65752 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations

1Collaborative Procedures for Energy Facility

Applications, Order No. 608, 64 FR 51209 (Sept. 22,

1999); FERC Stats. & Regs., Regulations Preambles

¶ 31,080 (Sept. 15, 1999).

2Composed of Chevron U.S.A., Inc., Shell

Offshore Inc., and Marathon Oil Company.

3Mr. Frederick W. Martin filed a letter supporting

Indicated Shippers’ rehearing request. In addition,

Travis Kenneth Bynum, I, filed a Motion to Deny

Rehearing in this docket that raises no issues

relevant to this proceeding. 4 42 U.S.C. 4321–4307a.

§ 240.14c–101 Schedule 14C. Information

required in information statement.

* * * * *

Item 5. Delivery of documents to

security holders sharing an address.

If one annual report or information

statement is being delivered to two or

more security holders who share an

address, furnish the following

information in accordance with

§ 240.14a–3(e)(1):

(a) State that only one annual report

or information statement, as applicable,

is being delivered to multiple security

holders sharing an address unless the

registrant has received contrary

instructions from one or more of the

security holders;

(b) Undertake to deliver promptly

upon written or oral request a separate

copy of the annual report or information

statement, as applicable, to a security

holder at a shared address to which a

single copy of the documents was

delivered and provide instructions as to

how a security holder can notify the

registrant that the security holder

wishes to receive a separate copy of an

annual report or information statement,

as applicable;

(c) Provide the phone number and

mailing address to which a security

holder can direct a notification to the

registrant that the security holder

wishes to receive a separate annual

report or proxy statement, as applicable,

in the future; and

(d) Provide instructions how security

holders sharing an address can request

delivery of a single copy of annual

reports or information statements if they

are receiving multiple copies of annual

reports or information statements.

Dated: October 27, 2000.

By the Commission.

Jonathan G. Katz,

Secretary.

[FR Doc. 00–28137 Filed 11–1–00; 8:45 am]

BILLING CODE 8010–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory

Commission

18 CFR Part 157

[Docket No. RM98–16–001; Order No. 608–

A]

Collaborative Procedures for Energy

Facility Applications; Order on

Rehearing

Issued October 27, 2000.

AGENCY: Federal Energy Regulatory

Commission.

ACTION: Final rule, order on rehearing.

SUMMARY: The Federal Energy

Regulatory Commission (Commission)

affirms, modifies, and clarifies its final

rule, Order No. 608.1 The final rule

implemented procedural regulations

that offer prospective applicants seeking

to construct, operate or abandon natural

gas facilities or services the option, in

appropriate circumstances and prior to

filing an application, of designing a

collaborative process that includes

environmental analysis and issue

resolution. This pre-filing collaborative

process is optional, is designed to be

adaptable to the facts and circumstances

of each particular case, and is expected

to result in improvements in filed

applications.

EFFECTIVE DATE: Changes to Order No.

608 made in this order on rehearing will

become effective on December 4, 2000.

FOR FURTHER INFORMATION CONTACT:

Richard Hoffmann, Office of Energy

Projects, 888 First Street, NE.,

Washington, D.C. 20426, (202) 208–

0066

Gordon Wagner, Office of the General

Counsel, 888 First Street, NE.,

Washington, D.C. 20426, (202) 219–

0122

SUPPLEMENTARY INFORMATION:

Introduction

On September 15, 1999, the

Commission issued a final rule

providing prospective applicants for

natural gas facilities or services the

option, in appropriate circumstances

and prior to filing an application, to

employ a collaborative process to

identify and address significant issues.1

Indicated Shippers 2 filed a timely

request for rehearing.3

We will deny in part and grant in part

the request for rehearing, for the reasons

discussed below.

Background

Order No. 608 sets forth regulations to

govern certain discussions that take

place prior to the submission of an

application to the Commission. Under

these regulations, a prospective

applicant that seeks to construct,

operate, or abandon natural gas facilities

or services may, in appropriate

circumstances and prior to filing an

application, design a collaborative

process to address and resolve issues

raised by its proposal.

The Commission anticipates that if a

natural gas company invites entities that

might be interested in new facilities or

services, or in the abandonment of

existing facilities or services, to identify

issues and discuss resource impacts as

part of the process of developing a

proposal, this will facilitate the filing of

a complete application. A project

sponsor that is able to submit an

application that addresses and resolves

issues, along with a preliminary draft

environmental assessment (EA) or

environmental impact statement (EIS) in

accordance with the National

Environmental Policy Act (NEPA),4 may

be processed expeditiously.

Applications that are incomplete, or that

are amended in response to issues

identified only after filing, or that

require the submission of additional

information or studies or resource

impacts before the Commission is able

to consider the merits, generally take

longer to process than applications that

are uncontentious and complete.

As noted in the final rule, this prefiling collaborative process is optional

and voluntary and is intended to be

flexible, adaptable, and responsive to

the facts and circumstances of each

particular case. The collaborative

regulations do not delete or replace any

existing regulations. Thus, a prospective

gas facility applicant that elects to

forego pre-filing collaborative

consultation may continue to use the

standard authorization procedures.

A project sponsor that seeks to

undertake a pre-filing collaboration

pursuant to the new regulations must

demonstrate to the Commission that it

has made reasonable efforts to contact

and invite all potentially interested

entities to participate and that it has

developed a communications protocol

to govern how the applicant and

participants will communicate. The

Commission will give public notice in

the Federal Register of the requested

collaboration and invite comments. The

Commission will review the adequacy

of the applicant’s outreach efforts,

consider comments, and weigh whether

pre-filing discussions are likely to be

productive. If the request to collaborate

is approved, then Commission staff will

be assigned to help guide the pre-filing

process, which can include the

preparation of a preliminary draft NEPA

document. The applicant will maintain

a file, available to the public, of all

relevant documentation of the

collaboration, including minutes or

summaries of meetings.

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations 65753

5However, where pre-filing discussions result in

an applicant and participants reaching accord on

issues, presumably by means of compromises and

concessions, the participants may elect to prepare

an offer of settlement to be submitted to the

Commission in conjunction with an application.

We do not expect participants that agree to be

bound to a particular position during pre-filing to

attempt to revise their position post-filing. Further,

as stated in § 157.22(e)(6), where scientific studies

and alternative route analyses are included as part

of a pre-filing collaboration, ‘‘[a]dditional requests

for studies may be made to the Commission after

the filing of an application only for good cause

shown.’’ This is to avoid duplicative efforts and

avoid delay. Of course, if there is a legitimate need

for additional studies, the Commission will require

them as part of its process of reviewing the

application.

6 63 FR 59916 (Nov. 6, 1998); FERC Stats. & Regs.,

Proposed Regulations ¶ 32,536 (1998).

7 Indicated Shippers’ Request for Rehearing at 7

(Oct. 15, 1999).

8Section 375.307(h) of the regulations delegates

to the Director of the Office of Energy Projects the

authority to determine whether to approve a request

to use pre-filing collaborative procedures.

Once underway, a pre-filing

collaboration may continue until accord

has been reached among the

participants, until relevant resource

issues have been considered and a

preliminary draft EA or EIS prepared, or

until the project sponsor or participants

conclude further efforts to address

unresolved issues are unlikely to be

productive. A project sponsor

undertaking a pre-filing collaboration is

not foreclosed from filing an application

at any time, nor is a collaborative

participant (or non-participant)

precluded from intervening and

commenting on or protesting any aspect

of an application once it is filed with

the Commission and an on-the-record

proceeding commences.5

Request for Rehearing

Indicated Shippers repeat objections

raised in response to the Commission’s

notice of proposed rulemaking 6 and

assert the final rule fails to respond

adequately to these objections;

consequently, Indicated Shippers argue

the final rule does not constitute

reasoned decisionmaking. Indicated

Shippers claim the pre-filing

collaborative process would force

entities to participate in pre-filing

proceedings, discount or disregard the

concerns of potentially affected entities,

and result in biased decision making by

the Commission.

Commission Authority To Implement

Pre-Filing Collaborative Regulations

Indicated Shippers contend that

section 7 of the Natural Gas Act (NGA)

does not expressly authorize the

Commission to promulgate pre-filing

collaborative procedures and believe the

Commission’s review process should

only begin after an application is filed.

Indicated Shippers maintain pre-filing

collaboration may render the

Commission’s post-filing consideration

‘‘academic and nothing more than an

empty formality,’’ 7 whereby the

Commission would rubber-stamp the

outcome of a pre-filing collaboration.

Indicated Shippers stress such action

would contravene NGA section

7(c)(1)(B), which provides for notice and

hearing following the filing of an

application. While the Commission

describes participation in a pre-filing

collaboration as optional and voluntary,

Indicated Shippers challenge this

characterization, contending interested

entities will be compelled to either

participate in pre-filing procedures or

otherwise lose their only meaningful

opportunity to present their concerns.

Commission Response

Indicated Shippers is correct that the

NGA does not specify procedural

formalities to be followed prior to the

time the Commission is asked to act in

response to a petition. The Order No.

608 regulations establish an outline for

certain pre-filing formalities, but these

regulations only apply where a

prospective applicant and interested

entities agree to adhere to them, i.e.,

they are voluntary. Further, being

present at or absent from a pre-filing

collaboration will not prejudice an

entity’s capacity to endorse or object to

a proposed project subsequent to the

applicant’s submission to the

Commission of a request for

authorization. Finally, section 16 of the

NGA grants the Commission ‘‘power to

perform any and all acts, and to

prescribe, issue, make, amend, and

rescind such orders, rules, and

regulations as it may find necessary or

appropriate to carry out the provisions

of this act.’’ In this case, we find the

regulations put in place by this rule are

appropriate to promote the efficient

review of requests NGA section 7

authorizations.

Indicated Shippers acknowledge that

prior to Order No. 608, prospective

applicants have engaged in pre-filing

discussions, typically with Commission

staff. Project sponsors also typically

negotiate for easements with

landowners along a prospective right-ofway and confer with resource agencies

prior to proposing a route for new

facilities. These conversations and

negotiations occur in anticipation of

obtaining NGA section 7(b)

abandonment approval or section 7(c)

certificate authorization, but for the

most part, proceed unaided by

Commission regulation. The new

regulations offer an option to enhance

the utility of such discussions by

directing a project sponsor to contact a

more inclusive range of potentially

affected entities and providing a

framework to identify issues and initiate

the NEPA review process. In effect, the

Order No. 608 regulations encourage a

project sponsor to converse collectively,

not individually, and in public, not in

private, with all affected entities in a

single forum, subject to formalities

designed to promote constructive

dialogue.

Indicated Shippers’ concern that a

pre-filing collaboration could curtail

entities’ capability to bring concerns to

the Commission following filing is

unfounded. As discussed in the final

rule, all entities have the option of

participating in or abstaining from a

collaboration, and participants are

under no obligation to agree not to

contest aspects of a proposal.

After a collaboration concludes and

an application is filed, the Commission

will consider the requested

authorization in conformity with our

standard procedures governing notice,

comment, and the examination of all

relevant issues. Regardless of the

outcome of a pre-filing collaboration,

following filing all interested entities

will have a meaningful opportunity to

comment and raise concerns. If

collaborative participants reach

agreements that are submitted in

conjunction with an application, we

will review the results, and then accept,

reject, or modify the terms of the

participants’ agreements when we act

on the application. Although we

anticipate collaborative accords may

enhance the acuity of our review of an

application, we stress that regardless of

the uniformity and ardor with which

collaborative participants urge on a

particular proposal, no authorization

will issue unless we determine that a

project is required by the public

convenience and necessity.

Adequacy of Notice of a Pre-Filing

Collaboration

A project sponsor seeking

Commission approval to use the prefiling collaborative process must

demonstrate that it has made reasonable

efforts to notify all potentially affected

entities. Section 157.22(d) of the

regulations states that the Commission

‘‘will give public notice in the Federal

Register of a request to initiate a prefiling collaboration. If the Commission

approves the request,8 § 157.22(e)(1)

states that ‘‘[t]o the extent feasible under

the circumstances of the process, the

65754 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations

9 18 CFR 157.22(e)(1).

10See Landowner Notification, Expanded

Categorical Exclusions, and Other Environmental

Filing Requirements, Order No. 609, 64 FR 57374,

(Oct. 25, 1999); FERC Stats. and Regs., Regulations

Preambles ¶ 31,082 (Oct. 13, 1999), order on reh’g,

Order No. 609–A, 65 FR 15234 (Mar. 22, 2000);

FERC Stats. and Regs., Regulations Preambles

¶ 31,095 (Mar. 16, 2000), order rejecting reh’g, 91

FERC ¶ 61,278 (2000).

11The existing §§ 157.22(e)(5), (e)(6), and (e)(7)

will be redesignated as §§ 157.22(e)(6), (e)(7), and

(e)(8).

Commission will give notice in the

Federal Register . . . of the initial

information meeting or meetings and

the scoping of environmental issues.’’ 9

Indicated Shippers question whether

these procedures will be sufficient to

ensure that potentially interested

entities will have adequate notice of a

proposal to initiate a pre-filing

collaboration and the Commission’s

acceptance thereof.

Indicated Shippers suspect a

prospective applicant might serve notice

selectively in an effort to exclude

persons likely to object to the proposal.

Further, Indicated Shippers note that

§ 157.22(b)(3) states that an applicant

that decides to seek Commission

approval to undertake a pre-filing

collaboration, after inviting potentially

interested entities to participate, is to

then inform ‘‘all entities contacted by

the applicant that have expressed an

interest in the pre-filing collaborative

process’’ of its decision. Indicated

Shippers object that this approach not

only does nothing to cure omissions in

an applicant’s initial notification; rather,

it restricts notice of Commission

approval of a collaboration to only those

entities that an applicant had previously

contacted that had responded to express

an interest.

Mr. Frederick W. Martin requests that

notification of a proposed collaboration

be sent by certified mail to all

landowners with property eligible for

listing on the National Registry of

Historic Places.

Commission Response

Section 157.22(b)(1) of our regulations

directs a project sponsor seeking to

initiate a pre-filing collaboration to

make ‘‘a reasonable effort’’ to contact

‘‘resource agencies, local governments,

Indian tribes, citizens’ groups,

landowners, customers, and others’’ that

might be interested in its proposal.

Commission staff will work closely with

project sponsors to ensure that such

outreach efforts are comprehensive.

Where we find a prospective applicant’s

efforts at notification to be inadequate,

or the range of contacted parties to be

too narrow, we will not grant the

request to use the collaborative process

unless identified defects are remedied.

Thus, selective notification, as a means

to handpick participants, is

incompatible with the collaborative

approach expressed in the final rule. We

do not believe a more thorough

application will result, or the time

required to obtain project authorization

will be reduced, by conducting a

collaboration that merely serves as a

forum for the like-minded to praise a

proposal.

We will adopt Indicated Shippers’

suggestion to modify the regulations to

ensure that potentially interested

entities be made aware of Commission

approval of a request to use the

collaborative process. Accordingly, we

change § 157.22(e)(1) to read as follows:

The Commission will publish notice of its

authorization to use the pre-filing process in

the Federal Register; the applicant will

publish notice of the Commission’s

authorization to use the pre-filing process in

a local newspaper of general circulation in

the county or counties in which the proposed

project is to be located. To the extent feasible,

the applicants’ notice will specify the time

and place of the initial information

meeting(s) and the scoping of environmental

issues and will be sent to a mailing list

approved by the Commission that includes

the names and addresses of landowners

affected by the project.

In reference to Indicated Shippers’

argument for broader notification

requirements, we clarify that the

Commission-approved mailing list is

expected to include all entities filing

comments in response to the notice of

a request to use the pre-filing process.

However, we will not modify

§ 157.22(b)(3), which restricts the scope

of the second round of notification—i.e.,

notice that a request to use the pre-filing

process has been submitted to the

Commission—to the subset of

potentially interested entities that have

responded to the § 157.22(b)(1)

invitation and expressed an interest in

the pre-filing process. If a project

sponsor makes an adequate initial effort

to invite potentially interested entities

to participate in a pre-filing

collaboration, we find no need for the

project sponsor to continue to inform

non-responsive or uninterested entities

of ongoing developments.

We also find no need to compel a

project sponsor to send certified mail to

certain landowners, as proposed by Mr.

Frederick W. Martin, since we believe

the above-described requirements will

be sufficient to ensure adequate notice.

Further, we note the early notification

requirements recently put in place in

§ 157.6(d) of our regulations are

designed to ensure that landowners that

may be affected by a proposed project

have ample time and opportunity to

participate in the Commission’s

consideration of a proposal following

the filing of an application.10

Adequacy of the Documentation of a

Pre-filing Collaboration

Indicated Shippers are concerned the

documentation of a pre-filing

collaboration may not be adequate or

timely and urge the Commission to

ensure interested parties have access to

information on an ongoing

collaboration, without the need to

actively participate in the process, by

requiring the prospective applicant to

make periodic reports to the

Commission summarizing the progress

of the pre-filing proceeding.

Commission Response

We are persuaded that periodic

reporting on a collaboration will

facilitate an entity’s oversight of an

ongoing proceeding, in particular where

an entity has interests in separate,

simultaneous collaborative proceedings.

Therefore, we will require that a

collaborative sponsor submit quarterly

reports on the progress of a

collaboration. Such reports should

summarize meetings held, topics

addressed, studies undertaken, etc. We

do not expect transcripts or extensive

documentation and thus do not expect

these quarterly updates to unduly

burden a project sponsor. Accordingly,

we will add the following requirement

as § 157.22(e)(5): 11

Every three 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 § 157.22(e)(4) 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.

We expect that collaborative

participants, when establishing a

communications protocol to govern

discussions, will routinely include

provisions regarding the mechanics of

documenting the progress of

discussions, studies, decisions, etc., and

of making this documentation of the

collaboration accessible. We also expect

that at the conclusion of the

collaborative process, participants will

decide what data gathered during the

pre-filing process should be filed with

the application and thereby be entered

into the record of the proceeding.

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations 65755

12FERC Stats. & Regs., Regulations Preambles,

¶ 31,080 at 30,909.

13 Indicated Shippers’ Request for Rehearing at 4

and 11 (Oct. 15, 1999).

Commission Decision to Approve a

Request to Use the Collaborative

Procedure

In deciding whether to go forward

with a proposed collaboration, or to

resolve matters once a collaboration is

underway, the rule directs participants

to act by consensus, defined as ‘‘a

collective opinion; the judgment arrived

at by most of those concerned.’’ 12

Indicated Shippers believe this standard

is too vague and is open to abuse.

Indicated Shippers are concerned that

the regulations do not provide for

review of Commission decisions on

requests to use the collaborative

process, and speculate the Commission

may approve a collaborative request

despite strong objections from a

minority of interested entities.

Indicated Shippers complain that the

Commission’s decision to permit a prefiling collaboration is not subject to

review, thus entities opposing a

collaboration are without recourse.

Commission Response

We stress that a pre-filing

collaboration will not be permitted to

commence unless we find that the

weight of opinions expressed by a

representative sample of interested

entities favor going forward. Where

support is insufficient, either because

only a small number of affected entities

endorse a pre-filing collaboration or

because key players refuse to

participate, we may decide pre-filing

collaboration is unlikely to prove

productive, and so deny the request.

We see no need to provide for any

review of a decision on a request to use

the pre-filing collaborative procedure. A

project sponsor that does not meet the

criteria for a pre-filing collaboration

under § 157.22 of the regulations may

nevertheless engage in pre-filing

consultations. If a request to collaborate

is approved despite an entity’s

objection, that entity’s recourse can be

to decline to participate in the

collaboration. As noted, absence from a

collaboration need not bar an entity

from bringing any question, concern, or

objection to the Commission’s attention

following filing of the application.

Entry Into an Ongoing Collaboration

If an entity becomes aware of an

ongoing collaboration and seeks to join

in, the collaborative regulations do not

prevent participation, but do require

that latecomers not delay or disrupt the

process and abide by any ground rules

that have already been established.

Indicated Shippers believe these

constraints are inequitable because the

latecomer may not have been aware of

the collaboration due to defective notice

on the part of the applicant and because

there is no assurance that the protocol

governing the collaboration will be

sufficient to allow the latecomer to

participate meaningfully. Further,

Indicated Shippers anticipate that

latecomers to an ongoing collaboration

could be precluded from revisiting old

or raising new issues, which may result

in a filed application that fails to fully

address all aspects of a proposed

project.

Commission Response

The notification procedures in place,

as modified herein, should prove

sufficient to ensure all potentially

interested entities are informed of the

applicant’s intent to undertake a prefiling procedure, the applicant’s request

to the Commission to do so,

Commission approval of the request, the

time and place of the initial information

meeting(s), and the expected scope of

the collaboration.

If, during the course of an ongoing

collaboration, the character of the

originally proposed project is altered

such that previously uninformed

entities are affected, we expect the

prospective applicant to contact those

entities to notify them of the ongoing

collaboration and invite them to

participate. For example, if a new

alternative routing is selected, the

applicant should promptly contact

landowners along the alternative route

and invite them to join in the ongoing

collaboration.

We expect adherence to a

communications protocol, the project

sponsor’s maintenance of public files,

and periodic reporting on a

collaboration’s progress to the

Commission, will permit an entity

entering an ongoing collaboration to be

promptly brought up to date. Where a

late-entering entity believes its concerns

have been inadequately addressed

despite its participation in the

collaboration, that entity may so state in

comments submitted to the Commission

after an application is filed. Such

comments will help ensure a full and

complete record is before the

Commission as it evaluates a proposed

project.

Issues Open to Discussion in a Pre-filing

Collaboration

Indicated Shippers renew their

request to limit the scope of a pre-filing

collaboration to environmental issues.

Indicated Shippers contend that because

environmental issues are ‘‘confined to a

well-defined geographic area,’’

consideration in a pre-filing

collaboration is a manageable

undertaking that may ‘‘constitute a

meaningful improvement’’ in the

certification process.13 However,

because non-environmental issues may

not be neatly bounded, Indicated

Shippers are concerned that pre-filing

discussion of such issues may be

impractical, as there may be large

numbers of potentially interested

entities involved, including an

applicant’s competitors. Indicated

Shippers assert inclusion of nonenvironmental issues will create

uncertainty and lead to discrimination.

Commission Response

In theory, participants in a pre-filing

collaboration can take up and reach a

comprehensive accord on all relevant

issues; in practice, this will not be the

case with every collaboration.

Nevertheless, we expect applications to

be more complete and less contentious

following pre-filing collaborations.

Additionally, we expect the post-filing

NEPA process may be completed in less

time than would be the case absent the

pre-filing collaboration. The regulations

are intended to permit the project

sponsor and participants to trim the

topics to be addressed to the interests of

the collaborative group; we do not

expect a collaboration to cover issues

that are unlikely to be productively

discussed. However, just as we see no

point in insisting on a collaborative

agenda that is all-inclusive, we see no

point in precluding particular topics

from discussion if the participants opt

to pursue them.

We recognize that prospects may be

dim for a collaboration to reach accord

on certain non-environmental issues.

Nevertheless, if the project sponsor and

participants anticipate that pre-filing

consideration of such issues may

advance the preparation of an

application, we see no reason to bar

their consideration as part of the prefiling collaborative process. An entity

that is not at the collaborative table

during discussions concerning such an

issue, or that objects to the collaborative

participants’ treatment of the issue, is

not precluded from commenting on the

issue following the filing of the

application. The Commission will

thoroughly review all comments and the

entire evidentiary record prior to taking

any action on the application. Thus, we

are not persuaded that the pre-filing

consideration of non-environmental

65756 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations

14 5 U.S.C. 551–557 and 18 CFR 385.604 and

385.2201. 15 5 CFR Part 1320. 16 5 U.S.C. 804(2).

issues by a collaborative group will

result in discrimination to any entity.

Participation of Commission Staff in a

Collaborative Procedure

In the final rule we stated that

Commission staff involved in a prefiling collaboration may participate in

post-filing review of an application.

Indicated Shippers renew their

objection to this possibility, contending

such involvement is contrary to

prohibitions against ex parte

communication.

Commission Response

The Commission’s ex parte

regulations are intended to avoid any

prejudice, real or apparent, that might

result to a party in a contested, on-therecord proceeding before the

Commission were a party or

‘‘interceder’’ to communicate

information regarding the merits to

decision-making (advisory) staff without

the knowledge of other parties.14 These

regulations do not apply to a pre-filing

collaboration because it does not

constitute an on-the-record proceeding

before the Commission. Such a

proceeding only commences upon

submission of an application to the

Commission. The Commission’s staff’s

role in a pre-filing collaboration, as

described above, is limited to

facilitating conversation and in assisting

in initiating the NEPA review process;

staff may, as they do now, provide

general procedural, statutory, and

regulatory guidance. However,

Commission staff will neither make any

determination regarding the merits of a

prospective applicant’s proposal nor

endorse or reject any collaborative

accords.

Indicated Shippers can make use of

the communications protocol to address

their concerns about private

communications with Commission staff

during the pre-filing process and to

establish a degree of disclosure that is

appropriate for communication between

collaborative participants and

Commission staff.

In view of the above, we affirm our

determination in the final rule that a

staff member’s participation in a prefiling discussion need not disqualify

that individual from serving in an

advisory role in a proceeding on an

application that is subsequently filed.

We stress that staff representations in

the pre-filing forum cannot in any way

bind the Commission, because the

Commission alone is responsible for

making all final decisions on the

application.

Information Collection Statement

The Office of Management and Budget

(OMB) is required to approve certain

information collection requirements

imposed by agency rule.15 This order on

rehearing clarifies the notice procedure

described in § 157.22(e)(1) of the

regulations and specifies a time frame

for the periodic reports described in

§ 157.22(e)(4) of the regulations. The

reporting burden imposed by the final

rule was previously reviewed and

approved by OMB and these minor

modifications make no substantive or

material change to the approved

requirements. As noted in the final rule,

due to the voluntary nature of a prefiling process, no burdens will be

imposed upon a project sponsor beyond

those it elects to take upon itself. We

will transmit to a copy of this order on

rehearing to OMB for its information.

Document Availability

In addition to publishing the full text

of this document in the Federal

Register, the Commission also provides

all interested persons an opportunity to

view and/or print the contents of this

document via the Internet through

FERC’s Home Page (http://

www.ferc.fed.us) and on FERC’s Public

Reference Room during normal business

hours (8:30 a.m. to 5:00 p.m. Eastern

time) as 888 First Street, NE., Room 2A,

Washington, DC 20426.

From FERC’s Home Page in the

Internet, this information is available in

both the Commission Issuance Posting

System (CIPS) and RIMS.

—CIPS provide access to texts of formal

documents issued by the Commission

since November 14, 1994.

—CIPS can be accessed using the CIPS

link or the Energy Information Online

icon. The full text of this document is

available on CIPS in ASCII and

WordPerfect 8 format for viewing,

printing, and/or downloading.

—RIMS contains images 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

from FERC’s Home Page using the

RIMS link or the Energy Information

Online icon. Descriptions of

documents back to November 16,

1981, are also available from RIMSon-the-Web; requests for copies of

these and other older documents

should be submitted to the Public

Reference Room.

User assistance is available for RIMS,

CIPS, and the FERC Website during

normal business hours from our Help

line at (202) 208–2222 (E-mail to

WebMaster@ferc.fed.us.) or the Public

Reference at (202) 208–1371 (E-Mail to

public.referenceroom@ferc.fed.us).

During normal business hours,

documents can also be viewed and/or

printed in FERC’s Public Reference

Room, where RIMS, CIPS, and the FERC

Website are available. User assistance is

also available.

For the reasons discussed in the body

of this order, we deny in part and grant

in part Indicated Shippers’ request for

rehearing of Order No. 608.

Effective Date

Changes to Order No. 608 made in

this order on rehearing will become

effective on December 4, 2000.

Prior to issuance of Order No. 608, the

Commission determined, with the

concurrence of the Administrator of the

Office of Information and Regulatory

Affairs of OMB, that the rule was not a

‘‘major rule’’ as defined in Section 251

of the Small Business Regulatory

Enforcement Fairness Act of 1996.16 We

affirm our prior determination, and find

that the final rule, as clarified and

modified herein, is not a major rule.

This order on rehearing will be

submitted to both houses of Congress,

the General Accounting Office, and

OMB for their information and records.

List of Subjects in 18 CFR Part 157

Administrative practice and

procedure, Natural gas, Reporting and

record keeping requirements.

By the Commission.

Linwood A. Watson, Jr.,

Acting Secretary.

In consideration of the foregoing, the

Commission amends Part 157, Title 18,

Code of Federal Regulations, as follows:

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

1. 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.

2. In § 157.22, paragraph (e)(1) is

revised; existing paragraphs (e)(5),

(e)(6), and (e)(7) are redesignated as

paragraphs (e)(6), (e)(7), and (e)(8),

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations 65757

1 42 U.S.C. 7178.

2This authority is in addition to that granted to

the Commission in sections 10(e) and 30(e) of the

Federal Power Act (FPA). 16 U.S.C. 803(e), 823a(e).

3 42 U.S.C. 7178(b).

4The Commission is required to collect not only

all its direct costs but also all its indirect expenses

such as hearing costs and indirect personnel costs.

See H.R. Conf. Rep. No. 99–1012 at 238 (1986),

reprinted in 1986 U.S.C.C.A.N. 3868, 3883

(Conference Report); see also S. Rep. No. 99–348 at

56, 66 and 68 (1986).

5See Conference Report at 238.

6 42 U.S.C. 7178(c).

respectively; and a new paragraph (e)(5)

is added, to read as follows:

§ 157.22 Collaborative procedures for

applications for certificates of public

convenience and necessity and for orders

permitting and approving abandonment.

* * * * *

(e) * * *

(1) The Commission will publish

notice of its authorization to use the prefiling process in the Federal Register;

the applicant will publish notice of the

Commission’s authorization to use the

pre-filing process in a local newspaper

of general circulation in the county or

counties in which the proposed project

is to be located. To the extent feasible,

the applicants’ notice will specify the

time and place of the initial information

meeting(s) and the scoping of

environmental issues and will be sent to

a mailing list approved by the

Commission that includes the names

and addresses of landowners affected by

the project.

* * * * *

(5) Every three 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

paragraph (e)(4), of this section 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.

* * * * *

[FR Doc. 00–28082 Filed 11–01–00; 8:45 am]

BILLING CODE 6717–01–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory

Commission

18 CFR Part 382

[Docket No. RM00–7–000; Order No. 641]

Revision of Annual Charges Assessed

to Public Utilities Issued October 26,

2000

AGENCY: Federal Energy Regulatory

Commission.

ACTION: Final Rule.

SUMMARY: In an effort to reflect changes

in the electric industry and in the way

the Federal Energy Regulatory

Commission (Commission) regulates the

electric industry, the Commission is

amending its regulations to establish a

new methodology for the assessment of

annual charges to public utilities. The

regulation provides that annual charges

will be assessed to public utilities that

provide transmission service based on

the volume of electricity transmitted by

those public utilities. The regulation

thus will result in the Commission’s

now assessing annual charges on

transmission rather than, as previously,

assessing annual charges on both power

sales and transmission.

EFFECTIVE DATE: This Final Rule will

become effective January 1, 2001.

FOR FURTHER INFORMATION CONTACT:

Herman Dalgetty (Technical

Information), Office of the Executive

Director and Chief Financial Officer,

888 First Street, N.E., Washington, D.C.

20426, (202) 219–2918.

Jennifer Lokenvitz Schwitzer (Legal

Information), Office of the General

Counsel, 888 First Street, N.E.,

Washington, D.C. 20426, (202) 219–4471

SUPPLEMENTARY INFORMATION: Before

Commissioners: James J. Hoecker,

Chairman; William L. Massey, Linda

Breathitt, and Curt He ́bert, Jr.

Table of Contents

I. Introduction

II. Background

A. Commission Authority

B. Current Annual Charge Billing

Procedure

C. Reasons for this Rule

D. Notice of Proposed Rulemaking

III. Discussion

A. The Types of Companies to be Billed

1. Public Utilities

2. Federal Power Marketing Agencies

3. Qualifying Facilities

4. Discussion

a. Proposed New Methodology

b. Comments

c. Commission Conclusion

B. New Apportionment

1. Proposed New Methodology

2. Comments

3. Commission Conclusion

4. Independent System Operators and

Regional Transmission Organizations

a. Proposed New Methodology

b. Comments

c. Commission Conclusion

C. Other Matters

1. Rate Recovery

2. Reporting Requirements

3. Standards for Waiving All or Part of an

Annual Charge

IV. Environmental Statement

V. Regulatory Flexibility Act Certification

VI. Public Reporting Burden and Information

Collection Statement

VII. Effective Date and Congressional

Notification

VIII. Document Availability

Regulatory Text

List of Abbreviations

I. Introduction

In an effort to reflect changes in the

electric industry and in the way the

Federal Energy Regulatory Commission

(Commission) regulates the electric

industry, the Commission is amending

its regulations to establish a new

methodology for the assessment of

annual charges to public utilities. The

regulation provides that annual charges

will be assessed to public utilities that

provide transmission service based on

the volume of electricity transmitted by

those public utilities. The regulation

thus will result in the Commission’s

now assessing annual charges on

transmission rather than, as previously,

assessing annual charges on both power

sales and transmission.

II. Background

A. Commission Authority

The Commission is required by

section 3401 of the Omnibus Budget

Reconciliation Act of 1986 (Budget

Act) 1 to ‘‘assess and collect fees and

annual charges in any fiscal year in

amounts equal to all of the costs

incurred * * * in that fiscal year.’’ 2

The annual charges must be computed

based on methods which the

Commission determines to be ‘‘fair and

equitable.’’ 3 The Conference Report

accompanying the Budget Act provides

the Commission with the following

guidance as to this phrase’s meaning:

[A]nnual charges assessed during a fiscal

year on any person may be reasonably based

on the following factors: (1) The type of

Commission regulation which applies to

such person such as a gas pipeline or electric

utility regulation; (2) the total direct and

indirect costs of that type of Commission

regulation incurred during such year; 4 (3) the

amount of energy—electricity, natural gas, or

oil—transported or sold subject to

Commission regulation by such person

during such year; and (4) the total volume of

all energy transported or sold subject to

Commission regulation by all similarly

situated persons during such year.5

The Commission may assess these

charges by making estimates based upon

data available to it at the time of the

assessment.6

The annual charges do not enable the

Commission to collect amounts in

excess of its expenses, but merely serve

as a vehicle to reimburse the United