[Federal Register Volume 63, Number 194 (Wednesday, October 7, 1998)]
[Proposed Rules]
[Pages 53853-53859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26720]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 4, 153, 157 and 375
[Docket No. RM98-16-000]
Collaborative Procedures for Energy Facility Applications; Notice
of Proposed Rulemaking
September 30, 1998.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Notice of Proposed Rulemaking.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
proposing to expand its procedural regulations governing the
authorization of natural gas facilities and services, and is
considering revising its procedural regulations governing applications
for licenses for hydroelectric projects. The proposed regulations are
intended 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 resolve significant issues. In addition, a
significant portion of the environmental review process could be
completed as part of the pre-filing collaborative process. This pre-
filing collaborative process is comparable to the process the
Commission recently adopted 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 proposed regulations
would not delete or replace any existing regulations. Finally, the
Commission is inviting comment on whether the existing collaborative
process for hydroelectric license and exemption applications, as well
as the proposed collaborative process for natural gas facilities and
services, should be made mandatory.
DATES: Comments on the Notice of Proposed Rulemaking are due December
7, 1998 and January 5, 1999 for reply comments. Comments should be
filed with the Office of the Secretary and should refer to Docket No.
RM98-16-000.
ADDRESSES: Federal Energy Regulatory Commission, 888 First Street,
N.E., Washington, DC 20426.
FOR FURTHER INFORMATION CONTACT:
Richard Hoffmann, Office of Pipeline Regulation, 888 First Street, N.E.
Washington, D.C. 20426, (202) 208-0066
Lon Crow, Office of Hydropower Licensing, 888 First Street, N.E.,
Washington, D.C. 20426, (202) 219-2651
Gordon Wagner, Office of the General Counsel, 888 First Street, N.E.,
Washington, DC 20426, (202) 219-0122
Merrill Hathaway, Office of the General Counsel, 888 First Street,
N.E., Washington, DC 20426, (202) 208-0825
SUPPLEMENTARY INFORMATION: In addition to publishing the full text of
this document in the Federal Register, the Commission provides all
interested persons an opportunity to inspect or copy the contents of
this document during normal business hours in the public reference
room, Room 2A, 888 First Street, N.E., Washington D.C. 20426.
The Commission Issuance Posting System (CIPS) provides access to
the texts of formal documents issued by the Commission. CIPS can be
accessed via Internet through FERC's Homepage (http://www.ferc.fed.us)
using the CIPS Link or the Energy Information Online icon. The full
text of this document will be available on CIPS in ASCII and
WordPerfect 6.1 format. CIPS is also available through the Commission's
electronic bulletin board service at no charge to the user and may be
accessed using a personal computer with a modem by dialing 202-208-
1397, if dialing locally, or 1-800-856-3920, if dialing long distance.
To access CIPS, set your communications software to 19200, 14400,
12000, 9600, 7200, 4800, 2400, or 1200 bps, full duplex, no parity, 8
data bits and 1 stop bit. User assistance is available at 202-208-2474
or by E-mail to [email protected]
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 Homepage using the RIMS
link or the Energy Information Online icon. User assistance is
available at 202-208-2222, or by E-mail to [email protected]
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, N.E., Washington, D.C. 20426.
[[Page 53854]]
I. Introduction
The Federal Energy Regulatory Commission (Commission) is proposing
to expand its procedural regulations governing the authorization of
natural gas facilities and services, and is considering revising its
procedural regulations governing applications for licenses, amendments
and exemptions for hydroelectric projects. The proposed regulations are
intended 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 resolve significant issues. In addition, a
significant portion of the environmental review process could be
completed as part of the collaborative process. This pre-filing
collaborative process is comparable to the process the Commission
recently adopted with respect to preparing 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 proposed regulations
would not delete or replace any existing regulations. Finally, the
Commission is inviting comment on whether the existing collaborative
process for hydroelectric license and exemption applications, as well
as the proposed collaborative process for natural gas facilities and
services, should be made mandatory.
II. Background
As part of a comprehensive examination of its regulatory processes,
the Commission's staff reviewed and compared how applications for
energy facilities are currently processed in the Office of Pipeline
Regulation and the Office of Hydropower Licensing.1 The
staff specifically reexamined how it does its work and interacts with
applicants and participants. Although there are statutory and technical
differences between gas facilities and hydropower projects, the staff
found some common elements with respect to review under the National
Environmental Policy Act (NEPA).2 The staff also noted the
growing level of controversy associated with siting gas facilities and
relicensing hydropower projects in dynamic and competitive energy
markets and industries.
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\1\ This comprehensive review is called ``FERC First!''.
\2\ 42 U.S.C. 4321-4307a.
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The Commission believes that its major challenge in this area is to
ensure the development of hydropower projects and natural gas pipeline
and storage projects that are sustainable, i.e., that are economically
viable and protect the environment. Indeed, the Commission believes
that increasing awareness of environmental concerns translates into the
need for greater collaboration between the Commission and all those
concerned including federal and state agencies, local governments,
citizens' groups, landowners, Indian tribes, and the general public.
In October 1997, the Commission adopted a rule authorizing use of a
new process in the hydropower program that embodies cooperation and
consensual approaches to promote solutions to issues before they become
the subject of an adversarial administrative proceeding. These new
regulatory approaches, contained in Order No. 596,3 now
known as the alternative procedures, provide an alternative pre-filing
consultation process to prospective hydropower applicants and
participants. The alternative process is not mandatory. While the
alternative process is a substitute for the standard pre-filing
consultation process required for hydropower applicants,4
and allows for expanded staff involvement, early initiation of the NEPA
process, and the discussion of issues presented by the prospective
applicant's proposal, the Commission did not curtail the rights of
parties to intervene and participate in the hearing on the hydropower
application after it has been filed. The decision to request use of
this alternative approach is left to the prospective applicant, who
must demonstrate that a consensus supporting the use of the alternative
procedure exists among those interested in the proposed project.
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\3\ Final Rule, Regulations for the Licensing of Hydroelectric
Projects (October 29, 1997), Docket No. RM95-16-000, 81 FERC para.
61,103, 62 FR 59802 (November 5, 1997). See 18 CFR 4.34(i).
\4\ See 18 CFR 4.38, 16.8.
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Approximately 20 hydropower license applicants (involving
approximately 32 hydropower projects) are currently using the
alternative procedure. Because of the procedure's inherent adaptability
and potential to address a wide range of issues, including its
flexibility to function properly in very diverse circumstances, the
Commission is proposing to make the benefits of this approach available
to applicants for authorization for natural gas facilities and
services.
The staff has had contacts with a cross-section of the gas industry
and other interested parties to determine the level of interest in
procedures for gas applicants analogous to those promulgated for
hydropower applicants. Some indicated an interest in adapting the
alternative hydropower procedure to the gas authorization process,
while others questioned whether such a process would produce benefits,
such as lower costs and shorter processing times, vis-a-vis the
standard gas application process. The Commission does not know the
answers to these questions, but, based on the experience with the
alternative hydropower procedures, it believes that providing gas
applicants and participants with options is preferable to maintaining
the ``one size fits all'' process.
III. Discussion
Order No. 596 offered applicants for hydroelectric licenses,
amendments and exemptions the option to combine the required pre-filing
consultation process with the required environmental review process,
which is customarily begun only after the filing of an application.
This alternative pre-filing process was intended to encourage
communication among participants, identify, clarify, and resolve
contentious issues, and diminish the time required for Commission
action on an application. The regulations proposed herein would offer
applicants for gas certificate authorizations and abandonment approvals
a similar option, whereby applicants could elect to combine a new pre-
filing consultation process with an environmental review as a means to
simplify and expedite the application procedure. While, unlike the
hydroelectric licensing process, there is now no mandatory pre-filing
consultation for gas applications, we believe that allowing for a more
robust pre-filing process patterned on the alternative hydroelectric
process for consultation and environmental review may provide
significant benefits to all concerned.
Accordingly, we are proposing a voluntary pre-filing consultative
process for applicants seeking to construct and operate natural gas
facilities under sections 3 or 7(c) of the Natural Gas Act
(NGA),5 or to abandon certificated facilities or services
under section 7(b) of the NGA.6/ This optional process would
cover all jurisdictional natural gas facilities, including pipelines,
compressors, meters and regulators, liquefied natural gas terminals,
and replacement facilities where an environmental review is required.
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\5\ 15 U.S.C. Secs. 717b and 717f(c).
\6\ 15 U.S.C. 717f(b).
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This proposal would establish an optional pre-filing consultation
process for potential applicants that would
[[Page 53855]]
combine efforts to address NGA issues with the NEPA review process in a
single pre-filing collaborative process that could also include the
administrative processes associated with the Clean Water Act, the
National Historic Preservation Act, the Endangered Species Act, and
other relevant statutes. We believe that such an option could foster
constructive dialog in a collaborative group consisting of, among
others, the potential applicant and its potential customers, resource
and other regulatory agencies, Indian tribes, local governments, land
owners, citizens' groups, the general public and the Commission's
staff.
We are not proposing to delete or replace any existing regulations;
instead we intend to supplement the existing regulations by offering
potential applicants an opportunity to use the proposed pre-filing
collaborative procedures. 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.
Potential applicants seeking to use this voluntary pre-filing
collaborative process would not be required to obtain express consent
of all potential participants in order to submit an initial request to
use this proposed process. However, in order to employ the proposed
process, an applicant would have to demonstrate that it has made a
reasonable effort to contact all potentially interested entities and
that the weight of opinions expressed by the participating entities
makes it reasonable to conclude that under the circumstances the use of
the collaborative process will be productive. The prospective
applicant's consent to the use of this process is obviously required,
but agreement of everyone interested is not.
With its request, the prospective applicant must also submit a
communications protocol governing how the applicant and participants,
including the Commission's staff, could communicate with each other
during the pre-filing process, and designating how such communications
would be documented and made available to the participants and the
public. Staff involvement during the pre-filing process could aid in
identifying contentious issues, facilitate resolution of disputes among
the participants and advise them whether a proposed action appeared to
be consistent with Commission policy and practice.
The Commission would give public notice in the Federal Register and
the prospective applicant would inform potentially interested entities
of a request to use the collaborative pre-filing process. Interested
entities could comment upon the request and the Commission would
consider such comments in deciding whether to grant or deny the
prospective applicant's request. Authority to grant or deny an
applicant's request to use the pre-filing collaborative process would
be delegated to the Director of the Office of Pipeline Regulation,
comparable to the authority that has already been delegated to the
Director of the Office of Hydropower Licensing. Consistent with the
existing regulations providing for alternative procedures for
applicants for hydropower facilities,7 the decision of the
Director of the Office of Pipeline Regulation on the request would be
final and not subject to interlocutory rehearing or appeal.
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\7\ 18 CFR 4.34(i)(5).
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We propose that all aspects of an application for construction or
abandonment authorization could be considered in this pre-filing
collaborative process. For example, the issues addressed by the
collaborative group could include the need for the proposed project,
competing projects, capacity allocation, the terms and conditions of
service, the rates to be charged for such service, and the effect of
abandonments on existing customers, in addition to the environmental
impact of the proposal. A prospective applicant authorized to use the
pre-filing process would, as appropriate, either prepare a preliminary
draft environmental assessment (EA) or pay a contractor or consultant
selected and supervised by the Commission to prepare a preliminary
draft environmental impact statement (EIS).8
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\8\ See 40 CFR 1506.5 (Council on Environmental Quality's
regulations describing agency responsibility with respect to the
preparation of an environmental assessment and environmental impact
statement).
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We believe that combining the proposed pre-filing consultation and
environmental review into a single pre-filing process could simplify
and expedite the authorization of new gas facilities and services. The
proposed pre-filing process is intended to promote cooperative efforts
between the prospective applicant and other participants. We hope that
an application filed after the proposed collaborative process would be
accompanied by a settlement agreement or offer of settlement. We would
expect that applications made following pre-filing consultation and
environmental review will raise fewer contested issues, will clearly
identify remaining contested issues, and will not require the applicant
to complete extensive additional environmental studies. We believe that
the resulting improvement in the quality and completeness of
applications would permit the Commission to expeditiously resolve
issues in a manner that is supported by affected entities, result in
fewer issues raised on rehearing before the Commission, and reduce the
range of issues that may be subject to litigation in judicial review.
We recognize that in spite of collaborative efforts, some issues
may remain unresolved. Considering that there are sometimes contentious
non-environmental issues that may undermine successful collaboration,
we seek comment on whether the proposed process should only address the
environmental issues associated with a potential application.
With respect to both natural gas authorizations and hydroelectric
licensing, the Commission invites comment on whether it would be
appropriate to extend the collaborative pre-filing process beyond the
stage of preparing a preliminary draft EIS (18 CFR Part 4). For
instance, would it be appropriate in this process for the Commission
staff to issue a draft EIS and for the participants in the process to
review the comments on the draft EIS and prepare either a final EIS or
a preliminary draft of a final EIS? Should the Commission staff be
permitted to issue the draft EIS (or issue a preliminary draft of the
final EIS) and invite comment on it prior to the filing of the
application, without first issuing a notice inviting interested persons
to intervene as parties to a formal proceeding? 9
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\9\ The collaboratively-prepared EIS would be filed with the
Commission as part of the application package. The ultimate
hydropower licensing or gas authorization decision would be made by
the Commission.
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The Commission also invites comment on whether any limitations of
time should be placed on the collaborative process. If so, what
limitations might be appropriate? We invite comment on how best to
ensure that all of the participants in the process have a full and fair
opportunity to participate in a manner that facilitates cooperative
progress within a reasonable time frame.
Finally, the Commission seeks comment on whether the voluntary pre-
filing collaborative process proposed herein with respect to
applications for authorizations for gas facilities and services, as
well as the voluntary alternative pre-filing process currently in
effect with respect to applicants for the licensing of hydroelectric
projects
[[Page 53856]]
pursuant to Order No. 596, should be made mandatory for all applicants
for such gas and/or hydroelectric authority. We invite the commenters
to describe the advantages and disadvantages they perceive in requiring
that an applicant for authorization for energy facilities and services
first complete a combined consultation and environmental review process
before filing an application. If the Commission were to adopt such a
requirement, how would it work, especially in cases where no consensus
exists among the participants that investing in a collaborative process
would be a wise use of limited resources? If compelling an applicant to
successfully complete a pre-filing collaboration is considered
impractical, should the Commission instead mandate that all applicants
make good faith efforts to undertake a pre-filing collaboration? Should
the Commission then reject applications that do not document adequate
good faith efforts to engage in the pre-filing process or do not
justify the failure of the applicant's efforts?
While the proposed collaborative procedures may not be appropriate
for every applicant or project, the Commission wants to extend the
availability of this option to proposed gas facilities and services in
light of the projected number of future gas certificate filings. The
Commission understands that growing demand in New England, the Mid-
Atlantic, and the Midwest will continue to lead to applications for
major pipeline extensions and new pipelines to serve these regions. The
Commission also expects to receive applications for storage development
and liquefied natural gas facilities to be used for peaking capability
and supply flexibility. As the national pipeline grid ages, the
Commission anticipates a significant number of applications for
replacement facilities.
In short, potential applicants for authorizations for gas
facilities and services who are given permission to use collaborative
pre-filing procedures would, with the support and assistance of those
participating, conduct necessary and appropriate scientific studies and
prepare a preliminary draft environmental assessment or preliminary
draft environmental impact statement, before filing the application.
Optimally, this procedure could result in the applicant and
participants agreeing on a partial or complete offer of settlement, a
joint stipulation of contested issues, or documentation of all issues
(both resolved and unresolved). On the other hand, applicants for NGA
authorizations could proceed under the standard process, where the NEPA
review and staff involvement in settlement efforts would begin only
after the application has been filed with the Commission.
IV. Environmental Analysis
Commission regulations describe the circumstances where preparation
of an environmental assessment or an environmental impact statement
will be required.10 The Commission has categorically
excluded certain actions from this requirement as not having a
significant effect on the human environment.11 No
environmental consideration is necessary for the promulgation of a rule
that is clarifying, corrective, or procedural, or that does not
substantially change the effect of legislation or regulations being
amended.12
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\10\ Regulations Implementing National Environmental Policy Act,
52 FR 47,897 (Dec. 17, 1987), codified at 18 CFR Part 380.
\11\ 18 CFR 380.4(a)(2)(ii).
\12\ 18 CFR 380.4.
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This proposed rule is procedural in nature. It proposes 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 proposed in the rule.
V. Regulatory Flexibility Certification
The Regulatory Flexibility Act of 1980 (RFA) 13
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 proposed regulations, if promulgated, will not have
a significant economic impact on a substantial number of small
entities.
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\13\ 5 U.S.C. Secs. 601-612.
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The procedures proposed herein 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 proposed herein would be optional, would not alter or replace
the procedures currently prescribed in our regulations, and would not
be available unless it is the consensus of the persons interested in
the proceeding, as discussed herein, to use that process. Under this
approach, each small entity would be able to evaluate for itself
whether the pre-filing process would be beneficial or burdensome, and
could oppose its adoption if the proposed process appeared to be more
burdensome than beneficial. Under these circumstances, the economic
impact of the proposed rule would be either neutral or beneficial to
the small entities affected by it.
VI. Information Collection Statement
The regulations proposed in this Notice would impose reporting
burdens only on those applicants that voluntarily choose to use the
pre-filing collaborative process, and would 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 proposed process do not involve filings with
the Commission, but would 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 save
on litigation and other costs incurred to pursue its application using
only the standard procedures.
The Commission invites comments on the need for and utility of this
information, the accuracy of the projected burden estimates, ways to
enhance the quality, utility, and clarity of the information to be
collected, and suggestions for minimizing the respondents' burden.
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
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:
[[Page 53857]]
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Burden (hours of
Process effort)
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(1) Contact interested entities..................... 80
(2) Prepare and submit request, including 80
communications protocol.
(3) Prepare and distribute scoping and hold related 32
meetings.
(4) Develop agenda and other documents, including 802
minutes, 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 progress reports and make 84
other required Commission filings.
(7) Maintain a complete record of the pre-filing 208
consultation proceedings that would be open to the
public.
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Total........................................... 1374
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It is estimated 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
1374 hours.
Office of Management and Budget (OMB) 14 approval is
required for certain information collection requirements imposed by
agency rules. Accordingly, pursuant to OMB regulations, the Commission
is providing notice of its proposed information collections to OMB for
review under Section 3507(d) of the Paperwork Reduction Act of
1995.15. 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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\14\ 5 CFR 1320.11.
\15\ 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 proposed rule will revise the
Commission's regulations contained in 18 CFR parts 153 and 157.
Implementation of the proposed 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, phone (202) 395-3087, fax: (202)
395-7285].
VII. Comment Procedure and Technical Conferences
The Commission invites interested persons to submit written
comments on the matters proposed in this notice. An original and 14
copies of the written comments must be filed with the Commission no
later than December 7, 1998 for comments and January 5, 1999 for reply
comments. Comments should be submitted to the Office of the Secretary,
Federal Energy Regulatory Commission, 888 First Street, N.E.,
Washington, D.C. 20426, and should refer to Docket No. RM98-16-000.
Commenters also can submit comments on computer diskette in WordPerfect
6.1 or lower format or in ASCII format, with the name of the filer and
Docket No. RM98-16-000 on the outside of the diskette. All comments
will be placed in the public files of the Commission and will be
available for inspection at the Commission's Public Reference Room, at
888 First Street, N.E., Washington, D.C. 20426, during regular business
hours.
In order to provide some measure of interaction and dialogue in the
comment process, for the benefit of both the commenters and the
Commission, the Commission intends for its staff to hold technical
conferences on the proposed regulations, in Washington, D.C., Houston,
Texas, and Chicago, Illinois, approximately 30 days from the date of
publication of this Notice in the Federal Register.
List of Subjects
18 CFR Part 4
Administrative practice and procedure, Electric power, Reporting
and recordkeeping requirements.
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.
[[Page 53858]]
By direction of the Commission.
David P. Boergers,
Secretary.
In addition to comments invited on possible changes affecting 18
CFR part 4 in the Supplementary Information section, the Commission
proposes to amend Parts 153, 157 and 375 of Chapter I, Title 18, Code
of Federal Regulations, as set forth below.
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 subpart B, 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 pre-filing collaborative procedures for certificate
applications in Sec. 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 157.22 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) The goals of the pre-filing collaborative procedures are to:
(1) Combine into a single pre-filing collaborative process, the
environmental review processes under the National Environmental Policy
Act, and the administrative processes associated with the Clean Water
Act, the National Historic Preservation Act, the Endangered Species
Act, the Coastal Zone Management Act, and other statutes;
(2) Facilitate greater participation by, and improve communication
among, the prospective applicant, resource agencies, Indian tribes,
affected landowners, customers, the public, and Commission staff in a
flexible pre-filing collaborative process tailored to the circumstances
of each case;
(3) Allow for the preparation of a preliminary draft environmental
assessment by an applicant or its contractor or consultant, or of a
preliminary draft environmental impact statement by a contractor or
consultant selected and supervised by the Commission and funded by the
applicant;
(4) Promote cooperative efforts by the potential applicant and
interested entities and encourage them to share information about
resource impacts and mitigation and enhancement proposals and to narrow
any areas of disagreement and reach agreement or settlement of the
issues raised by the certificate or abandonment application; and
(5) Facilitate an orderly and expeditious review by the Commission
of an agreement or offer of settlement regarding a certificate or
abandonment proposal.
(c) 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 resource agencies, Indian tribes, citizens' groups, landowners,
customers, and others affected by the applicant's proposal 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 the day thereafter send a copy of the request, along with the
docket number of the request and instructions on how to submit comments
to the Commission, to all affected resource agencies, Indian tribes,
citizens' groups, landowners, customers, and other entities.
(d) 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.
(e) 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. 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.
(f) 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. The mailing list
must contain the names and addresses of landowners affected by the
project.
(2) Every two months, the applicant shall file with the Commission
a report summarizing the progress made in the pre-filing collaborative
process, referencing the public file maintained by the applicant as
provided in Sec. 157.22(f)(5) where additional information on that
process can be obtained. Summaries or minutes of meetings held as part
of the collaborative process may be used to satisfy this filing
requirement.
[[Page 53859]]
(3) 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.
(4) All filings with the Commission under this section shall be
made in the manner prescribed in Secs. 157.6(a), 157.14(a) and 385.2011
of this chapter. The applicant shall send a copy of these filings to
each participant that requests a copy.
(5) 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.
(6) An applicant authorized to use the pre-filing collaborative
procedures 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.
(7) 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.
(8) 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.
(9) Any potential applicant, resource agency, Indian tribe,
citizens' group, or other entity participating in the pre-filing
collaborative process may file a request with the Commission to resolve
a dispute concerning the process (including a dispute over required
studies), but only after reasonable efforts have been made to resolve
the dispute with other participants in the process. No such request
will be accepted for filing unless the entity submitting it certifies
that the request has been served on all other participants. The request
must document what efforts have been made to resolve the dispute.
(g) 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 be productive, the participant may petition the Commission for an
order directing the use by the potential applicant of appropriate
procedures to complete its application. 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.
(h) 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.
PART 375--THE COMMISSION
3. 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.
4. 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. 98-26720 Filed 10-6-98; 8:45 am]
BILLING CODE 6717-01-P
