UNITED STATES OF AMERICA 

FEDERAL ENERGY REGULATORY COMMISSION 

18 CFR Parts 153, 157, 375, and 385 

(Docket No. RM06-1-000; Order No. 687) 

 

Regulations Implementing the Energy Policy Act of 2005; 

Coordinating the Processing of Federal Authorizations for Applications under Sections 3 

and 7 of the Natural Gas Act and Maintaining a Complete Consolidated Record 

 (October 19, 2006) 

AGENCY: Federal Energy Regulatory Commission. 

ACTION: Final Rule. 

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

 amends 

section 15 of the Natural Gas Act (NGA)2

 to provide the Federal Energy Regulatory 

Commission (Commission) with additional authority to coordinate the processing of 

authorizations required under federal law for proposed natural gas projects subject to 

NGA sections 3 and 7 and to maintain a complete consolidated record of decisions with 

respect to such federal authorizations. This Final Rule promulgates regulations 

governing its exercise of this authority whereby the Commission will establish a schedule 

for the completion of reviews of requests for authorizations necessary for a proposed 

project and compile a consolidated record to be used in the event of review of actions by 

 1

 Pub. L. No. 109-58, 119 Stat. 594 (2005). 

2

 15 U.S.C. 717n (2005). 
Docket No. RM06-1-000 -2- 

the Commission and other agencies in responding to requests for authorizations necessary 

for a proposed project. 

EFFECTIVE DATE: The rule will become effective [insert date 60 days after 

publication in the FEDERAL REGISTER].

FOR FURTHER INFORMATION CONTACT: 

Gordon Wagner 

Office of the General Counsel 

Federal Energy Regulatory Commission 

888 First Street, N.E. 

Washington, D.C. 20426 

gordon.wagner@ferc.gov 

(202) 502-8947 

Lonnie Lister 

Office of Energy Projects 

Federal Energy Regulatory Commission 

888 First Street, N.E. 

Washington, D.C. 20426 

lonnie.lister@ferc.gov 

(202) 502-8587 

William O. Blome 

Office of the General Counsel 

Federal Energy Regulatory Commission 

888 First Street, N.E. 

Washington, D.C. 20426 

(202) 502-8462 

SUPLEMENTARY INFORMATION: 
UNITED STATES OF AMERICA 

FEDERAL ENERGY REGULATORY COMMISSION 

Before Commissioners: Joseph T. Kelliher, Chairman; 

 Suedeen G. Kelly, Marc Spitzer, 

 Philip D. Moeller, and Jon Wellinghoff. 

Regulations Implementing the Energy Docket No. RM06-1-000 

Policy Act of 2005; Coordinating the 

Processing of Federal Authorizations for 

Applications under Sections 3 and 7 of the 

Natural Gas Act and Maintaining a 

Complete Consolidated Record 

ORDER NO. 687 

FINAL RULE 

(October 19, 2006) 

1. On May 18, 2006, the Commission issued a Notice of Proposed Rulemaking 

(NOPR) in Docket No. RM06-1-000,1

 requesting comments on proposed regulations to 

implement section 313 of the Energy Policy Act of 2005 (EPAct 2005).2

 EPAct 2005 

section 313 amends the Natural Gas Act (NGA) to provide the Commission with the 

authority (1) to set a schedule for federal agencies, and state agencies acting under 

federally delegated authority, to reach a final decision on requests for federal 

authorizations necessary for proposed NGA section 3 or 7 gas projects and (2) to 

maintain a complete consolidated record of all decisions and actions by the Commission 

 1

 71 FR 30632 (May 30 2006); FERC Stats. & Regs. ¶ 32,601 (2006); 115 FERC 

¶ 61,203 (2006). 

2

 Pub. L. No. 109-58, 119 Stat. 594 (2005). 
Docket No. RM06-1-000 - 2 -

and other agencies with respect to such authorizations. In this Final Rule, the 

Commission considers comments submitted in response to the NOPR, and as a result, 

makes certain modifications to the proposed regulatory revisions. 

Background

2. The Commission authorizes the construction and operation of proposed natural gas 

projects under NGA sections 3 and 7.3

 However, the Commission does not have 

jurisdiction over every aspect of each natural gas project. Hence, for a natural gas project 

to go forward, in addition to Commission approval, several different agencies must 

typically reach favorable findings regarding other aspects of the project. To better 

coordinate the activities of separate agencies with varying responsibilities over proposed 

natural gas projects, EPAct 2005 modified the Commission’s role. Section 313 of EPAct 

2005 directs the Commission (1) to establish a schedule for agencies to review requests 

for federal authorizations required for a project4

 and (2) to compile a record of each 

 3

 Under NGA section 7, the Commission has jurisdiction over the transportation 

or sale of natural gas in interstate commerce and the construction, acquisition, operation, 

and abandonment of facilities to transport natural gas in interstate commerce. Under 

NGA section 3(e), the Commission has exclusive authority to approve or deny an 

application for the siting, construction, expansion, or operation of a liquefied natural gas 

(LNG) terminal. The Secretary of the Department of Energy (DOE) has delegated to the 

Commission the authority under NGA section 3 to approve or disapprove applications for 

the siting, construction, and operation of facilities to import or export natural gas. The 

most recent delegation is in Delegation Order No. 00-004-00A, effective May 16, 2006. 

4

 EPAct 2005 section 313 describes “federal authorizations” as decisions or 

actions by a federal agency or official, “or State administrative agency or officer acting 

under delegated Federal authority,” granting or denying requests for permits, certificates, 

opinions, approvals, and other authorizations. The United States Environmental 

 (continued...) 
Docket No. RM06-1-000 - 3 -

agency’s decision, together with the record of the Commission’s decision, to serve as a 

consolidated record for the purpose of appeal, including judicial review. 

3. On November 17, 2005, the Commission issued an order initially implementing the 

authority conferred by EPAct 20055 and delegating to the Director of OEP the authority 

to set schedules for agencies to act on requests for federal authorizations necessary for 

natural gas projects to ensure such requests are processed expeditiously. In that order, the 

Commission stated a subsequent rulemaking would codify the pertinent provisions of 

EPAct 2005. To that end, the May 2006 NOPR set forth proposed regulatory revisions. 

 

Protection Agency (EPA) asks what types of state actions would qualify as being under 

delegated federal authority. The Commission finds that a state action qualifies as an 

action under delegated federal authority if it is an action that (1) a state entity is 

permitted, approved, or directed to take under federal law and (2) provides the basis for a 

reasoned decision on a request for a federal authorization. The United States Department 

of Commerce, National Oceanic and Atmospheric Administration, National Marine 

Fisheries Service (NMFS) asks whether a federal authorization would include 

recommendations or biological opinions issued subsequent to consultations under the 

Magnuson-Stevens Fishery Conservation and Management Act and Endangered Species 

Act (ESA). To the extent recommendations and opinions are necessary for a federal 

agency, or state agency acting under federally delegated authority, to reach a decision on 

a request for a federal authorization that is needed for a proposed NGA section 3 or 7 

project to go forward, the Commission interprets EPAct 2005’s mandate as encompassing 

such recommendations and opinions as “federal authorizations.” 

5

 Coordinated Processing of NGA Section 3 and 7 Proceedings, 113 FERC 

¶ 61,170 (2005). This Final Rule codifies this delegation of authority by revising 

§ 375.308, Delegations to the Director of the Office of Energy Projects (OEP), to add a 

new § 375.308(bb), which delegates authority to the Director of OEP to establish 

schedules, consistent with federal law, for agencies to complete their analysis and 

decision making processes and issue decisions on requests for federal authorizations 

necessary for natural gas projects. 
Docket No. RM06-1-000 - 4 -

In this Final Rule, the Commission responds to comments concerning the NOPR, and 

adopts further regulatory revisions to implement its new responsibilities under EPAct 

2005. 

Notice and Comment

4. Notice of the NOPR was published in the Federal Register on May 30, 2006.6

 

Comments on the NOPR were filed by Baker Botts, L.L.P. (Baker Botts); Cheniere 

Energy, Inc. (Cheniere); City of Fall River, Massachusetts; Coastal States Organization; 

Conservation Law Foundation; Delaware Department of Natural Resources and 

Environmental Control, Division of Soil & Water Conservation (Delaware DNR); U. S. 

Department of the Army Corps of Engineers (Army COE); Dominion Transmission, Inc., 

Dominion Cove Point LNG, LP, and Dominion South Pipeline Company, LP 

(Dominion); Duke Energy Transmission, LLC (Duke); United States Environmental 

Protection Agency (EPA); Interstate Natural Gas Association of America (INGAA); 

United States Department of the Interior (Interior); Islander East Pipeline Company, 

L.L.C. (Islander East); Mr. Mark Mendelson; Massachusetts Office of the Attorney 

General; Massachusetts Executive Office of Environmental Affairs (Massachusetts 

EOEA); New Jersey Department of Environmental Protection (New Jersey DEP); 

Columbia Gas Transmission Corporation, Columbia Gulf Transmission Company, 

Crossroads Pipeline Company, Granite State Gas Transmission, Inc., and Central 

Kentucky Transmission Company (collectively NiSource); Oregon Coastal Management 

 6

 71 FR 30632 (May 30, 2006). 
Docket No. RM06-1-000 - 5 -

Program; United States Department of Commerce, National Oceanic and Atmospheric 

Administration, National Marine Fisheries Service (NMFS); and Williston Basin 

Interstate Pipeline Company (Williston). 

Discussion

5. The comments raise objections to various aspects of the proposed regulatory 

revisions. In response, various aspects of the NOPR’s proposed revisions are modified, 

as discussed below. 

 Electronic Submission of Information

6. There are several different events that trigger the obligation on the part of other 

agencies and officials to submit information to the Commission. In the NOPR, the 

Commission proposed all such information be submitted electronically, but requested that 

affected agencies and officials comment on whether electronic submission could prove 

impractical. Several agencies stated that they are not yet prepared to transmit information 

by electronic means. Consequently, to avoid any undue hardship, while stressing its 

preference to receive information via electronic means, the Commission removes the 

requirement to submit information by electronic means. 

 Coordinating Federal Authorizations

 When to Submit Requests for Federal Authorizations

7. Proposed §§ 153.8 and 157.14 specify that an application filed with the 

Commission for a natural gas project under NGA section 3 or 7 must include: 

A statement identifying each Federal authorization that the proposal will 

require; the Federal agency or officer, or State agency or officer acting 
Docket No. RM06-1-000 - 6 -

pursuant to delegated Federal authority, which will issue each authorization; 

the date each request for authorization was submitted; and the date by which 

final action on each Federal authorization has been requested or is expected. 

The NOPR observed that if an application does not include this proposed new 

information statement, the Commission may deem the application incomplete. 

8. Several commenters explain that it is impractical, if not impossible, to submit 

applications for all federal authorizations before or contemporaneously with the project 

application filed with the Commission. These commenters propose instead that a project 

sponsor be permitted to file an application with the Commission first; list the 

authorizations necessary for the new project; identify those authorizations for which 

applications have already been submitted and the dates upon which they were submitted; 

and then state the dates by which any outstanding authorization requests will be 

submitted. 

9. The Commission observes that most applications to construct major new gas 

projects are filed with the Commission after the project sponsor has participated in the 

Commission’s prefiling process. This prefiling period affords a project sponsor, 

Commission staff, and staff from other agencies the opportunity to identify which federal 

authorizations will be needed for a project, and ample time for the project sponsor to 

prepare requests for related federal authorizations in advance of filing an application with 

the Commission 7 Thus, the prefiling process can establish coordination among the 

 7

 The NOPR noted that project sponsors that have made use of the prefiling period 

and process to prepare and submit requests for federal authorizations to agencies before 

 (continued...) 
Docket No. RM06-1-000 - 7 -

agencies responsible for reviewing a project proposal and diminish the chance that the 

Commission might find an application to be incomplete. 

10. The Commission nevertheless acknowledges that there may be circumstances that 

preclude a project sponsor from presenting all requests for necessary federal 

authorizations by the time it files an application with the Commission.8

 Therefore, 

§§ 153.8 and 157.14 of the Commission’s regulations will be modified to provide for a 

sponsor to explain why requests for federal authorizations remain outstanding and state 

 

an NGA application is filed with the Commission have been able to compress the time 

needed to obtain Commission authorization. In large part, this is because completion of 

the Commission’s assessment of an application often rests on other agencies reaching 

favorable determinations on separate authorization requests. Dominion and Duke are 

concerned that the new filing requirement might force a project sponsor to devote undue 

resources to preparing to submit requests for related federal authorizations at the same 

time as an NGA application. The Commission believes the prefiling process can 

minimize the resources needed by a project sponsor by spacing out its submission of 

authorization requests over a period of several months. 

 8

 Cheniere, for example, posits that an agency may refuse to accept a request for a 

federal authorization “through no fault of the applicant.” Were this to occur, the project 

sponsor should inform the Commission, which can then inquire as to the circumstances. 

NMFS points out that with respect to certain federal authorizations, such as an 

affirmation of compliance with the Endangered Species Act or the National Historic 

Preservation Act, the project sponsor is not in a position to submit an authorization 

request, since a request to initiate consultation with the responsible agency must be 

submitted by the Commission. The Commission notes this does not relieve the project 

sponsor of its obligation, as described in Part 380 of the existing regulations, to develop 

and submit all necessary technical information. Baker Botts and INGAA call attention to 

difficulties that may be presented by compelling a project sponsor to file a permit under 

the Clean Air Act contemporaneously with an NGA section 3 or 7 application. Such 

difficulties should be alleviated by the modifications that this Final Rule makes to the 

filing requirements as proposed in the NOPR. Provided a project sponsor presents good 

cause for not submitting a particular authorization request by the time an application is 

submitted, the Commission stands ready to accept the application. 
Docket No. RM06-1-000 - 8 -

anticipated dates for submitting such requests. A project sponsor will now be required to 

state “the date each request for authorization was submitted; why any request has not 

been submitted and the date submission is expected; and the date by which final action on 

each Federal authorization has been requested or is expected.” For requests that remain 

outstanding at the time an application is filed, the Commission will review the reasons 

given, the projected dates of submission, and an applicant’s interactions with the 

agencies. The Commission may then accept the application for consideration, and based 

on the state of documents and studies needed to support prospective authorization 

requests, accept the projected submission dates as a basis for establishing a schedule. 

 Determining a Schedule for Federal Authorizations

11. Initially, upon receiving an application, the Commission issues a notice “within 10 

days of filing,” in accordance with § 157.9 of its regulations,9

 or rejects the application in 

accordance with § 157.8 of its regulations. In issuing a notice of an application, the 

Commission, or the Director of OEP acting pursuant to delegated authority, may also 

declare a schedule for final decisions on outstanding requests for federal authorizations. 

When a schedule is established, it will comply with agencies’ applicable schedules 

established by federal law.10 The NOPR stated that in the event the Commission or the 

 9

 Section 157.9 is revised by this Final Rule to state that in calculating this 

deadline, only days during which the Commission is open for business are counted. 

10 In response to a query by NMFS, the Commission states it interprets the 

reference in EPAct 2005 section 313(c)(1)(B) to “federal law” to consist of schedules 

specified either in the United States Code or in the Code of Federal Regulations. 
Docket No. RM06-1-000 - 9 -

Director of OEP does not set a schedule for a particular project in the notice or at a later 

date, the default deadline for decisions by those agencies without applicable schedules 

established by federal law will be no later than 90 days after the issuance of the 

Commission’s final environmental document on the proposed project, or if no 

environmental document is issued, then no later than 90 days after issuance of a final 

order. 

12. Commenters point out that if no schedule is included in the notice of an 

application, agencies are left to wonder whether a project-specific schedule will be issued 

at some later date, or whether silence indicates the default deadline applies. The 

Commission acknowledges the desirability of informing agencies in a timely manner of 

the schedule that will apply in each case. Accordingly, the Commission will adopt a 

different procedural approach, as described below. 

13. The NOPR proposed requiring that agency action on authorization requests be 

completed within 90 days of the issuance of the Commission’s final environmental 

document in a proceeding, or if an environmental document were not prepared, then 

within 90 days of the issuance of a final Commission order. Previously, the Commission 

has not always issued its environmental assessment (EA) at the time of its completion. 

Going forward, the Commission commits to issue its final environmental document in 

every proceeding by placing it in the public record. In addition, going forward, the 

Commission commits to issuing a notice within 90 days of the notice of an application 

describing the schedule that will apply to the environmental review process conducted by 
Docket No. RM06-1-000 - 10 -

the Commission to ensure compliance with the National Environmental Policy Act of 

1969 (NEPA).11 This notice of the schedule for the environmental review will state, 

among other milestones, the anticipated date for the Commission’s completion of its EA 

or final environmental impact statement (EIS).12 This NEPA notice will thus serve to 

inform agencies without a schedule established by federal law of the projected date by 

which they are to reach a decision on requested authorizations, i.e., within 90 days after 

the anticipated issuance of the Commission’s EA or final EIS. Section 157.9 is revised 

accordingly. 

14. Under this approach, there is no longer any distinction – as was discussed in the 

NOPR – between a “default” and a “project-specific” schedule. For agencies without a 

schedule established by federal law, the deadline for a final decision will follow from the 

date the Commission issues its final environmental document by placing it in the public 

record, with the anticipated issuance date stated in the NEPA notice. However, this 

anticipated issuance date is subject to change. As explained in the NOPR, during the 

course of considering an application or a request for a federal authorization, unanticipated 

issues and circumstances can arise and affect the time needed to complete the review. 

 11 42 U.S.C. 4321-4347 (2005). 

12 It has been the Commission’s experience that in processing applications for 

certain minor and routine projects, the Commission’s assessment, including its NEPA 

review, can often be completed within 90 days. For such projects, the Commission will 

either include a notice of the environmental schedule in conjunction with the notice of the 

application (i.e., the initial notice issued within 10 days of an application’s being filed 

with the Commission), or will issue a separate notice of the environmental schedule 

shortly thereafter. 
Docket No. RM06-1-000 - 11 -

The Commission will monitor such changed circumstances, and may find it appropriate 

to revise the milestones set out in its initial schedule for its environmental review.13 If 

the Commission does so, it will issue a notice updating the milestones associated with its 

environmental review process. Any revision that alters the date that the Commission 

anticipates issuing its EA or final EIS will correspondingly shift the projected 90-day 

deadline for agencies without a schedule established by federal law to reach a final 

decision. 

15. As described above, the Commission will now issue a notice describing the 

schedule for its environmental review as a part of, or within 90 days of, its initial notice 

of an application. Therefore, agencies will know, relatively early in the processing of all 

applications, where they stand with respect to due dates for their final decisions on 

requests for federal authorizations.14

 13 This flexibility should alleviate the concern of commenters such as the City of 

Fall River, Massachusetts, regarding situations where apparently straightforward issues 

are discovered during the course of analysis to be more complex and time-consuming 

than originally anticipated. 

14 The New Jersey DEP recommends that each state agency reviewing a request 

for a federal authorization be provided with formal notice of the date the Commission 

issues a final environmental document, arguing that “[w]ithout formal notice . . . a State 

agency will not know that the 90 day review period for a decision has begun.” New 

Jersey DEP’s Comments at 1 (July 28, 2006). In view of the Commission commitment to 

issue a formal notice of the schedule for the environmental review, agencies should have 

adequate notice of the anticipated start date of the last 90 days of the review period 

applicable to those agencies without a schedule set by federal law. State and federal 

agencies and officers are urged to make use of the Commission’s eSubscription service as 

a means to monitor documents submitted in a proceeding, updates, and the date of 

issuance of the Commission’s EA or final EIS. 
Docket No. RM06-1-000 - 12 -

16. Commenters expressed the concern that the Commission could reach a decision on 

a schedule for agency action without first considering agency comments on authorization 

requests. As discussed below, agencies’ reports on authorization requests will still be due 

within 30 days of the receipt of such requests. In addition, it is expected that project 

sponsors will submit as many requests for necessary federal authorizations as possible by 

the time an application is filed with the Commission. Therefore, in most cases the 

Commission will have approximately 60 days to consider agency comments in advance 

of issuing the notice of its schedule for the environmental review, enabling the 

Commission to review agencies’ input in setting the milestones for the completion of the 

Commission’s environmental review.15

17. The Conservation Law Foundation requests doubling the 90 days following the 

issuance of the Commission’s final environmental document to 180 days, whereas 

INGAA and interstate pipelines promote reducing the time to 30 days. The Conservation 

Law Foundation points out that a final decision on a request for a necessary federal 

 15 As noted above, in minor and routine cases where issues that might complicate 

agencies’ reviews are unlikely to arise, the Commission may issue notice of its 

environmental schedule in its initial notice of the filing of an application or shortly 

thereafter. However, if concerns regarding authorization requests are subsequently raised 

in agency reports to the Commission, the Commission would then reconsider the given 

time frames. In determining whether a proposal qualifies as minor and routine, and 

thereby suitable for processing on an accelerated schedule, EPA recommends the 

Commission first consult with the other agencies that will be involved. The Commission 

expects such projects to be readily identifiable or identified in the course of a prefiling 

consultation. The Commission will not identify a proposal as a candidate for accelerated 

processing unless it is confident of consensus among agencies that it merits such 

treatment. An agency may object to any schedule set by the Commission, and the 

Commission will reassess the grounds for its determination. 
Docket No. RM06-1-000 - 13 -

authorization may not be reached within 90 days of the issuance of the EA or EIS. The 

Commission acknowledges that although infrequent, this can occur. However, the 

Commission expects that project sponsors’ increasing use of the Commission’s prefiling 

consultation process, in conjunction with the regulatory revisions instituted herein, will 

eliminate such delayed authorization decisions.16 Further, the Commission believes that 

providing the 180 days requested would be incompatible with the EPAct 2005 mandate to 

“ensure expeditious completion” of NGA section 3 and 7 proceedings.17 On the other 

hand, the Commission finds no reason to adopt a 30-day requirement. Comments in 

favor advocate harmonizing the amount of time provided for agencies to act with the 30 

days from issuance of a Commission order currently provided for filing a request for 

rehearing or accepting a certificate. The Commission sees no need to do so, as there is no 

evidence that project sponsors are currently hindered in reaching decisions on whether to 

seek rehearing of the Commission’s orders or accept a certificate when other agencies 

take more than 30 days after an order to complete action on authorization requests. The 

 16 The Commission notes that for the most part, instances in which final decisions 

on requests for necessary federal authorizations have not been reached within the 90-day 

time frame designated herein, have involved authorizations for which a schedule for 

agency action is established by federal law, e.g., a Coastal Zone Management Act 

(CZMA) consistency determination or a water quality certification under section 401 of 

the Clean Water Act (CWA). Nothing in this Final Rule will alter schedules set by 

federal law. 

17 EPAct 2005 section 313(c)(1)(A) (2005). 
Docket No. RM06-1-000 - 14 -

Commission believes that the 90 days provided strikes an appropriate balance between 

providing adequate time for agencies’ deliberation and avoiding delay to project 

sponsors. 

18. The NOPR observed that: 

In some cases – for example, when there is a demonstrated need to have a 

new natural gas project in service by a certain date – the Commission may 

set deadlines that are shorter than the maximum times permitted under 

federal law. In such cases, the Commission recognizes that compliance 

with its specified deadlines would be voluntary for agencies with deadlines 

determined by federal law.18

19. Several commenters contend this observation conflicts with federal law. In setting 

a schedule for agencies to conclude their reviews of requests for federal authorization, the 

Commission has no ability to contract or expand a schedule established by federal law. 

Consequently, there can be no conflict between a schedule set by the Commission and a 

schedule set by federal law.19 The Commission’s observation in the NOPR was no more 

than an acknowledgment of current practice. Agencies frequently complete their review 

of certain project proposals – most often for modest and uncontroversial facilities – well 

 18 71 FR 30632 at 30635 (May 30 2006); FERC Stats. & Regs. ¶ 32,601 at 32,558 

(2006); 115 FERC ¶ 61,203 at P 17 (2006). 

19 Baker Botts raises a related issue in requesting clarification that an agency 

presented with an authorization request must not be permitted to await the outcome of 

another agency’s action prior to commencing its own review. While such an approach 

might be viewed as contrary to EPAct 2005’s expressed intent to expedite the review 

process for proposed gas projects, provided the agency in waiting is able to meet its 

deadline to reach a final decision – be it established by federal law or by the Commission 

– there would not necessarily be cause to seek to compel the recalcitrant agency to 

commence its review sooner. 
Docket No. RM06-1-000 - 15 -

in advance of deadlines allotted by federal law. The NOPR stated the aspiration that 

agencies might continue to do so, recognizing that in exercising its new authority to set 

schedules, the Commission can only encourage agencies to act in advance of deadlines 

set by federal law, it cannot compel them to do so. 

20. The Army COE states that the deadlines established by the Commission for final 

agency action will be “voluntary and non-binding.”20 This would be the case if, as 

discussed above, the schedule set by the Commission calling for a shorter time frame did 

not meet the EPAct 2005 requirement that it “comply with applicable schedules 

established by Federal law.”21 However, if an agency without a schedule established by 

federal law fails to meet a deadline set by the Commission, this “failure of the agency to 

take action . . . in accordance with the Commission schedule established pursuant to 

section 15(c) shall be considered inconsistent with Federal Law,” and as a result, can be 

brought to the attention of the United States Court of Appeals, which can “remand the 

proceeding to the agency to take appropriate action consistent with the order of the 

Court” by the “schedule and deadline for the agency to act on remand” that will be set by 

the court.22 

 20 Army COE’s Comments at 3 (July 31, 2006). 

21 EPAct 2005 section 313(c)(1)(B) (2005). 

22 EPAct 2005 section 313(d)(2) and (3). Note this described civil action for the 

review of an agency’s alleged failure to act on a requested authorization does not apply to 

CZMA determinations, since the Department of Commerce, not a federal court, is the 

body to review a failure to act on, or the outcome of, a CZMA request. This section of 

 (continued...) 
Docket No. RM06-1-000 - 16 -

 Informing the Commission upon Receipt of 

 an Authorization Request

21. New § 385.2013 specifies that within 30 days of receiving an authorization 

request, an agency must inform the Commission of: (1) whether the agency deems the 

application to be ready for processing and, if not, what additional information or 

materials will be necessary to assess the merits of the request; (2) the time the agency will 

allot the applicant to provide the necessary additional information or materials; (3) what, 

if any, studies will be necessary in order to evaluate the request; (4) the anticipated 

effective date of the agency’s decision; and (5) if applicable, the schedule set forth by 

federal law for the agency to act. Further, if an agency asks for additional information, 

the agency is to provide the Commission with a copy of its data request. 23

22. Commenters claim that 30 days is an unreasonably short time to be able to render 

a meaningful assessment of an authorization request. The Commission recognizes that 

30 days will often be insufficient for agencies to reach definitive conclusions on each of 

 

EPAct 2005 was recently discussed and applied in Islander East Pipeline Co. LLC v. 

Connecticut Department of Environmental Protection, Docket No. 05-4139-ag (2d Cir. 

Oct. 5, 2006); the court found a state agency acting under delegated federal authority had 

not conducted a complete and reasoned review of a request for a federal authorization, 

and required the state agency to either do so within 75 days or abdicate its delegated 

federal authority. 

23 This establishes the minimum information required of an agency. EPA, Duke, 

and Islander East suggest a more collaborative approach to establish a schedule. To this 

end, the Commission invites agencies to go beyond the requisite minimum and provide 

additional information, which the Commission will consider in exercising its scheduling 

responsibilities. Further, in determining a schedule appropriate to a particular 

application, Commission takes into account not only agencies’ input but also the project 

sponsor’s proposed construction schedule and in-service date. 
Docket No. RM06-1-000 - 17 -

the stipulated aspects of an authorization request. But that is not the intent. Instead, the 

information submission is intended to give the Commission an overview to enable it to 

determine a realistic timetable for the environmental review process. The Commission 

recognizes that agencies’ reports will necessarily be provisional and subject to change, 

and will take this into account both when first determining a schedule for its NEPA 

review, and thereafter, to take into account agencies’ progress in processing authorization 

requests. 

23. For the purpose of measuring the time for an agency to act on an authorization 

request, in the NOPR the Commission explained the clock begins to run on the day a 

request is submitted to the agency. Interior questions whether this would be the day a 

request is sent or the day it is received; the Commission clarifies that the day the agency 

receives a request is the first day counted. This is unlikely to be the day an agency takes 

official notice that a complete application has been received and is ready for processing; 

rather, this will be the first day an agency is in receipt of a formal written request by a 

project sponsor for an authorization needed for a prospective NGA section 3 or 7 project. 

24. Commenters are concerned with the prospect that an agency might receive a 

cursory authorization request that could not be evaluated absent additional information. 

The NOPR stated that if an agency deems a request to be incomplete, and the project 

sponsor fails to provide the necessary information in time for the agency to reach a 

decision by the Commission’s scheduled deadline, then the agency may deny the 
Docket No. RM06-1-000 - 18 -

request.24 In turn, the Commission may deny the application before it, or authorization to 

commence construction, due to the project sponsor’s failure to obtain a necessary federal 

authorization. The Commission reiterates that whether an agency finds a request 

complete has no bearing on the agency’s allotted response time. That said, the 

Commission does not expect to have to frequently reject NGA applications due to 

imperfections in requests for related federal authorizations in view of the decision to 

revise the procedural schedule, as described above, to tie agencies’ deadlines to issuance 

of the EA or final EIS. This approach to scheduling should give agencies and applicants 

adequate advance notice of when decisions on requests for federal authorizations will be 

due, and motivate project sponsors to make all necessary information available in order 

for agencies to reach timely decisions on the merits. 

25. The Army COE asks if submitting an electronic copy to the Commission of the 

agency’s response to a project sponsor’s authorization request would satisfy the 

§ 385.2013 reporting requirement. It would, provided the submission contains the 

 24 This presumably would be the outcome with respect to an authorization 

required for a project if, as the Oregon Coastal Management Program and Coastal States 

Organization speculate, the agency is unable to obtain all the information needed to make 

an appropriate assessment of the proposal in time to meet the scheduled deadline for a 

final decision. Dominion requests that if an agency informs the Commission that a 

project sponsor has not adequately supported its request, then “the Commission will give 

the applicant an opportunity to respond and cure the alleged deficiencies.” Dominion’s 

Comments at 11 (July 31, 2006). In the event of a disagreement regarding the adequacy 

of the contents of a request for a federal authorization, the Commission may find reason 

to revise an agency’s deadline for a final decision. However, although the Commission 

implores project sponsors and agencies to work cooperatively, it cannot compel them to 

do so. An agency retains the discretion to reject a request on the grounds that 

information necessary to reach a decision is lacking. 
Docket No. RM06-1-000 - 19 -

specified information; moreover, as discussed herein, submission to the Commission 

need not be by electronic means. Regardless of whether an agency’s submission is made 

electronically or by paper copy, it should be filed in the PF or CP docket number, if 

available, assigned to the project sponsor’s application to the Commission. 

 Procedural Clarifications

26. Once an application is filed with the Commission and a schedule is established, if 

a project sponsor seeks to make a modification to its proposal that is material to one or 

more of its requested federal authorizations, the project sponsor should file a description 

of the modification with the Commission – regardless of whether the Commission has 

approved the application or whether the modification would require amendment of the 

proposal before the Commission. NiSource requests the Commission clarify that a 

material modification would include a modification to an aspect of the proposal that 

would substantially change the overall environmental impacts. The Commission accepts 

this characterization. Following a project sponsor’s notice to the Commission of a 

material modification, it will be within the discretion of the Director of OEP to determine 

whether the modification will make it impossible for an agency to reach a final decision 

on a request for a federal authorization within 90 days of the issuance of the 

Commission’s final environmental document.25 If so, pursuant to § 375.308, the Director 

 25 As one such instance, the Army COE describes circumstances where a project 

sponsor made a material modification that impacted the authorization request under 

consideration by the Army COE after the Commission’s final EIS was completed. Army 

COE Comments at 3 (July 31, 2006). In such a case, the project sponsor should inform 

 (continued...) 
Docket No. RM06-1-000 - 20 -

of OEP may establish a revised, separate deadline for a final decision by that agency. 

Finally, a material modification to a project pending approval by the Commission may 

merit revising and re-noticing the schedule for the environmental review. The schedule 

for agencies to complete their reviews would then be adjusted in accordance with the 

revised schedule for completing the NEPA process. 

27. The New Jersey DEP suggests that in submitting a request for a necessary federal 

authorization for an NGA section 3 or 7 project, the project sponsor identify the request 

as such. The Commission endorses this suggestion, and urges project sponsors to include 

the Commission’s applicable PF or CP docket number, if available, in its authorization 

request. Identifying the proposed project in this manner, and informing the agency that 

the request is being submitted in conjunction with an application to the Commission, will 

alert the agency of the need to inform the Commission of its receipt of the request, 

pursuant to new § 385.2013. Agencies, in turn, in submitting a report to the Commission 

on the status of a requested federal authorization, should identify the party submitting the 

request, identify the proposed project, and include, if available, the applicable PF or CP 

docket number. 

28. The New Jersey DEP and Delaware DNR propose making the project sponsor, 

rather than the agency receiving a request for a federal authorization, responsible for 

submitting to the Commission the agency’s initial 30-day status report and any data 

 

the Commission, and where appropriate, a revised, separate deadline will be established 

for the affected agency. 
Docket No. RM06-1-000 - 21 -

requests. The Commission sees disadvantages in having the project sponsor assume this 

responsibility. In part, the aim of the 30-day report is to open, or extend, the dialogue 

between the agency and the Commission, since the Commission expects to confer with 

the responsible agencies over the course of the NEPA review process. Initial contact 

would not necessarily be established early were the project sponsor to act as an 

intermediary between agencies and the Commission. The burden on agencies to copy the 

Commission on a data request sent to a project sponsor is minimal; thus, the Commission 

finds that rather than having project sponsors receiving an agency’s data request forward 

it on, it is better, in terms of timing and simplicity, to have the agency that generates the 

data request submit it directly to the Commission. 

29. NMFS suggests the Commission serve as a central point of contact linking project 

sponsors to agencies. The Commission sees no benefit to placing itself between the 

company seeking to develop a new project and the agencies responsible for examining 

aspects of the proposal. As is, Commission staff maintains communication with the 

project sponsor and agencies from the receipt of a request to make use of the prefiling 

process through issuance of the final decision. 

30. The Commission declares, in response to questions raised by INGAA and Islander 

East, that the procedures described herein do not apply to activities that do not involve 

“an application for authorization under section 3 or a certificate of public convenience 
Docket No. RM06-1-000 - 22 -

and necessity under section 7.”26 For example, auxiliary installations and the 

replacement of facilities under § 2.55, and activities authorized under the blanket 

certificate provisions of Part 157, subpart F, of the Commission’s regulations, and certain 

activities undertaken in response to a gas emergency, do not require authorization under 

NGA section 3 or issuance of a certificate under NGA section 7. 

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

provisions is protested, and the protest is not either dismissed or resolved and withdrawn, 

the “request filed by the certificate holder shall be treated as an application for section 7 

authorization for the particular activity.”27 However, although a protested blanket project 

proposal is treated as an application for a case-specific certificate, once the merits of the 

issues raised in the protest are addressed, and provided the proposal is not denied, the 

project is authorized under the project sponsor’s existing blanket certificate.28 A project 

sponsor that makes a prior notice filing for a proposed project to be constructed under 

blanket certificate authority is acting under the authority of its existing blanket certificate 

issued pursuant to NGA section 7(c). Consequently, to undertake projects that comply 

with the blanket certificates provisions, the project sponsor does not need to obtain an 

additional, separate NGA section 7(c) certificate. Therefore, the new regulatory 

 26 EPAct 2005 section 313(a)(3) (2005). 

27 18 CFR 157.205(f) (2006). 

28 See, e.g., Texas Eastern Transmission Corp., 76 FERC ¶ 61,178 (1996). 
Docket No. RM06-1-000 - 23 -

requirements promulgated herein pursuant to EPAct 2005 will not apply to projects 

authorized pursuant to the blanket certificate program. 

32. The City of Fall River, Massachusetts, the Massachusetts EOEA, and the 

Massachusetts Attorney General seek clarification on how the federal NEPA review and 

the environmental review undertaken by a state or the District of Columbia may interact. 

The different environmental reviews proceed on separate jurisdictional tracks, each on its 

own schedule and each arriving at its own independent findings. However, as a practical 

matter, if federal and state agencies are able to work in tandem, the result can be greater 

efficiencies for all concerned. Accordingly, where possible, the Commission coordinates 

its efforts with state agencies when assessing the environmental impacts of a proposed 

project and intends to continue to do so going forward. 

33. Islander East seeks clarification on how the revised regulations will apply to 

pending projects. The Commission, as a general matter, will not apply the §§ 153.8 and 

157.14 filing requirements for project sponsors, or the § 385.2013 reporting requirements 

for agencies, to applications filed prior to the effective date of this rule. That said, as 

noted above, the Director of OEP currently has delegated authority to establish schedules 

in pending proceedings,29 and if there is cause to do so, the Director of OEP may 

establish a schedule applicable to an ongoing proceeding. 

34. Mr. Mark Mendelson is concerned that the Commission is creating a 

“standardized” schedule that will not allow for an adequate assessment of safety risks and 

 29 See note 7. 
Docket No. RM06-1-000 - 24 -

long-term project impacts of proposed gas projects on individuals and communities. 

Mr. Mendelson expresses general dissatisfaction regarding the content, timing, and 

availability of information concerning proposed projects. He contends that affected 

individuals do not always receive adequate notice of proposed projects and suggests all 

potential stakeholders be notified by mail via the United States Postal Service of potential 

hazards or risks in their general locale posed by a proposed project. 

35. The Commission’s new reporting requirements and commitment to issue a notice 

of the environmental review schedule should serve to inform potentially interested 

persons of a pending project proposal. The Commission expects that its authority to 

establish schedules will lead to tailoring milestones appropriate to the particularities of 

proposed projects, and not to a one-size-fits-all standard. Mr. Mendelson’s proposal to 

review and revise the existing public notice requirements is beyond the scope of and is 

not germane to the matters being addressed in this rulemaking proceeding. However, any 

affected landowner that does not receive notice of a proposed project in a docketed 

proceeding as specified in the Commission’s regulations, or any individual that suspects 

the public notice provided is procedurally insufficient or substantively incomplete, can 

bring such concerns to the Commission’s attention and the specific circumstances will be 

investigated. 

Consolidated Record

36. Section 313 of EPAct 2005 directs the Commission to “maintain a complete 

consolidated record of all decisions made or actions taken by the Commission or by a 
Docket No. RM06-1-000 - 25 -

Federal administrative agency or officer (or State administrative agency or officer acting 

under delegated Federal authority) with respect to any Federal authorization.” 

37. The NOPR proposed to require agencies and officers issuing decisions or 

approvals necessary for proposed projects under NGA sections 3 and 7 to provide the 

Commission with a copy of the final decision reached or action taken, or a summary 

thereof, within three days of issuance of a final decision or action. The Commission 

proposed requiring agencies and officers to file an index of the record, identifying all 

documents and materials — including pleadings, comments, evidence, exhibits, 

transcripts of testimony, project alternatives (including alternative routings), studies, and 

maps — relevant to the decision, within three days of issuance of a final decision or 

action. 

38. Commenters object to the proposed requirement that a copy of the decision and an 

index to the record be filed within three days of the decision and suggest that the 

Commission allow 30 days for the filing of the decision and record index. In addition to 

promoting a 30-day interval, the Conservation Law Foundation recommends the 

Commission reimburse agencies for reasonable costs incurred in providing the index. 

39. The Commission accepts the claim that three days may not provide every agency 

with adequate time to organize and send the requested information – although, if an 

agency maintains and updates its index throughout the course of its proceeding, all it 

need do when a decision is issued is add the decision, or a summary thereof, to the index 

and submit it to the Commission. The Commission anticipated agencies’ submission of 
Docket No. RM06-1-000 - 26 -

the requested information would be merely ministerial, i.e., that the information would be 

available and electronically transmittable – or at least, easily duplicated and then sent – 

on the same day a final decision was reached. Commenters persuasively argue that this is 

not the case. In any event, the Commission does not believe that it is necessary to receive 

an agency’s information within three days of a final decision in order to satisfy the EPAct 

2005 mandate to maintain a complete consolidated record. Accordingly, the Final Rule 

revises the reporting requirement to provide agencies and officers 30 days, not three, to 

submit a final decision, or summary thereof, and index to the Commission. Further, 

while the Commission encourages electronic submissions, the proposed regulations are 

modified to provide the option to make paper filings with the Commission.30 In view of 

this modification to the means of filing, the Commission will modify the time provided 

for agencies to file a copy of data requests with the Commission, extending it from three 

days to 10 business days. 

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

request to provide reimbursement to agencies for expenses related to compliance with the 

provisions of this rule. Compliance is mandatory pursuant to the authority provided to 

the Commission by EPAct 2005. Further, in view of the revision above regarding the 

time permitted and means of submission, and the clarification below regarding the 

 30 As is currently the case, agencies will be expected to conform their filings to 

the requirements of 18 CFR 385.2003, to the extent that they are able. 
Docket No. RM06-1-000 - 27 -

contents of the index, the Commission expects the additional cost incurred by agencies to 

meet these new reporting requirements will not be unduly burdensome. 

41. Commenters’ objections to submitting an index appear to stem in part from an 

overly broad interpretation of what this index must include. The Commission clarifies 

that the index need not summarize the contents of each item in the agency’s record; 

rather, the index can be any method of notation capable of identifying each item in the 

record sufficiently to allow a reviewing body to select items of relevance to an issue on 

appeal. The Oregon Coastal Management Program observes that it typically relies on and 

references the outcome of multiple state and local actions, but does not include in its 

record the underlying documents that make up the record in those other actions. There is 

no need for agencies that follow such an approach to make any adjustment. Any 

methodology and recordkeeping that an agency now employs that is sufficient to serve as 

the basis for appeals or reviews is an acceptable “index” for the purposes of the 

consolidated record. Note that in filing an index, agencies should title the submission 

“Consolidated Record” and include a prominent reference on the first page to the docket 

number applied to the Commission proceeding which gave rise to the request for agency 

authorization. 

42. Baker Botts requests the Commission require that agencies provide the 

Commission with their full record, and not just an index thereto. The Commission finds 

no cause to require agencies to reproduce and transmit the contents of their entire record 

to the Commission. Only in the event of appeal will there be any call to view the original 
Docket No. RM06-1-000 - 28 -

or duplicate materials, and even then it is unlikely anything other than a limited subset of 

the record will be relevant. Therefore, provided an index is prepared, and original 

materials are retained and available for a minimum of three years, or until an appeal or 

review is concluded, there should be no delay in producing the portion of an agency’s 

record requested by a reviewing entity. 

43. The Army COE points out that when it issues a requested permit, the permit with 

terms and conditions is sent to the applicant, which has 60 days to appeal the terms and 

conditions if it chooses to do so; if the permit is denied, the applicant may appeal the 

denial. The Army COE asks that the date of final agency action for purposes of 

providing the record to the Commission be “at the end of any appeals process.” 

44. The Commission expects that individual agencies’ own regulations will determine 

when their actions are considered “final” and thereby start the 30-day clock for filing 

their decisions and indices with the Commission. However, the Commission will 

consider a decision or action on a request for a federal authorization to be “final,” and 

consequently subject to the 30-day deadline for filing with the Commission, if the project 

sponsor submitting the request can rely on an affirmative determination as sufficient 

authority to proceed. In other words, the agency’s deliberation must go beyond 

verification that a request is complete, or a preliminary determination, or an agency 

decision that approves a project sponsor’s application but makes its right to proceed 

contingent on the outcome of certain agency review or appeal processes; i.e., the outcome 

of the agency’s final decision or action must grant, condition, or deny the applicant’s 
Docket No. RM06-1-000 - 29 -

requested authorization. At this point, the 30-day period begins for an agency to provide 

the Commission with a copy of its decision, or a summary, and an index to its record in 

the proceeding. The 30-day period should permit the Commission to receive agencies’ 

decisions and indices in time to compile a complete consolidated record for the purposes 

of judicial review (or in the case of a CZMA determination, review by the Department of 

Commerce).31 

45. The Army COE asserts the Commission should forward Freedom of Information 

Act (FOIA) requests to agencies, instead of preparing a response using the consolidated 

record. The Commission clarifies that FOIA requests should be submitted directly to the 

agency responsible for generating the information in question. While an agency’s index 

filed with the Commission may be useful in identifying records relevant to a FOIA 

request, the Commission will not be capable of effectively responding to FOIA requests, 

or other types of requests, that concern the substantive matters of another agency’s 

proceeding. Further, the Commission’s responsibilities under EPAct 2005 do not include 

compiling documents to respond to FOIA requests. The Commission does not expect to 

receive or respond to FOIA requests, unless the information sought is part of the 

Commission’s own record of its deliberations in a particular proceeding. 

 31 The Commission notes that when it issues an order granting a project sponsor a 

section 7 certificate or section 3 authorization under the NGA to construct gas facilities, 

clearance to commence construction generally is withheld until the project sponsor has 

obtained other necessary authorizations from other agencies. However, once such 

authorizations have been obtained by the project sponsor, the project sponsor generally is 

granted clearance to commence construction, notwithstanding any pending requests for 

rehearing. 
Docket No. RM06-1-000 - 30 -

Information Collection Statement

46. The Office of Management and Budget (OMB) regulations require that OMB 

approve certain reporting, record keeping, and public disclosure (collections of 

information) requirements imposed by agency rules.32 Pursuant to OMB regulations, the 

Commission is submitting these reporting requirements to OMB for its review and 

approval under section 3507(d) of the Paperwork Reduction Act of 1995 (PRA).33 Upon 

approval of a collection of information, OMB will assign an OMB control number and an 

expiration date. Respondents subject to the filing requirements of this rule will not be 

penalized for failing to respond to these collections of information unless the collections 

of information display a valid OMB control number. The information collection 

requirements in this Final Rule are: FERC-539, FERC-537, FERC-606, and FERC-607. 

These are mandatory reporting requirements. 

Public Reporting Burden

47. The Commission did not receive specific comments concerning its burden estimates 

and uses the same estimates here in the Final Rule. Several commenters expressed 

concern with the burden that would be imposed if information was required to be 

submitted under the initially proposed time frame. However, as discussed herein, the 

Commission has taken these comments into consideration and extended the time frame 

for submitting information. 

 32 5 CFR 1320.11 (2006). 

33 44 U.S.C. 3507(d) (2005). 
Docket No. RM06-1-000 - 31 -

Data 

Collection

Number of 

Respondents

Number of 

Responses

Hours per 

Response

Total Hours

FERC-537 76 815 0.5 408 

FERC-539 12 12 0.5 6 

FERC-606 48 1702 4.4 7,489 

FERC-607 48 1654 6.3 10,423 

Totals 18,326 

Total Annual Hours for Collection: 18,326. 

Information Collection Costs: Because of the regional differences and the various 

staffing levels that will be involved in preparing the documentation (legal, technical, and 

support), the Commission is using an hourly rate of $150 to estimate the costs for filing 

and other administrative processes (reviewing instructions, searching data sources, 

completing and transmitting the collection of information). The estimated cost is 

$2,748,900. 

Title: FERC-539 “Gas Pipeline Certificates: Import/Export Related;” FERC-537 “Gas 

Pipeline Certificates: Construction, Acquisition and Abandonment;” FERC-606 “Gas 

Pipeline Certificates: Notification of request for Federal Authorization;” and FERC-607 

“Report on Decision or Action on Request for Federal Authorization.” 

Action: Data Collection. 

OMB Control No.: FERC-539 (1902-0062); FERC-537 (1902-0060); FERC-606 & 

FERC-607 (To be determined). 
Docket No. RM06-1-000 - 32 -

Respondents: Natural gas pipeline companies and state agencies and officers. 

Frequency of Responses: On occasion. 

Necessity of Information: EPAct 2005 section 313 directs the Commission to 

(1) establish schedules for state and federal agencies and officers to act on requests for 

federal authorizations required for natural gas projects under sections 3 and 7 of the NGA 

and (2) maintain a complete consolidated record of all decisions or actions taken by the 

Commission and other agencies and officers with respect to such authorizations. The 

Commission considers the regulatory provisions adopted herein to be the minimum 

necessary for the Commission to implement the new authority provided by EPAct 2005. 

48. For information regarding the requirements of the collections of information and 

the associated burden estimates, including suggestions for reducing this burden, please 

send comments to the Federal Energy Regulatory Commission, 888 First Street, N.E., 

Washington, D.C. 20426 (Attention: Michael Miller, Office of the Executive Director), 

or send e-mail to michael.miller@ferc.gov), or to the Office of Management and Budget 

(Attention: Desk Officer for the Federal Energy Regulatory Commission), by fax to 

(202) 395-7285, or by e-mail to oira_submission@omb.eop.gov. 

Environmental Analysis

49. The Commission is required to prepare an Environmental Assessment or an 

Environmental Impact Statement for any action that may have a significant adverse effect 
Docket No. RM06-1-000 - 33 -

on the human environment.34 No environmental consideration is raised by promulgation 

of a rule that is procedural in nature or that does not substantially change the effect of 

legislation or regulations being amended.35 The regulations adopted herein require 

authorizing agencies to provide the Commission with copies or summaries of decisions 

and indices to the records of those decisions in cases arising under the Commissions 

jurisdiction under the Natural Gas Act. These are minor procedural changes to the 

Commission’s existing regulations and do not substantially change the effect of any 

legislation or regulations. Nor do they substantially change any regulatory requirements 

to which pipeline companies or authorizing agencies are currently subject. Accordingly, 

the preparation of an environmental document is not required. 

Regulatory Flexibility Act Certification

50. The Regulatory Flexibility Act of 1980 (RFA)36 generally requires a description 

and analysis of final rules that will have significant economic impact on a substantial 

number of small entities. The Commission is not required to make such an analysis if 

proposed regulations would not have such an effect. 

 34 Order No. 486, Regulations Implementing the National Environmental Policy 

Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. Preambles 1986-1990 ¶ 30,783 

(1987). 

35 18 CFR 380.4(a)(2)(ii) (2006). 

36 5 U.S.C. 601-612 (2005). 
Docket No. RM06-1-000 - 34 -

51. Although it appears that agencies affected by the rule promulgated today do not 

fall within the RFA’s definition of “small governmental jurisdiction”37 or its definition of 

“small entities,”38 the Commission is nevertheless mindful of costs and burdens to be 

imposed upon agencies required to provide copies of decisions and indexes to the record 

in federal authorization proceedings. In response to commenters that observe certain 

agencies may lack the resources needed to comply with the proposed three-day deadline 

for filing and the proposed requirement for electronic filing, the Commission is adopting 

alternative requirements to take into account the resources available to the agencies to 

accommodate the limited resources of small entities.39 The three-day deadline is 

extended to 30 days, and electronic filing, while still the preferred option, is no longer 

required. 

52. Most of the natural gas companies regulated by the Commission do not fall within 

the RFA’s definition of a small entity.40 Approximately 114 natural gas companies are 

 37 5 U.S.C. 601(5) (2005) provides that “the term ‘small governmental 

jurisdiction’ means governments of cities, counties, towns, townships, villages, school 

districts, or special districts, with a populations of less than fifty thousand.” 

38 5 U.S.C. 601(6) (2005) provides that “the term ‘small entity’ shall have the 

same meaning as the terms ‘small business,’ ‘small organization,’ and ‘small 

governmental jurisdiction.’” 

39 5 U.S.C. 603 (c) (1) and (2) (2005). 

40 See 5 U.S.C. 601(3) (2005), citing section 3 of the Small Business Act, 

15 U.S.C. 623 (2005). Section 3 of the SBA defines a “small business concern” as a 

business which is independently owned and operated and which is not dominant in its 

field of operation. The Small Business Size Standards component of the North American 

 (continued...) 
Docket No. RM06-1-000 - 35 -

potential respondents subject to the requirements adopted by this rule. For the year 2004 

(the most recent year for which information is available), 32 companies had annual 

revenues of less than $6.5 million. The procedural modifications enacted herein should 

have no significant economic impact on those entities – be they large or small – subject to 

the Commission’s NGA jurisdiction. In view of these considerations, the Commission 

certifies that this Final Rule’s amendments to the regulations will not have a significant 

impact on a substantial number of small entities. 

Document Availability

53. In addition to publishing the full text of this document in the Federal Register, the 

Commission provides all interested persons an opportunity to view and print the contents 

of this document via the Internet through FERC's Home Page (http://www.ferc.gov) and 

in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. 

Eastern time) at 888 First Street, N.E., Room 2A, Washington D.C. 20426. From FERC's 

Home Page on the Internet, this information is available in the Commission’s document 

management system, eLibrary. The full text of this document is available in eLibrary in 

PDF and Microsoft Word format for viewing, printing, and downloading. To access this 

document in eLibrary, type RM06-1 in the docket number field. 

 

Industry Classification System defines a small natural gas pipeline company as one that 

transports natural gas and whose annual receipts (total income plus cost of goods sold) 

did not exceed $6.5 million for the previous year. 
Docket No. RM06-1-000 - 36 -

54. User assistance is available for eLibrary and the Commission’s website during 

normal business hours at (202) 502-8222 or the Public Reference Room at (202) 

502-8371 Press 0, TTY (202)502-8659. E-Mail the Public Reference Room at 

public.referenceroom@ferc.gov. 

EFFECTIVE DATE AND CONGRESSIONAL NOTIFICATION

55. These regulations are effective [insert date 60 days after publication in the

FEDERAL REGISTER].

56. The Commission has determined, with the concurrence of the Administrator of the 

Office of Information and Regulatory Affairs of OMB, that this rule is not a "major rule" 

as defined in Section 351 of the Small Business Regulatory Enforcement Fairness Act of 

1996.41

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 

 41 5 U.S.C. 804(2) (2005). 
Docket No. RM06-1-000 - 37 -

18 CFR Part 385

Administrative practice and procedure, Electric power, Penalties, Pipelines, Reporting 

and recordkeeping requirements 

By the Commission. 

( S E A L ) 

Magalie R. Salas, 

Secretary. 
Docket No. RM06-1-000 - 38 -

 In consideration of the foregoing, the Commission amends parts 153, 157, 375, 

and 385, Chapter I, Title 18, Code of Federal Regulations, as follows: 

PART 153 -- APPLICATIONS FOR AUTHORIZATION TO CONSTRUCT, 

OPERATE, OR MODIFY FACILITIES USED FOR THE EXPORT OR IMPORT 

OF NATURAL GAS 

1. The authority citation for part 153 continues to read as follows: 

Authority: 15 U.S.C. 717b, 717o; E.O. 10485, 3 CFR, 1949-1953 Comp., p. 970, 

as amended by E.O. 12038, 3 CFR, 1978 Comp., p. 136, DOE Delegation Order No. 

0204-112, 49 FR 6684 (February 22, 1984). 

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

§ 153.4 General requirements. 

 The procedures in §§ 157.5, 157.6, 157.8, 157.9, 157.10, 157.11, and 157.12 of 

this chapter are applicable to the applications described in this subpart. 

3. In § 153.8: 

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

b. The period is removed from the end of paragraph (a)(8), and “; and” is added in 

its place; and 

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

§ 153.8 Required exhibits.

(a) * * * 
Docket No. RM06-1-000 - 39 -

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

proposal will require; the Federal agency or officer, or State agency or officer acting 

pursuant to delegated Federal authority, that will issue each required authorization; the 

date each request for authorization was submitted; why any request was not submitted 

and the date submission is expected; and the date by which final action on each Federal 

authorization has been requested or is expected. 

 * * * * * 

PART 157 -- APPLICATIONS FOR CERTIFICATES OF PUBLIC 

CONVENIENCE AND NECESSITY AND FOR ORDERS PERMITTING AND 

APPROVING ABANDONMENT UNDER SECTION 7 OF THE NATURAL GAS 

ACT 

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

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

5. In §157.9: 

 a. The section heading is revised; 

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

added immediately before the phrase “days of filing”; and 

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

§ 157.9 Notice of application and notice of schedule for environmental 

review. 

 * * * * * 
Docket No. RM06-1-000 - 40 -

 (b) For each application that will require an environmental assessment or an 

environmental impact statement, notice of a schedule for the environmental review will 

be issued within 90 days of the notice of the application, and subsequently will be 

published in the Federal Register. 

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

§ 157.14 Exhibits.

 (a) * * * 

 (12) Exhibit J – Federal authorizations. A statement identifying each Federal 

authorization that the proposal will require; the Federal agency or officer, or State agency 

or officer acting pursuant to delegated Federal authority, that will issue each required 

authorization; the date each request for authorization was submitted; why any request was 

not submitted and the date submission is expected; and the date by which final action on 

each Federal authorization has been requested or is expected. 

 * * * * * 

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

§ 157.22 Schedule for final decisions on a request for a Federal authorization

 For an application under section 3 or 7 of the Natural Gas Act that requires a 

Federal authorization – i.e., a permit, special use authorization, certification, opinion, or 

other approval – from a Federal agency or officer, or State agency or officer acting 

pursuant to delegated Federal authority, a final decision on a request for a Federal 
Docket No. RM06-1-000 - 41 -

authorization is due no later than 90 days after the Commission issues its final 

environmental document, unless a schedule is otherwise established by Federal law. 

PART 375 – THE COMMISSION 

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

 Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 U.S.C. 791-

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

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

§ 375.308 Delegations to the Director of the Office of Energy Projects. 

 * * * * * 

 (bb) Establish a schedule for each Federal agency or officer, or State agency or 

officer acting pursuant to delegated Federal authority, to issue or deny Federal 

authorizations required for natural gas projects subject to section 3 or 7 of the Natural 

Gas Act. 

PART 385 – RULES OF PRACTICE AND PROCEDURE 

10. The authority citation for part 385 continues to read as follows: 

 Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717z, 3301-3432; 16 U.S.C. 791a825r, 2601-2645; 28 U.S.C. 2461; 31 U.S.C. 3701, 9701; 42 U.S.C. 7101-7352; 49 

U.S.C. 60502; 49 App. U.S.C. 1-85 (1988). 

11. Section 385.2013 is redesignated as § 385.2015 and the heading of newly 

designated §385.2015 is revised to read as follows: 
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§ 385.2015 Videotapes (Rule 2015).

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

§ 385.2013 Notification of requests for Federal authorizations and requests 

for further information (Rule 2013). 

 (a) For each Federal authorization – i.e., permit, special use authorization, 

certification, concurrence, opinion, or other approval – required under Federal law with 

respect to a natural gas project for which an application has been filed under section 3 of 

the Natural Gas Act for a certificate of public convenience and necessity under section 7 

of the Natural Gas Act, each Federal agency or officer, or State agency or officer acting 

pursuant to delegated Federal authority, responsible for a Federal authorization must file 

with the Commission within 30 days of the date of receipt of a request for a Federal 

authorization, notice of the following: 

 (1) Whether the application is ready for processing, and if not, what additional 

information or materials will be necessary to assess the merits of the request; 

 (2) The time the agency or official will allot the applicant to provide the necessary 

additional information or materials; 

 (3) What, if any, studies will be necessary in order to evaluate the request; 

 (4) The anticipated effective date of the agency’s or official’s decision; and 

 (5) If applicable, the schedule set by Federal law for the agency or official to act. 

 (b) A Federal agency or officer, or State agency or officer acting pursuant to 

delegated Federal authority, considering a request for a Federal authorization that 
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submits a data request to an applicant must file a copy of the data request with the 

Commission within 10 business days. 

§ 385.2014 Petitions for appeal or review of Federal authorizations (Rule 

2014). 

 (a) For each Federal authorization – i.e., permit, special use authorization, 

certification, concurrence, opinion, or other approval – required under Federal law with 

respect to a natural gas project for which an application has been filed for authorization 

under section 3 of the Natural Gas Act for a certificate of public convenience and 

necessity under section 7 of the Natural Gas Act, the Federal agency or officer, or State 

agency or officer acting pursuant to delegated Federal authority, responsible for each 

Federal authorization must file with the Commission within 30 days of the effective date 

of a final decision or action on a request for a Federal authorization or the expiration of 

the time provided by the Commission or by Federal law for a final decision or action, the 

following: 

 (1) A copy of any final decision or action; 

 (2) An index identifying all documents and materials – including pleadings, 

comments, evidence, exhibits, testimony, project alternatives, studies, and maps – relied 

upon by the agency or official in reaching a decision or action; and 

 (3) The designation “Consolidated Record” and the docket number for the 

Commission proceeding applicable to the requested Federal authorization. 
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 (b) The agencies’ and officers’ decisions, actions, and indices, and the 

Commission’s record in each proceeding, constitute the complete consolidated record. 

The original documents and materials that make up the complete consolidated record 

must be retained by agencies, officers, and the Commission for at least three years from 

the effective date of a decision or action or until an appeal or review is concluded. 

 (c) Upon appeal or review of a Federal authorization, agencies, officers, and the 

Commission will transmit to the reviewing authority, as requested, documents and 

materials that constitute the complete consolidated record.