commenters requested clarification regarding the
criteria the Commission will use in determining whether to approve or
deny an applicant's request to initiate a pre-filing collaborative
process.65 One commenter argued that ``consensus'' should be
defined as ``unanimous agreement by the various stakeholders,''
66 while other commenters urged that the Commission not
approve a request to use a pre-filing collaborative process unless
``critical constituencies'' or a majority of the ``customers/shippers''
that may use the proposed facilities endorsed the process.67
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\65\ E.g., NY DEC at 3-4.
\66\ Interior at 3.
\67\ Industrials at 8-10; EDF at 2.
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One commenter was unclear if the Commission, in considering
comments in response to a request to initiate a collaboration will,
pursuant to proposed Sec. 157.22(e), accept comments only from entities
previously notified by the applicant or will also accept comments from
entities not so notified. That commenter recommended revising proposed
Secs. 157.22(c) and (e) 68 to specify whether the Commission
may compel an applicant to admit a late-arriving interested entity to
an ongoing collaboration.69
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\68\ Because of our deletion of several subsections of the
regulations that were proposed in the NOPR, as mentioned above,
proposed Secs. 157.22(c) and (e), as well as other subsections, have
been renumbered in the final rule.
\69\ NY DEC at 3.
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The Commission addressed similar concerns in the rulemaking
adopting the regulations governing the alternative pre-filing process
for hydropower applicants. 70 Our subsequent experience with
those regulations does not lead us to change the conclusion we reached
at that time. For the purposes of determining whether the Commission
should grant an applicant's request to use the pre-filing collaborative
process and determining whether such a process should be allowed to
continue, ``consensus'' means ``general agreement'' or ``collective
opinion: The judgment arrived at by most of those concerned.'' While
unanimity among the participants in a collaborative process reflects
consensus, it is not essential to support a consensual approach. In its
request to use the pre-filing collaborative process, the applicant need
only show that the weight of opinions expressed by the entities
interested in the process makes it reasonable to conclude that under
the circumstances use of the process will be productive. No signed
agreement or use of a particular voting procedure is required to
memorialize the consensus on use of the process. The Commission will
apply similar standards in evaluating any petition alleging that the
consensus for the process has collapsed and asking for an order to
bring it to a conclusion.
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\70\ Order No. 596, 62 FR 59802 (Nov. 5, 1997), III FERC Stats.
& Regs. para. 31,057 at 30,638-39 (1997).
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As stated in Order No. 596, the Commission expects the potential
applicant, prior to filing its request to use the pre-filing
collaborative process, to engage in a series of interactions with those
who may be interested in its proposal, going beyond an exchange of
letters. Such interactions could include teleconferences and meetings
involving Commission staff to explore the use of the process. In some
cases the applicant's showing in support of its request to use the
process may rely on a lack of objections raised in such meetings, in
order to allow the applicant and the participants an opportunity to try
the process. Where the position of potentially key players in a
collaborative process is not clear, the Commission's staff may reach
out to solicit their position before reaching any decision on a request
to use the process. If entities that appear to be key players oppose
the use of a collaborative process, we will carefully weigh whether the
process should be allowed to proceed under these circumstances, and
staff may hold discussions with those concerned to try to find ways to
reconcile different views on the use of the process.
[[Page 51216]]
We are therefore not making any changes in the final rule regarding
``consensus'' as it applies to requests to use or to discontinue the
pre-filing collaborative process. Likewise, we do not believe that it
would be appropriate to specify criteria that the Commission will use
in making decisions on such requests, beyond the general considerations
outlined above.
We clarify that in deciding whether to approve an applicant's
request to use the pre-filing collaborative process, under
Sec. 157.22(d) (as it is numbered in the final rule), all timely
submitted comments will be considered, whether in response to actual
notice by the applicant or not.
Because the procedures for the pre-filing collaborative process in
the final rule provide for abundant notice to potentially interested
persons and entities, as discussed above, latecomers may enter as
participants provided they do not delay or disrupt the process, i.e.,
latecomers must deal with the applicant and the collaborative group
that has formed and with any ground rules that have already been
established. For these reasons we strongly encourage those interested
in an applicant's proposal to participate from the outset in any pre-
filing collaborative process that is authorized, if not directly then
indirectly through others with similar interests. At the very least, we
expect interested entities to monitor the progress of a collaboration
through the many sources of public information that the rule requires.
(4) Concluding the Pre-Filing Process
As noted above, under proposed Sec. 157.22(g) 71 a
participant that has cooperated in the pre-filing process can petition
the Commission for an order to terminate the process if a consensus to
support it no longer exists and if continued use of the process would
not be productive. The request must recommend specific procedures that
are appropriate to use to complete the process, and the petition must
be served on all the other participants in the process.
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\71\ Proposed Sec. 157.22(g) appears as Sec. 157.22(f) in the
final rule.
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One commenter requested that proposed Sec. 157.22(g) be modified to
state that when a participant submits a petition to the Commission
claiming that a consensus no longer exists to support the process,
other participants may submit comments in response to that
petition.72 The commenter also asked whether a collaboration
might continue without the participation of the applicant and proposed
that the Commission describe the circumstances under which it would
intervene to end a pre-filing collaborative process.
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\72\ NY DEC at 3-4.
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Several commenters were concerned that proposed Sec. 157.22(g)
would impede a prospective applicant's right to file an application
with the Commission at any time and, by so filing, end a pre-filing
collaborative process at the applicant's discretion.73
Another commenter suggested that if a pre-filing collaboration
stagnates, the Commission might require the applicant to show cause why
pre-filing efforts should not end and an application be
filed.74
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\73\ El Paso at 19-20; Enron at 3; Great Lakes at 4-5; INGAA at
4; PG&E at 18; Tejas at 14-15; Williston at 6-7.
\74\ Commerce at 2-3.
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When a participant in a pre-filing collaborative process believes
that the consensus supporting the use of the process has collapsed and
petitions the Commission for an order terminating it, other
participants may submit a response to the Commission. Any such response
should be served on all other participants and submitted to the
Commission as soon as possible. In seeking to determine whether a
consensus still exists to support continuation of the process, the
Commission will consider both the petition and timely responses to it.
With this clarification, we see no need to revise proposed
Sec. 157.22(g) in the final rule.
The proposed regulations were not intended to preclude an applicant
from withdrawing from and ending an ongoing pre-filing collaborative
process by filing an application, which an applicant may do under
current practice and procedures. As stated in the preamble to the NOPR:
``Entering into a pre-filing collaboration will not bar an applicant
from interrupting pre-filing efforts by exercising its existing option
to file an application.'' In response to the concerns expressed in the
comments, and in order to ensure that the new regulations in no way
intrude on a project sponsor's existing rights, in the final rule we
are adding a new Sec. 157.22(h) to clarify that these rights are not
affected by the rule.
We are also changing the first sentence of proposed Sec. 157.22(g)
to make it clear that any order issued in response to a petition will
only end the pre-filing process and will not affect the applicant's
existing right to file an application for the proposed
facilities.75
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\75\ Hydropower applicants using the alternative pre-filing
procedures may be subject to different requirements in such a case,
as they must fulfil detailed pre-filing consultation requirements
under the standard process. See 18 CFR 4.38 and 16.8.
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(5) Offer of Settlement
The NOPR anticipated that one outcome of a pre-filing collaborative
process could be a settlement or agreement on issues by the
participants. The results could be submitted to the Commission with the
application and the preliminary draft NEPA document as an offer of
settlement covering all or certain issues raised in the process, as a
stipulation of facts, or in conjunction with certain documentation
(such as studies that have been conducted pursuant to the process).
Commenters requested that the Commission clarify in the regulations
whether an agreement or offer of settlement resulting from a pre-filing
process is binding on all the participants in the process and pointed
out that in some cases such settlements may not satisfy criteria
established in applicable statutes and regulations.76
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\76\ NY DEC at 3, Advisory Council at 2.
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One commenter was concerned that entities opposing a collaboration
are left no option but to refuse to participate, risking exclusion from
``a settlement that would effectively moot the formal proceeding before
the Commission.'' 77
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\77\ Indicated Shippers at 10.
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The manner in which a settlement is binding on signatories is a
matter properly described in the language of the settlement. The terms
of a settlement may bar signatories from protesting certain aspects of
an application. We note, however, that no provision in the Commission's
regulations restricts a collaborative participant or non-participant
from intervening, commenting on, and protesting any aspect of an
application or settlement. Collaborative participants that are non-
signatories to a settlement or agreement are obviously not committed to
the terms of that settlement or agreement.78
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\78\ See, e.g., Kern River Gas Transmission Company, 87 FERC
para. 61,128 at 61,506 (1999), in which the Commission found that a
party had not been afforded the opportunity to participate in
discussions leading to a rate settlement, and ``in the spirit of the
effort already expended,'' withheld ruling on the pending settlement
while the Director of the Commission's Dispute Resolution Service
convened ``a meeting of the parties to arrange a process that will
foster negotiation and agreement.''
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In any proceeding on an application in which an offer of settlement
is filed, the Commission will carefully review the offer, including all
comments supporting or opposing it, to determine whether the settlement
proposed complies with all applicable legal standards and Commission
policy. The Commission will not approve any offer unless it is
supported by substantial evidence such as documents and studies. When
evidence is developed in
[[Page 51217]]
the course of a pre-filing collaboration, the applicant should include
such information in the administrative record in the proceeding on the
application.
(6) Post-Filing Changes in Proposed Facilities
The NOPR did not address the impact of an applicant's participation
in a pre-filing process on its rights to revise its proposal after
filing an application with the Commission.
One commenter stated that, in the past, changed circumstances have
compelled it to modify the terms of a requested authorization after the
application was initially filed and expressed concern that pre-filing
discussions cannot anticipate or address such changes to a proposal
that may become necessary after filing.79 This commenter
claimed that the existing certificate process is flexible enough to
accommodate such post-filing changes and was concerned that
understandings reached in a pre-filing collaboration could inhibit or
delay the submission of amendments (incorporating such changes) to an
application that has been filed.
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\79\ Tejas at 11-12.
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The final rule does not restrict an applicant's ability to make
changes to the parameters of a proposed project after the application
is filed. Depending on the extent of the changes, the application may
need to be amended or refiled. An applicant may make a post-filing
change in a project that raises issues that go beyond those addressed
in the pre-filing process. Such post-filing changes may well reflect
the applicant's reasoned response to recommendations received in the
pre-filing process or in the post-filing review, including the NEPA
process. The new regulations will not in any way inhibit or delay an
applicant from making changes to a proposed project.
The pre-filing process is not designed to compel an applicant to
bind itself to build or abandon a project as initially proposed. In the
context of a collaboration, a project sponsor may, but need not, make
commitments that vary in their rigidity and enforceability as a means
to firm up support for or satisfy critics of a project. Such efforts
are no different from the precedent agreements gas pipelines have
secured under existing procedures to show demand for proposed new
capacity. Similarly, in order to address concerns raised by landowners
or resource agencies, pipelines have often committed to routing a
proposed line along a particular right of way prior to filing an
application. An applicant may feel bound to honor such commitments made
prior to filing, whether as part of a pre-filing collaborative process
or not.
Of course parties to a proceeding on an application for gas
facilities, including parties that did not participate in the pre-
filing process, may oppose the application as initially filed or as
revised or amended. The Commission will consider any such opposition
prior to issuing a decision on the application.
G. Miscellaneous
(1) Study Requests Made during the Pre-filing Process
The section proposed in the NOPR as Sec. 57.22(f)(7) and adopted
herein as Sec. 157.22(e)(6) states in part: ``Additional requests for
studies may be made to the Commission after the filing of the
application only for good cause shown.''
One commenter noted that an applicant may not conduct all the
studies requested by participants in the pre-filing process, and sought
assurances that the regulations do not preclude a participant in the
process from renewing its request for a study that had been made by the
participant and had been rejected by the applicant in the pre-filing
stage. Specifically, the commenter requested that the language in
proposed Sec. 157.22(f)(7) be changed to substitute ``study requests''
for ``additional requests for studies.'' 80
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\80\ Id.
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We do not believe it is necessary to change the language in
Sec. 157.22(f)(7). We confirm that participants (including resource
agencies) in a pre-filing process (either gas or hydropower), after an
application has been filed, are free to renew requests for studies that
were made but rejected by the applicant in the pre-filing process. In
such cases, however, we encourage the participants to make every effort
to resolve their differences with the applicant as part of the pre-
filing process and to consider the filing of a request for dispute
resolution with the Commission in the pre-filing stage if such efforts
are not successful.
(2) Communications Protocol
Section 157.22(c)(2) as proposed in the NOPR, adopted herein as
Sec. 157.22(b)(2), states that an applicant seeking to undertake a pre-
filing collaboration must submit with its request ``a communications
protocol, supported by interested entities, governing how the applicant
and other participants in the pre-filing collaborative process,
including the Commission staff, may communicate with each other
regarding the merits of the applicant's proposal and recommendations of
interested entities.'' The NOPR stated that this protocol would
designate how communications in the pre-filing process would be
documented and made available to the participants and the public.
One commenter asked the Commission to provide more guidance
regarding the required communications protocol, including what such a
protocol must include or may exclude, how it may be implemented, and
the consequences for violating it.81 Another commenter was
concerned that the applicant may exert undue influence over a group's
development of the communications protocol and therefore urged the
Commission to impose its own protocol on all collaborative
groups.82
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\81\ Industrials at 10.
\82\ Smith at 3.
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The communications protocol governs how the applicant, Commission
staff, and participants in the pre-filing collaborative process may
communicate with each other during the process. The protocol should
specify how such communications will be documented and made available
to the participants and the public.83 Because we want to
leave the applicant and participants room to tailor the protocol to
suit the particular circumstances of each collaborative process, we
will not add requirements to the final rule specifying the content or
manner of implementation of a protocol. When an applicant files its
request to use the pre-filing collaborative process, the Commission
will have the opportunity to review the proposed communications
protocol and prospective participants' comments regarding it before
deciding whether to authorize the requested pre-filing collaboration.
We can reject the protocol or require revision of its terms if they are
inadequate, inappropriate, or prejudicial in any way.
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\83\ The Commission staff can provide examples of communications
protocols that have worked on hydropower projects and can assist the
applicant and participants in defining the necessary elements.
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(3) Record in Certificate Proceedings
Section 157.22(e)(5) as adopted herein (Sec. 157.22(f)(6) in the
NOPR) states: ``An applicant authorized to use the pre-filing
collaborative process may substitute a preliminary draft environmental
review document and additional material specified by the Commission
instead of an environmental report with its application as required by
Sec. 380.3 of this chapter and need not supply additional
[[Page 51218]]
documentation of the pre-filing collaborative process with its
application. The applicant will file with the Commission the results of
any studies conducted or other documentation as directed by the
Commission, either on its own motion or in response to a motion by a
party to the proceeding.''
One commenter asked the Commission to clarify whether ``additional
material'' is to include documentation sufficient to satisfy the
identification and evaluation requirements of section 106 of National
Historic Preservation Act.84 Other commenters asked whether
any portion of pre-filing discussions would become part of the record
after the application is filed with the Commission 85 and,
if the post-filing record rests on the pre-filing discussions, whether
dissenting points of view would appear in the record.86
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\84\ Advisory Council, attachment at 2-3.
\85\ Industrials at 10.
\86\ Sempra at 3.
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We expect that the information submitted with the application after
a pre-filing process would be equivalent to that normally submitted
pursuant to Sec. 380.3, for purposes of evaluating the consistency of
the application with the National Historic Preservation Act and other
relevant statutes.
We expect that only pertinent parts of the information gathered in
the pre-filing process will become part of the record of the proceeding
once an application has been filed.87 At the conclusion of
the pre-filing process, the applicant and the collaborative group
should decide what information they wish to become part of the
administrative record in the proceeding on the application, and that
information should be submitted to the Commission with the application.
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\87\ Examples of information gathered in the pre-filing process
that would not normally become part of the administrative record of
the proceeding on the application would include drafts of studies or
reports, routine correspondence, and privileged settlement
discussions. Information that would normally be submitted to the
Commission for inclusion in the record would include the results of
relevant scientific studies or other investigations of resource
concerns conducted during the pre-filing process.
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Any party to the proceeding, regardless of whether it participated
in the pre-filing process or whether it supports the application, may
seek to enter additional information into the record to support the
party's position, and if necessary or appropriate, the Commission may
direct such information to be submitted.
(4) Rights of Parties
Currently, once an application is filed, interested persons can
intervene, comment, and/or protest. Several commenters emphasized that
it would be inappropriate if this existing process were curtailed in
any way with respect to applications filed following a
collaboration.88 One commenter sought assurances that
participants in a pre-filing process can withdraw from it without
prejudicing their right to later intervene after an application has
been filed and participate in the proceeding before the
Commission.89 One commenter insisted the Commission must
accord the same treatment to all applications, whether filed after a
collaboration or without any pre-filing consultation.90
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\88\ AGA at 7-8; Industrials at 9; Sempra at 3.
\89\ EDF at 2.
\90\ INGAA at 3-4.
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All entities, including those that do not participate in or
withdraw from a pre-filing process, retain their existing rights to
intervene in the proceeding concerning the proposed project once an
application is actually filed and to comment on, support or protest the
application. The time the Commission needs to reach a decision is in
part a function of the complexity of the issues raised, the degree to
which issues are contested, and the thoroughness with which the
application explores the issues. In particular, when an application is
filed in which the environmental impacts of a proposed project have
been adequately addressed and the applicant has agreed to take actions
to provide appropriate mitigation for such impacts and enhancement, the
time required for Commission review may be significantly shorter than
for an application that does not discuss such issues.
(5) Relation to Ex Parte Regulations
One commenter 91 questioned the Commission's legal
authority to provide for pre-filing collaboration for gas applicants,
contending this could be construed to be a form of alternative dispute
resolution (ADR) that could run afoul of ex parte
prohibitions.92 Commenters sought clarification on how ex
parte rules will affect the collaborative process.93 One
commenter suggested that, if not the letter, then the spirit of the ex
parte prohibitions would be compromised were the same Commission staff
to participate in pre-filing collaboration and to later serve in an
advisory role in the decision-making proceeding on any resulting
application that was filed.
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\91\ Indicated Shippers at 4 and 14.
\92\ See 5 USC 551-557 and 18 CFR 385.604 and 385.2201.
\93\ Advisory Council, attachment at 3; Martin at 2.
---------------------------------------------------------------------------
The Commission's ex parte rules 94 are intended to avoid
any prejudice, real or apparent, that might result to a party in a
contested, on-the-record proceeding before the Commission, were a party
or ``interceder'' to communicate information regarding the merits to
decision-making (advisory) staff without the knowledge of other
parties. Since the pre-filing collaborative process established by the
final rule is not a proceeding before the Commission (which commences
only after the filing of an application), the Commission's regulations
precluding ex parte communications do not apply to communications with
staff during the course of such a pre-filing process. The
communications protocol, however, typically addresses concerns about
private communications with Commission staff during the pre-filing
process. Collaborative participants have the flexibility in negotiating
the protocol to set the level of scrutiny that they feel is appropriate
to apply to exchanges of information among participants and with the
Commission staff. Consequently, we do not believe that the involvement
of the project sponsor, interested persons, or Commission staff in pre-
filing, pre-decisional activities conflicts with the Commission's ex
parte rules.
---------------------------------------------------------------------------
\94\ See 5 U.S.C. 557; 18 CFR 385.2201; see also Regulations
Governing Off-the-Record Communications, Notice of Proposed
Rulemaking, 63 FR 51312 (Sept. 25, 1998), FERC Stats. & Regs.
(Regulations Preambles 1988-1998) para. 32,534 (Sept. 16, 1998).
---------------------------------------------------------------------------
We are not persuaded that a staff member's participation in a pre-
filing discussion should disqualify that individual from serving in an
advisory role in any proceeding on an application that is subsequently
filed. We note that staff representations in the pre-filing forum can
not in any way bind the Commission, because the Commission alone is
responsible for making all final decisions on the application.
IV. Environmental Analysis
Commission regulations describe the circumstances where preparation
of an EA or an EIS will be required.95 The Commission has
categorically excluded certain actions from this requirement as not
having a significant effect on the human environment.96 No
environmental consideration is necessary for the promulgation of a rule
[[Page 51219]]
that is clarifying, corrective, or procedural, or that does not
substantially change the effect of legislation or regulations being
amended.97
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\95\ Regulations Implementing the National Environmental Policy
Act, 52 FR 47897 (Dec. 17, 1987), codified at 18 CFR part 380.
\96\ 18 CFR 380.4(a)(2)(ii).
\97\ 18 CFR 380.4.
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The final rule adopted herein is procedural in nature. It
implements an optional pre-filing collaborative process that a
prospective applicant for a natural gas authorization may wish to use.
Thus, no environmental assessment or environmental impact statement is
necessary for the requirements adopted in the rule.
V. Regulatory Flexibility Certification
The Regulatory Flexibility Act of 1980 (RFA) 98
generally requires a description and analysis of final rules that will
have significant economic impact on a substantial number of small
entities. Pursuant to section 605(b) of the RFA, the Commission hereby
certifies that the final rule adopted herein will not have a
significant economic impact on a substantial number of small entities.
---------------------------------------------------------------------------
\98\ 5 U.S.C. 601-612.
---------------------------------------------------------------------------
The procedural regulations adopted in this final rule are purely
voluntary in nature, and are designed to reduce burdens on small
entities (as well as large entities) rather than to increase them. The
pre-filing collaborative process adopted herein is optional, will not
alter or replace the procedures currently prescribed in our
regulations, and will not be available unless it is the consensus of
the persons interested in the proposed project to use that process.
Under this approach, each small entity will be able to evaluate for
itself whether the pre-filing process would be beneficial or
burdensome, and could decline to participate in the proposed process if
it appeared to be more burdensome than beneficial. Under these
circumstances, the economic impact of the final rule will be either
neutral or beneficial to the small entities affected by it.
VI. Information Collection Statement
The regulations adopted in this final rule will impose reporting
burdens only on those applicants that voluntarily choose to use the
pre-filing collaborative process, and will only require minor
additional filing requirements, as most of the reporting burdens
associated with preparing and filing an application for natural gas
facilities or services are imposed by existing regulations. The other
additional burdens of the process do not involve filings with the
Commission, but consist of various outreach efforts of the potential
applicant and related interactions with entities interested in its
proposal. An applicant would presumably only incur such additional
burdens if it believed that, in the long run, it would reduce the time
required to obtain Commission authorization or save on litigation and
other costs incurred to pursue its application using only the standard
procedures.
The Commission has made approximate estimates of the additional
time that may be required of an applicant to comply with the pre-filing
collaborative process. It is difficult to be precise about such
estimates, because the time required for one applicant could vary
considerably from the time required for other applicants, depending
upon the circumstances involved, including the complexity of the issues
raised, the total number of participants in the pre-filing process, and
how cooperatively those participants worked together. If the pre-filing
collaborative process were successful and resulted, for example, in the
filing of an agreement or an offer of settlement with the Commission,
the applicant might be able to save substantially more time by avoiding
rehearing and litigation than was invested in the use of that process.
If an applicant requested and was allowed to use the pre-filing
collaborative process for an average project requiring a significant EA
or an EIS, the main additional burden areas, with the estimated hours
to comply with each, are:
------------------------------------------------------------------------
Burden
Process (hours of
effort)
------------------------------------------------------------------------
(1) contact interested entities;............................. 80
(2) prepare and submit request, including communications 80
protocol;...................................................
(3) prepare and distribute scoping and hold related meetings; 32
(4) develop agenda and other documents, including minutes, 802
for all meetings and prepare and distribute them (only
additional time as compared to presently required meetings;.
(5) prepare and publish public notices;...................... 88
(6) prepare and submit required Commission filings;.......... 64
(7) maintain a complete record of the pre-filing consultation 208
proceedings that would be open to the public................
----------
Total.................................................... 1,354
------------------------------------------------------------------------
We estimate that to prepare and distribute the preliminary draft
environmental review document would not take any more time than to
prepare an environmental report under the standard process. Therefore,
the estimated additional burden of the tasks required of an applicant
if it voluntarily undertakes the alternative process totals 1,354
hours.
SoCal Ed expects that an effective collaboration will involve
frequent meetings with multiple participants and on this basis believes
the Commission underestimates the hours such meetings will
require.99 We clarify that the specified number of
additional hours reflects our judgment of the additional time needed to
conclude an average pre-filing collaboration. As previously explained,
the time devoted to a collaboration will vary considerably depending on
the complexity and contentiousness of the proposed project. A potential
applicant may expend less than 1,354 hours to complete a collaboration
for relatively minor modifications to existing facilities, whereas a
collaboration for a large and controversial project can be expected to
take longer. Given the inevitable variability in types of applicant
proposals, we have endeavored to strike a balance and gauge the
additional time needed to undertake a collaboration for a moderately
scaled project. For such a project, we affirm our estimate that an
additional 1,354 hours will be needed.
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\99\ SoCal Ed at 5-6.
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Office of Management and Budget (OMB) 100 approval is
required for certain information collection requirements imposed by
agency rules. Accordingly, pursuant to OMB regulations, the Commission
is providing notice of its information collections to OMB for review
under section 3507(d) of the Paperwork Reduction Act of
1995.101 The Commission identifies the information provided
under parts 153 and 157 of its regulations as FERC-539 and FERC-537,
respectively.
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\100\ 5 CFR 1320.11.
\101\ 44 U.S.C. 3507(d).
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Title: FERC-537, Gas Pipeline Certificates: Construction,
Acquisition, and Abandonment, and, FERC-539, Gas Pipeline Certificate:
Import/Export.
Action: Proposed Data Collection.
OMB Control No.: 1902-0060 and 1902-0062.
An 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: Businesses or other for profit, including small
businesses.
Frequency of Responses: On occasion.
Necessity of Information: The rule will revise the Commission's
regulations contained in 18 CFR parts 153 and 157.
[[Page 51220]]
Implementation of the rule will offer prospective applicants seeking to
construct, operate, or abandon natural gas facilities or services the
option, in appropriate circumstances and prior to filing an
application, of using a collaborative process.
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. The
Commission's Office of Pipeline Regulation (OPR) will use the data
included in applications to determine whether proposed facilities,
services, or abandonments are in the public interest as well as for
general industry oversight. This determination involves, among other
things, an examination of adequacy of design, costs, reliability,
redundancy, safety, and environmental acceptability of the proposal.
These requirements conform to the Commission's plan for efficient
information collection, communication, and management within the
natural gas industry.
Interested persons may obtain information on the reporting
requirements by contacting the following: Federal Energy Regulatory
Commission, 888 First Street, NE, Washington, DC 20426 (Attention:
Michael Miller, Office of the Chief Information Officer, Phone: (202)
208-1415, fax: (202) 273-0873, E-mail: michael.miller@ferc.fed.us).
For submitting comments concerning the collection of information
and the associated burden estimates, please send comments to the
contact listed above and to the Office of Management and Budget, Office
of Information and Regulatory Affairs (Attention: Desk Officer for
Federal Energy Regulatory Commission).
VII. Effective Date
These regulations become effective October 22, 1999. The Commission
has concluded, with the concurrence of the Administrator of the
Information and Regulatory Affairs of OMB, that this rule is not a
``major rule'' as defined in section 251 of the Small Business
Regulatory Enforcement Fairness Act of 1996.
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.
By the Commission. Commissioner Bailey concurred with a separate
statement attached.
David P. Boergers,
Secretary.
Appendix A--List of Commenters
Advisory Council on Historic Preservation (Advisory Council)
Alabama Historical Commission (Alabama)
Alabama Power Company (Alabama Power)
American Gas Association (AGA)
ANR Pipeline Company (ANR)
California Department of Water Resources (California Water)
Columbia River Inter-Tribal Fish Commission (CRITFC)
Duke Energy Companies (Duke)
Edison Electric Institute (EEI)
El Paso Energy Interstate Pipelines (El Paso)
Enron Interstate Pipelines (Enron)
Environmental Defense Fund (EDF)
FPL Energy Inc. (FPL)
Frederick W. Martin (Martin)
Great Lakes Gas Transmission Limited Partnership (Great Lakes)
Hydropower Reform Coalition (HRC)
Idaho Power Company (Idaho Power)
Interstate Natural Gas Association of America (INGAA)
Indicated Shippers
J. Ferguson & J. Tavares (Ferguson & Tavares)
Laurie G. Smith (Smith)
National Hydropower Association (NHA)
New York State Department of Environmental Conservation (NY DEC)
Nicor Gas (Nicor)
Northwest Hydroelectric Association (Northwest)
Oregon Departments of Fish and Wildlife and Environmental Quality
(Oregon)
PG&E Corporation (PG&E)
Process Gas Consumers Group, The American Iron and Steel Institute,
and
The Georgia Industrial Group (Industrials)
Sacramento Municipal Utility District (Sacramento)
Sempra Energy Companies (Sempra)
Southern California Edison Company (SoCal Ed)
Southern Tier Landowners Association (Southern Landowners)
Tejas Offshore Pipeline, LLC (Tejas)
Travis K. Bynum
Tri-Dam Project of the South San Joaquin and Oakdale Irrigation
Districts (Tri-Dam)
Trout Unlimited
U.S. Department of Agriculture, Forest Service (Forest Service)
U.S. Department of Commerce, National Marine Fisheries Service
(Commerce)
U.S. Department of the Interior (Interior)
U.S. Environmental Protection Agency (EPA)
Williams Gas Pipeline Company (Williams)
Williston Basin Interstate Pipeline Company (Williston)
Wisconsin Department of Natural Resources (Wisconsin DNR)
(Issued September 15, 1999)
BAILEY, Commissioner, concurring.
I support the voluntary use of the collaborative process adopted
in this document. I write separately only to question the need for
engrafting a voluntary process into the Code of Federal Regulations
as a rule. Putting aside a semantic discussion about whether a rule
is a rule or just an option, my concern derives from the
simultaneous issuance today of a certificate policy statement that
has as a goal the filing of complete applications that can be
processed expeditiously by minimizing adverse effects and working
out contentious issues in advance. I am concerned that these two
documents not be read in tandem so as to suggest the collaborative
process is anything other than voluntary. I want to make it
perfectly clear that from my perspective, this is the case.
Vicky A. Bailey,
Commissioner.
In consideration of the foregoing, the Commission amends Parts 153,
157 and 375 of Chapter I, Title 18, Code of Federal Regulations, as
follows:
PART 153--APPLICATIONS FOR AUTHORIZATION TO CONSTRUCT, OPERATE OR
MODIFY FACILITIES USED FOR THE EXPORT OR IMPORT OF NATURAL GAS
1. The authority citation for part 153 continues to read as
follows:
Authority: 15 U.S.C. 717b, 717o; E.O. 10485, 3 CFR, 1949-1953
Comp., p. 970, as amended by E.O. 12038, 3 CFR, 1978 Comp., p. 136,
DOE Delegation Order No. 0204-112, 49 FR 6684 (February 22, 1984).
2. Section 153.12 is added, to read as follows:
Sec. 153.12 Collaborative procedures for applications for
authorization to site, construct, maintain, connect, or modify
facilities to be used for the export or import of natural gas.
The definitions and pre-filing collaborative procedures for
certificate applications in Secs. 157.1 and 157.22 of this chapter are
applicable to applications under section 3 of the Natural Gas Act filed
pursuant to subpart B of this part.
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
3. The authority citation for part 157 continues to read as
follows:
Authority: 15 U.S.C. 717-717w; 3301-3432; 42 U.S.C. 7101-7352.
4. Section 157.1 is added, to read as follows:
Sec. 157.1 Definitions
For the purposes of this part--
[[Page 51221]]
Indian tribe means, in reference to a proposal or application for a
certificate or abandonment, an Indian tribe which is recognized by
treaty with the United States, by federal statute, or by the U.S.
Department of the Interior in its periodic listing of tribal
governments in the Federal Register in accordance with 25 CFR 83.6(b),
and whose legal rights as a tribe may be affected by the proposed
construction, operation or abandonment of facilities or services (as
where the construction or operation of the proposed facilities could
interfere with the tribe's hunting or fishing rights or where the
proposed facilities would be located within the tribe's reservation).
Resource agency means a Federal, state, or interstate agency
exercising administration over the areas of recreation, fish and
wildlife, water resource management, or cultural or other relevant
resources of the state or states in which the facilities or services
for which a certificate or abandonment is proposed are or will be
located.
5. Section 157.22 is added, to read as follows:
Sec. 157.22 Collaborative procedures for applications for certificates
of public convenience and necessity and for orders permitting and
approving abandonment.
(a) A potential applicant may submit to the Commission a request to
approve the use of collaborative procedures for pre-filing consultation
and the filing and processing of an application for certificate or
abandonment authorization that is subject to part 157 of this chapter.
(b) A potential applicant requesting to use the pre-filing
collaborative procedures must provide a list of potentially interested
entities invited to participate in a pre-filing collaborative process
and:
(1) Demonstrate that a reasonable effort has been made to contact
all entities affected by the applicant's proposal, such as resource
agencies, local governments, Indian tribes, citizens' groups,
landowners, customers, and others, and that a consensus exists that the
use of the collaborative process is appropriate under the
circumstances;
(2) Submit a communications protocol, supported by interested
entities, governing how the applicant and other participants in the
pre-filing collaborative process, including the Commission staff, may
communicate with each other regarding the merits of the applicant's
proposal and recommendations of interested entities; and
(3) Submit a request to use the pre-filing collaborative process
and, within five days, send a copy of the request, along with the
docket number of the request, instructions on how to submit comments to
the Commission, and a copy of Secs. 157.1 and 157.22, to all affected
resource agencies and Indian tribes, and all entities contacted by the
applicant that have expressed an interest in the pre-filing
collaborative process.
(c) As appropriate under the circumstances of the case, the request
to use the pre-filing collaborative procedures must include provisions
for:
(1) Distribution of a description of the proposed project
(including its intended purpose, location and scope, and the estimated
dates of its construction), and scheduling of an initial information
meeting (or meetings, if more than one such meeting is appropriate)
open to the public;
(2) The cooperative scoping of environmental issues (including
necessary scientific studies), the analysis of completed studies and
any further scoping; and
(3) The preparation of a preliminary draft environmental assessment
or preliminary draft environmental impact statement and related
application.
(d) The Commission will give public notice in the Federal Register
and the prospective applicant will inform potentially interested
entities of a request to use the pre-filing collaborative procedures
and will invite comments on the request within 30 days. The Commission
will consider the submitted comments in determining whether to grant or
deny the applicant's request to use the pre-filing collaborative
procedures. Such a decision will not be subject to interlocutory
rehearing or appeal.
(e) If the Commission accepts the use of a pre-filing collaborative
process, the following provisions will apply:
(1) To the extent feasible under the circumstances of the process,
the Commission will give notice in the Federal Register, and the
applicant will give notice in a local newspaper of general circulation
in the county or counties in which the facility is proposed to be
located, of the initial information meeting or meetings and the scoping
of environmental issues. The applicant shall also send notice of these
events to a mailing list approved by the Commission. To the extent
feasible under the circumstances of the process, the mailing list
should contain the names and addresses of landowners affected by the
project.
(2) The applicant must also file with the Commission a copy of the
initial description of its proposed project, each scoping document, and
the preliminary draft environmental review document.
(3) All filings submitted to the Commission under this section
shall consist of an original and seven copies. The applicant shall send
a copy of each filing to each participant that requests a copy.
(4) At a suitable location (or at more than one location if
appropriate), the applicant will maintain a public file of all relevant
documents, including scientific studies, correspondence, and minutes or
summaries of meetings, compiled during the pre-filing collaborative
process. The Commission will maintain a public file of the applicant's
initial description of its proposed project, scoping documents,
periodic reports on the pre-filing collaborative process, and the
preliminary draft environmental review document.
(5) An applicant authorized to use the pre-filing collaborative
process may substitute a preliminary draft environmental review
document and additional material specified by the Commission instead of
an environmental report with its application as required by Sec. 380.3
of this chapter and need not supply additional documentation of the
pre-filing collaborative process with its application. The applicant
will file with the Commission the results of any studies conducted or
other documentation as directed by the Commission, either on its own
motion or in response to a motion by a party to the proceeding.
(6) Pursuant to the procedures approved, the participants will set
reasonable deadlines requiring all resource agencies, Indian tribes,
citizens' groups, and interested entities to submit to the applicant
requests for scientific studies or alternative route analyses during
the pre-filing collaborative process. Additional requests for studies
may be made to the Commission after the filing of the application only
for good cause shown.
(7) During the pre-filing collaborative process the Commission may
require deadlines for the filing of preliminary resource agency
recommendations, conditions, and comments, to be submitted in final
form after the filing of the application.
(f) If the potential applicant or any resource agency, Indian
tribe, citizens' group, or other entity participating in the pre-filing
collaborative process can show that it has cooperated in the process
but that a consensus supporting the use of the pre-filing collaborative
process no longer exists and that continued use of that process would
not
[[Page 51222]]
be productive, the participant may petition the Commission for an order
directing the use by the potential applicant of appropriate procedures
to complete its pre-filing process. No such request will be accepted
for filing unless the participant submitting it certifies that the
request has been served on all other participants. The request must
recommend specific procedures that are appropriate under the
circumstances.
(g) The Commission staff may participate in the pre-filing
collaborative process (and in discussions contemplating initiating a
collaboration) and assist in the integration of this process and the
environmental review process in any case. Commission staff positions
are not binding on the Commission.
(h) A potential applicant for gas facilities is not precluded by
these regulations from filing an application with the Commission at any
time, even if the pre-filing collaborative process for the proposed
facilities has not been completed.
PART 375--THE COMMISSION
6. 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.
7. In Sec. 375.307, a new paragraph (h) is added, to read as
follows:
Sec. 375.307 Delegations to the Director of the Office of Pipeline
Regulation.
* * * * *
(h) Approve, on a case-specific basis, and make such decisions as
may be necessary in connection with the use of pre-filing collaborative
procedures, for the development of an application for certificate or
abandonment authorization under section 7 of the Natural Gas Act, or
the development of an application for facilities under section 3 of the
Natural Gas Act, and assist in the pre-filing collaborative and related
processes.
[FR Doc. 99-24615 Filed 9-21-99; 8:45 am]
BILLING CODE 6717-01-P
