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[Federal Register Volume 70, Number 200 (Tuesday, October 18, 2005)]
[Rules and Regulations]
[Pages 60426-60443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20653]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 153, 157 and 375

[Docket No. RM05-31-000; Order No. 665]

Regulations Implementing Energy Policy Act of 2005; Pre-Filing 
Procedures for Review of LNG Terminals and Other Natural Gas Facilities

Issued October 7, 2005.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) is 
amending its regulations in accordance with section 311(d) of the 
Energy Policy Act of 2005 (EPAct 2005) to establish mandatory 
procedures requiring prospective applicants to begin the Commission's 
pre-filing review process at least six months prior to filing an 
application for authorization to site and construct a liquefied natural 
gas (LNG) terminal. Section 311(d) of EPAct 2005, enacted on August 8, 
2005, directs the Commission to promulgate such regulations within 60 
days after enactment of EPAct 2005. The regulations' mandatory 
procedures are designed to encourage applicants for LNG terminal siting 
and construction authority to cooperate with state and local officials, 
as required by EPAct 2005. The regulations also make the pre-filing 
process mandatory for prospective applicants for authority to construct 
related jurisdictional pipeline and other natural gas facilities, as 
defined in the regulations. The regulations also require a prospective 
applicant to comply with the pre-filing procedures prior to filing an 
application to make modifications to an existing or authorized LNG 
terminal if such modifications involve significant state and local 
safety considerations that have not been previously addressed. Under 
this Final Rule, prospective applicants may elect on a voluntary basis 
to undertake the pre-filing process prior to filing applications for 
other facilities subject to the Commission's jurisdiction under the 
Natural Gas Act (NGA).

EFFECTIVE DATE: The rule will become effective November 17, 2005.

FOR FURTHER INFORMATION CONTACT:

Richard Hoffmann, Office of Energy Projects, 888 First Street, NE., 
Washington, DC 20426, (202) 502-8066, [email protected].
John Leiss, Office of Energy Projects, 888 First Street, NE., 
Washington, DC 20426, (202) 502-8058, [email protected].
Whit Holden, Office of the General Counsel, Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426, (202) 502-
8089, [email protected].

SUPPLEMENTARY INFORMATION:

Before Commissioners: Joseph T. Kelliher, Chairman; Nora Mead 
Brownell, and Suedeen G. Kelly.

I. Introduction

    1. Pursuant to section 311(d) of the Energy Policy Act of 2005 
(EPAct 2005),\1\ enacted on August 8, 2005, the Commission is required, 
by October 7, 2005, to promulgate regulations requiring prospective 
applicants for authorization for the siting and construction of 
liquefied natural gas (LNG) terminals (as defined in EPAct 2005) to 
comply with the Commission's pre-filing review process, beginning at 
least six months prior to filing an application. As further required by 
EPAct 2005, the proposed regulations are designed to encourage 
applicants to cooperate with state and local officials, a goal also 
contemplated by the National Environmental Policy Act of 1969 
(NEPA).\2\ This Final Rule fulfills the Commission's responsibilities 
under section 311(d) of EPAct 2005.
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    \1\ Public Law 109-58, 119 Stat. 594.
    \2\ 42 U.S.C. 4321, et seq.
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    2. The mandatory procedures established in this Final Rule require 
that a prospective applicant for authority to site and construct an LNG 
terminal submit information necessary for NEPA pre-filing review of the 
LNG terminal, as defined in EPAct 2005. A prospective applicant for 
authority to construct related jurisdictional pipeline and other 
natural gas facilities, as defined in the regulations, is also required 
to undertake the mandatory pre-filing review process. A prospective 
applicant is also required to comply with the pre-filing procedures 
prior to filing an application to make modifications to an existing LNG 
terminal if such modifications involve significant state and local 
safety considerations that have not been previously addressed. This 
Final Rule provides that prospective applicants may elect on a 
voluntary basis to undertake the pre-filing process prior to filing 
applications for other facilities subject to the Commission's 
jurisdiction under the Natural Gas Act (NGA).

II. Notice of Proposed Rulemaking

    3. In response to EPAct 2005's directive with respect to LNG 
terminals, the Commission issued a Notice of Proposed Rulemaking (NOPR) 
on August 26, 2005, in Docket No. RM05-31-000 setting forth proposed 
regulations to implement a mandatory pre-filing process for prospective 
applicants for authority under section 3 of the NGA for the siting and 
construction of new LNG terminals.\3\ As explained in the NOPR, it was 
already the Commission's policy prior to enactment of EPAct 2005 to 
encourage prospective applicants' use of the Commission's optional pre-
filing process for LNG terminal projects, as well as interstate gas 
pipeline projects in appropriate cases, to encourage early involvement 
by the public and governmental agencies, as contemplated by NEPA and 
Council on Environmental Quality (CEQ) regulations. Further, because it 
is desirable to maximize early public involvement to promote the wide-
spread dissemination of information about proposed projects and to 
reduce the amount of time required to issue an environmental impact 
statement (EIS) or environmental assessment (EA) once an application is 
filed, the Commission's Office of Energy Projects (OEP) developed its 
current guidelines for going beyond informal discussions into a more 
formal pre-filing process.\4\
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    \3\ 112 FERC ] 61,232 (2005); 70 FR 52328 (September 2, 2005).
    \4\ Under the Commission's optional pre-filing process, the 
Commission's staff provides prospective applicants guidelines which 
are described at length in the NOPR. As explained in the NOPR, the 
current guidelines were developed because in certain respects the 
collaborative pre-filing procedures set forth in section 157.22 of 
the Commission's regulations, 18 CFR 157.22 (2005), have proven to 
be impracticable. Therefore, as proposed in the NOPR, the Commission 
is eliminating the collaborative process procedures of section 
157.22 in conjunction with the promulgation of new regulations in 
this rulemaking proceeding.
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    4. As explained in the NOPR, the Commission's experience with the 
current pre-filing process is that it has been used with much success 
since its introduction several years ago. It is a process with which 
the natural gas industry, governmental entities and the public are 
familiar. However, the current pre-filing process is optional, and 
EPAct 2005 requires that the Commission implement a mandatory, rather 
than elective, pre-filing process

[[Page 60427]]

for review of a planned LNG terminal prior to the filing of an 
application pursuant to section 3 of the NGA for authorization of the 
siting and construction of the new LNG terminal. Therefore, the 
Commission's NOPR used the existing guidelines as the basis for 
proposing regulations to establish the mandatory pre-filing process for 
new LNG terminals.
    5. Although EPAct 2005 requires a mandatory pre-filing process only 
for prospective applicants for new LNG terminals, the Commission must 
consider in one NEPA document the environmental impacts of the LNG 
terminal and related facilities. Therefore, the Commission also 
proposed in the NOPR to make the mandatory pre-filing process 
applicable to prospective applicants for authority to construct related 
jurisdictional pipeline and other natural gas facilities. Further, in 
recognition that the safety concerns raised by modifications to 
existing LNG terminals in some instances can be largely the same as 
those addressed by EPAct 2005's provisions relating to the siting and 
construction of new LNG terminals, the Commission proposed in the NOPR 
to make the pre-filing process mandatory in those instances as well.

III. Comments

    6. The NOPR stated that comments were to be filed by September 14, 
2005, and that the Commission intended to issue final regulations by 
October 7, 2005, in order to comply with EPAct 2005's 60-day deadline. 
Comments were filed by 24 interested parties.\5\
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    \5\ The commenters are listed in the Appendix to this Final 
Rule.
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    7. The largest group of commenters consists of current and 
prospective owners, operators and developers of LNG terminal 
facilities. Another group is comprised of natural gas pipeline 
companies. A third definable group includes the Public Utilities 
Commission of the State of California (California PUC), the California 
Energy Commission and the Office of the Governor of the State of Maine 
(Maine Governor's Office), all representing state and local interests. 
The Interstate Natural Gas Association of America (INGAA), American Gas 
Association (AGA), Maryland Conservation Council, Center for Liquefied 
Natural Gas (Center for LNG) and National Association of Regulatory 
Utility Commissioners (NARUC) also submitted comments in line with 
their respective interests.
    8. The comments filed in response to the NOPR are discussed at 
length below, broken down by specific issues. Broadly speaking, 
however, the comments primarily focused on the NOPR's proposal that the 
pre-filing process also be mandatory for prospective applicants for 
authorization of other jurisdictional natural gas facilities necessary 
to transport regasified LNG from an LNG terminal and for prospective 
applicants for authorization of modifications to existing LNG 
terminals; the need for flexibility in the substance and timing of many 
of the pre-filing requirements; and implementation of EPAct 2005's 
directive that the mandatory pre-filing process for new LNG terminals 
encourage prospective applicants' cooperation with state and local 
officials. Numerous clarifications of the proposed regulations were 
also requested.

Related Jurisdictional Pipeline Facilities

    9. El Paso Pipeline Corporation Pipeline Group (El Paso),\6\ Exxon 
Mobil Corporation (ExxonMobil), Dominion Cove Point LNG, LP (Cove 
Point), Cheniere LNG, Inc. (Cheniere), Duke Energy Gas Transmission 
(Duke Energy),\7\ and INGAA state that the NOPR's proposal that the 
mandatory pre-filing procedures apply to prospective applicants for 
authorization for jurisdictional natural gas facilities related to LNG 
terminals is inconsistent with, if not contrary to, the mandate of 
Congress as expressed in section 311(d) of EPAct 2005. These commenters 
point out that EPAct 2005's definition of an LNG terminal specifically 
excludes ``any pipeline or storage facility subject to the jurisdiction 
of the Commission under section 7 [of the NGA].'' \8\
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    \6\ The El Paso Pipeline Corporation Group includes ANR Pipeline 
Company, ANR Storage Company, Bear Creek Storage Company, Blue Lake 
Gas Storage Company, Cheyenne Plains Gas Pipeline Company, Colorado 
Interstate Gas Company, El Paso Natural Gas Company, Mojave Pipeline 
Company, Southern LNG Inc., Southern Natural Gas Company, Tennessee 
Gas Pipeline Company and Wyoming Interstate Company, Ltd.
    \7\ Duke Energy owns Texas Eastern Transmission, L.P., Egan Hub 
Storage, L.L.C., Algonquin Gas Transmission, L.L.C., East Tennessee 
Natural Gas, L.L.C. and Saltville Gas Storage Company, L.L.C. Duke 
Energy is a part owner of Maritimes & Northeast Pipeline, L.L.C. and 
Gulfstream Natural Gas System, L.L.C.
    \8\ EPAct 2005, section 311(b).
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    10. ExxonMobil asserts that requiring prospective applicants for 
related pipeline facilities to undergo a mandatory ``180-day stand-down 
period'' could prevent the timely expansion of the related LNG project. 
El Paso contends that the establishment of a minimum six-month pre-
filing process for such facilities is inconsistent with the notion of 
flexibility. Similarly, Duke Energy contends that because LNG terminal 
proposals have longer lead times, a rigid, six-month pre-filing process 
for some related pipeline projects will be inappropriate and 
unworkable.
    11. Duke Energy also argues that extending the mandatory pre-filing 
process to prospective applicants for construction authorization under 
section 7 of the NGA is inconsistent with that section, since section 7 
does not place any qualifications on when a natural gas company may 
file a certificate application. Duke Energy and Cove Point take the 
position that the Commission's authority pursuant to EPAct 2005 to 
compel a pre-filing process for pipeline facilities is limited to 
pipeline facilities which are properly viewed as part of the LNG 
terminal and for which authorization must be obtained under section 3, 
rather than section 7, of the NGA. Sempra Global argues that the public 
interest could be harmed by delaying the construction of other gas 
facilities needed to serve other customers.
    12. ExxonMobil and Duke Energy contend that while the Commission 
may be required to evaluate the impacts of both the LNG terminal and 
related natural gas facilities in a single NEPA document, it does not 
follow that both the LNG terminal project and a related pipeline 
project must initiate their respective environmental review processes 
at the same time or follow the same procedures for developing and 
submitting all of the information necessary to prepare the EA or EIS.
    13. A number of commenters seek clarification of the types of LNG-
related pipeline projects that might be subject to the mandatory pre-
filing procedures. At a minimum, Cove Point asks the Commission to 
clarify that applicability of the mandatory pre-filing process extends 
only to pipeline construction to be undertaken contemporaneously with 
construction or expansion of an LNG terminal. North Baja Pipeline, LLC 
(North Baja) maintains that the Commission should clarify that the 
mandatory pre-filing process will apply only to other natural gas 
facilities that will interconnect directly with a new LNG terminal.
    14. BP Energy asks the Commission to clarify that the pre-filing 
requirement will be satisfied for minor pipeline facilities to 
interconnect with a new LNG terminal if the interconnecting pipeline 
facilities are addressed sufficiently in the LNG project developer's 
resource reports for purposes of the NEPA document. BP Energy does not 
believe a pipeline company should have to undertake the pre-filing 
process for minor interconnecting facilities if adequate

[[Page 60428]]

information regarding the pipeline facilities is provided by the 
prospective LNG applicant during the pre-filing process.
    15. Duke Power requests clarification that the pre-filing process 
will not be mandatory for prospective applicants for NGA section 7 
authority for capacity expansion projects on existing pipeline systems 
in order to accommodate throughput originating from a new LNG terminal. 
INGAA maintains the Commission should clarify that applicants seeking 
to modify existing pipeline facilities related to existing LNG 
facilities may continue to use the pre-filing process on a voluntary 
basis.

Commission Response

    16. The Commission recognizes that the definition of ``LNG 
terminal'' adopted by EPAct 2005 specifically excludes ``[a]ny pipeline 
or storage facility subject to the jurisdiction of the Commission under 
section 7 of the Natural Gas Act.'' However, the Commission does not 
agree that this is an expression of Congressional intent that the 
Commission cannot or should not require a mandatory pre-filing process 
for jurisdictional gas facilities to be constructed in connection with 
LNG terminal facilities. Rather, the Commission believes the exclusion 
of section 7 facilities from EPAct 2005's definition of LNG terminal is 
better explained by other practical considerations. First, take-away 
pipelines or other related gas facilities do not involve the state and 
local safety concerns involved with the siting and construction of an 
LNG terminal. In addition, the exclusion of section 7 facilities from 
the definition of LNG terminal avoids making section 7 facilities 
subject to the provisions of new NGA section 3(e)(3)(B), added by 
section 311(c) of EPAct 2005, which provides that the Commission (1) 
shall not deny an LNG terminal application because the applicant 
proposes to use the LNG terminal exclusively or partially for its own 
gas or an affiliate's gas, and (2) shall not condition an order to 
require that an LNG terminal offer service to other customers or to 
regulate the rates or terms of service of the LNG terminal or to 
require the filing of rate schedules or contracts. In view of these 
considerations, the Commission concludes that, while EPAct 2005 
mandates the pre-filing process only for prospective applicants for 
authority to site and construct new LNG terminals, nothing in EPAct 
2005 limits the Commission's previous discretion under the NGA to 
require participation in the pre-filing process by prospective 
applicants for authority under section 7 of the NGA for related 
jurisdictional natural gas facilities.
    17. The Commission has discussed above and in the NOPR that it 
needs to evaluate in a single NEPA document the environmental impacts 
of LNG projects and projects to construct related facilities. Further, 
an LNG project may prove infeasible if a take-away pipeline or other 
facilities cannot be approved or will not be constructed. Thus, to 
ensure the efficient utilization of the Commission's resources as well 
as to avoid unnecessary burden on other agencies and stakeholders, it 
has been Commission staff's practice to initiate the pre-filing process 
for new LNG facilities only when the prospective applicants for other 
necessary jurisdictional facilities are ready and willing to 
participate in the pre-filing process. For the same reasons, it is 
appropriate to make the pre-filing process mandatory for related 
jurisdictional facilities now that Congress has mandated a pre-filing 
process for new LNG terminals.\9\
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    \9\ On some occasions, it is necessary for the NEPA document to 
evaluate the environmental impacts of related facilities which will 
be non-jurisdictional facilities. The Commission applies a four-
prong procedure to determine the need to include non-jurisdictional 
facilities in an environmental review. See, e.g., Southern Natural 
Gas Company, 119 FERC ] 61,052 at P 80 (2005). The necessary 
analysis of non-jurisdictional facilities may depend on the 
jurisdictional applicant's ability to provide sufficient 
information, since the Commission does not have the authority to 
compel non-jurisdictional companies' participation in the pre-filing 
process. However, the Commission does have the discretion to adopt 
and implement a policy to facilitate environmental review of an LNG 
project by establishing regulations under which an application for 
related jurisdictional facilities may be deemed deficient if the 
applicant did not participate in the pre-filing process.
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    18. To date, in every LNG project that has utilized the formal pre-
filing process, the Commission's staff has required that the pre-filing 
process cover any related jurisdictional natural gas facilities. The 
Commission also reiterates that in its experience the current practice 
has been very successful, and there is a sense of familiarity with the 
process. Indeed, the Commission has seen no evidence that requiring the 
environmental analysis for an LNG terminal project to cover related 
pipeline facilities has impeded the timetable for the LNG terminal, 
regardless of whether the environmental review for the entire project 
was conducted during a pre-filing process or after the filing of an LNG 
terminal application.
    19. In view of the above considerations, the Commission is not 
swayed by arguments that is inappropriate or infeasible to require that 
the mandatory pre-filing procedures require the participation of 
prospective applicants for related jurisdictional gas facilities. The 
prospective applicants for authority to construct necessary related 
facilities generally are known at the time a prospective LNG applicant 
initiates the pre-filing process. Therefore, the prospective LNG 
applicant and the prospective applicants for other related facilities 
should be able to commence the pre-filing process at the same time. 
Further, in view of the above-discussed reasons for why it is important 
that prospective applicants for LNG and related projects undertake the 
pre-filing process at the same time, the Commission expects there to be 
few instances where the circumstances justify the exercise of the 
Director's discretion to approve initiation of the pre-filing process 
for an LNG terminal project before the prospective applicants for 
related facilities are known and ready to begin the pre-filing process.
    20. The Commission agrees with the commenters, however, that it is 
important to maintain flexibility in both the substantive and 
procedural requirements embodied in the pre-filing procedures. 
Therefore, as proposed in the NOPR, the Commission is providing in new 
section 375.308(z) of the regulations authority for the Director to 
act, on a case-specific basis, to make decisions and grant approvals, 
waivers and modifications, as well as issue guidance, as may be 
necessary in connection with the use of the pre-filing procedures set 
forth new in section 157.21. Thus, for example, a prospective applicant 
engaged in the pre-filing process for either LNG facilities or other 
facilities may request that the Director adjust the schedule for filing 
resources report or waive certain requirements if they are not 
applicable or unnecessary in view of the previously filed information.
    21. In response to those commenters seeking clarification of the 
types of projects for natural gas facilities related to LNG facilities 
which will be subject to the mandatory pre-filing procedures, the 
Commission is providing a definition in section 153.2, Definitions, in 
Part 153, Applications for Authorization to Construct, Operate, or 
Modiy Facilities used for the Export or Import of Natural Gas. The 
definition provides:
    (e) For purposes of this part and section 157.21, related 
jurisdictional natural gas facilities means any pipeline or other 
natural gas facilities which are subject to section 7 of the NGA; will 
directly interconnect with the facilities of an LNG terminal, as 
defined in paragraph (d) of this section; and which

[[Page 60429]]

are necessary to transport gas to or regasified LNG from:
    (1) A planned but not yet authorized LNG terminal; or
    (2) An existing or authorized LNG terminal for which prospective 
modifications are subject pursuant to section 157.21(e) to a mandatory 
pre-filing process.
    22. This definition clarifies that for facilities related to LNG 
facilities the mandatory pre-filing process will be mandatory only for 
prospective applicants for authority under section 7 of the NGA for the 
construction or expansion of the capacity of gas facilities directly 
interconnecting with and related to the construction or expansion of an 
LNG terminal to import or export LNG. Thus, for example, if a take-away 
pipeline that directly interconnects with an existing LNG import 
terminal plans to seek authority under section 7 of the NGA to increase 
the pipeline's capacity, the pre-filing process will be mandatory for 
the pipeline's expansion project if it is related to a project to 
expand the LNG terminal's capacity. In the event additional capacity is 
needed on an existing take-away pipeline because the LNG terminal 
operator determines that it can increase its send-out volumes without 
making any modifications to its existing LNG facilities, the pre-filing 
process would not be a mandatory prerequisite to the Commission's 
approval of an application by the pipeline for expansion authority 
under section 7 of the NGA. However, the Commission encourages 
pipelines to consider in all instances whether undertaking the pre-
filing process voluntarily might expedite approval of a contemplated 
project to expand the capacity of the pipeline's facilities that are 
directly interconnected with an LNG terminal.
    23. In response to the request for clarification regarding 
``minor'' interconnecting pipeline facilities, the Commission clarifies 
that the pre-filing requirement will be mandatory for prospective 
applicants for construction authority under section 7 of the NGA to 
construct pipeline facilities that will directly interconnect with a 
new LNG terminal. However, as discussed above, the Director OEP may 
find it appropriate to waive certain filing requirements for a 
prospective applicant for such related pipeline facilities to the 
extent the requirements are unnecessary or the information provided by 
the prospective LNG terminal applicant in its resource reports is 
adequate to cover the related pipeline facilities in the NEPA document.
    24. If a pipeline plans to seek construction authority under 
section 7 of the NGA to construct a new direct interconnection with an 
existing LNG terminal,\10\ the LNG terminal operator will need to seek 
authority under section 3 of the NGA to modify its LNG facilities to 
accommodate the new pipeline interconnection. In such instances, it 
will be necessary for the LNG terminal operator to obtain a finding by 
the Director of OEP as to whether the proposed modifications to the LNG 
facilities involve significant safety considerations warranting 
invocation of the mandatory pre-filing procedures. If the Director 
finds that the mandatory process should apply, it will be necessary for 
the prospective pipeline applicant for the direct interconnection to 
participate in the pre-filing process. Again, however, the Director may 
determine, based on the LNG project developer's resource reports and 
any other information in the record, that certain filing or other 
requirements can be waived for the prospective pipeline applicant 
seeking to construct the direct interconnection with the LNG terminal.
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    \10\ As several commenters point out, pipeline facilities 
directly interconnecting with an LNG terminal in order to receive 
regasified LNG are excluded from the definition of ``eligible 
facilities'' for purposes of an interstate pipeline's Part 157 
blanket certificate authorizing certain construction activities. See 
18 CFR 157.202(b)(2)(ii)(D) (2005).
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Modifications to Existing LNG Terminal Facilities

    25. The NOPR's proposed new section 157.21(a) provided that the 
mandatory pre-filing procedures shall apply: When the Director of OEP 
finds in accordance with paragraph (e)(2) of this section that 
prospective modifications to an existing LNG terminal are significant 
modifications that involve state and local safety considerations.
    26. Proposed section 157.21(e)(2) provided: The Director shall 
issue a notice making a determination whether prospective modifications 
to an existing LNG terminal shall be subject to this section's pre-
filing procedures and review process. If the Director determines that 
the prospective modifications are significant modifications that 
involve state and local safety considerations, the Director's notice 
will state that the pre-filing procedures shall apply, and the pre-
filing process shall be deemed to have commenced on the date of the 
Director's notice in determining whether the date an application is 
filed is at least 180 days after commencement of the pre-filing 
process.
    27. ExxonMobil, Cove Point, Cheniere and the Center for LNG state 
that the NOPR's requirement that the mandatory pre-filing procedures 
apply to ``significant'' modifications to existing LNG terminals is 
inconsistent with, if not contrary to, the mandate of Congress as 
expressed in EPAct 2005. These commenters assert that section 311(d) of 
EPAct 2005 clearly reflects Congress' intent that the mandatory 
procedures should apply only to the siting and construction of new LNG 
terminals.
    28. ExxonMobil, Cove Point and Distrigas of Massachusetts LLC 
(DOMAC) express concern because ``significant modifications involving 
state and local safety considerations'' are not defined and the 
criteria by which the Director would assess any modifications are not 
clearly set out. DOMAC believes the Director of OEP is given too much 
discretion.
    29. Cove Point asserts that state and local safety considerations 
are not useful criteria, since they are involved, to some extent, in 
virtually all LNG terminal applications. ExxonMobil emphasizes that the 
role of local and state safety officials is not clearly explained and 
argues that under EPAct 2005 section 311(d), considerations regarding 
the need for consultation on safety issues only come into play for new 
LNG terminals. ExxonMobil also claims that when dealing with 
modifications to existing LNG facilities or to LNG facilities approved 
but not yet constructed, the need for resubmission of all 13 resource 
reports originally filed by the applicant is questionable, since not 
all of the resource reports deal with safety issues.
    30. DOMAC states that the regulations should include the specific 
guidelines to be used by the Director in making determinations 
regarding whether modifications to an existing LNG terminal will be 
subject to a mandatory pre-filing process. ExxonMobil asserts that the 
NOPR's mandatory 180-day stand-down period for significant 
modifications could interfere with timely approval of an expansion of 
the capacity of an already approved but unconstructed LNG project. Cove 
Point and other commenters emphasize that modifications at existing LNG 
terminals generally involve relatively less environmental impact and 
shorter time periods.
    31. Cove Point adds that if the Commission maintains the 
requirement that significant modifications follow the mandatory pre-
filing process, then prospective applicants should be permitted to 
submit draft EAs. ExxonMobil argues that if Commission retains this 
requirement, the regulations

[[Page 60430]]

should clearly provide that only new safety issues being raised for the 
first time will justify requiring another pre-filing process for 
existing and approved LNG projects.
    32. DOMAC believes that modifications should be deemed significant 
only if they are primarily intended to significantly increase an 
existing LNG terminal's throughput capacity on a sustained basis. As a 
threshold, DOMAC suggests that the prospective modifications result in 
at least a 10 percent increase in annual throughput to warrant 
requiring an existing LNG terminal operator to undertake a 6-month pre-
filing process before it can file an application. Similarly, Trunkline 
LNG Company, L.L.C. (Trunkline LNG) requests that the Commission 
clarify that the mandatory pre-filing process will not be required for 
modifications to existing LNG terminals unless the current storage or 
send out capability is significantly increased.
    33. El Paso requests that the final regulations set forth certain 
modifications to existing LNG terminals which it asserts involve no 
significant impacts or state and local safety concerns and therefore 
should qualify as categorical exclusions because there is no need for 
an EA. Specifically, El Paso recommends that categorical exclusions be 
codified for miscellaneous rearrangement and replacement of facilities 
at existing LNG terminals; new facilities installed within an existing 
structure at an existing LNG terminal; and new facilities installed 
within an existing disturbed area and with an estimated cost ceiling 
under the current cost ceiling for activities under pipelines' Part 157 
blanket certificates.
    34. In order to prevent 6-month delays of simple modifications to 
LNG projects that are already approved but not yet constructed, Sempra 
Global contends the Commission should clarify that modifications 
appearing to simply require a supplemental EA should not be deemed to 
be ``significant.'' Moreover, Sempra Global suggests that the pre-
filing process regulations should provide that proposed projects be 
allowed to exit the pre-filing process before the end of six months if 
the Director subsequently determines that the proposal appears to 
require no more than an EA.

Commission Response

    35. As discussed, proposed section 157.21(a) provided that in 
addition to new LNG terminals and related jurisdictional natural gas 
facilities, the mandatory pre-filing procedures would apply to any 
modifications of existing LNG facilities that the Director finds to be 
``significant modifications that involve state and local safety 
considerations.'' After considering the comments seeking clarification 
of that provision or an explanation of the criteria by which the 
Director will evaluate any prospective modification, the Commission 
agrees the proposed regulatory text needs to be revised.
    36. A more precise description of the sort of modifications that 
the Commission intends to be subject to the mandatory pre-filing 
process is ``modifications that involve significant state and local 
safety considerations that have not been previously addressed.'' The 
regulatory text in this Final Rule is revised accordingly. It should be 
clear from this revision that, when dealing with prospective 
modifications to existing or approved LNG projects, the emphasis is not 
on the nature or scale of the modification itself, but rather the 
significance or scale of the modification's impact on state or local 
safety considerations.
    37. As discussed above, the Commission recognizes that section 
311(d) of EPAct 2005 mandates the minimum 6-month pre-filing process 
only in connection with applications for the siting, construction and 
operation of new LNG facilities. However, as in the case of related 
jurisdictional natural gas facilities, nothing in EPAct 2005 or the NGA 
in any way limits the Commission's authority to include within the 
purview of the mandatory pre-filing rules modifications to an existing 
or approved LNG terminal that involve significant state and local 
safety considerations that have not been previously addressed.
    38. Further, section 311(d) of EPAct 2005 adds a new section 3A(b) 
to the NGA which defines state and local safety considerations to 
include: (1) The kind and use of the facility; (2) the existing and 
projected population and demographic characteristics of the location; 
(3) the existing and proposed land use near the location; (4) the 
natural and physical aspects of the location; (5) the emergency 
response capabilities near the facility location; and (6) the need to 
encourage remote siting. Although not all of these factors may have 
application to a given project to make prospective modifications to an 
existing or approved LNG terminal, they provide the Director with 
specific criteria for evaluating any proposed modifications.\11\
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    \11\ Section 385.1902(a) of the Commission's regulations, 18 CFR 
385.1902(a) (2005), provides that any action by the Director under 
delegated authority is a final agency action subject to a request 
for rehearing under Rule 713 of the Commission's Rules of Practice 
and Procedure, 18 CFR 385.713 (2005). Thus, in any instance where 
the Director finds that prospective modifications at an existing LNG 
terminal does or does not involve significant state or local safety 
concerns warranting a requirement that the prospective applicant 
undertake the pre-filing process, the Director's finding would be 
subject to a request for rehearing by the Commission.
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    39. In addition, in section 157.21(e)(2) of the final regulations, 
the Commission has identified certain prospective modifications that 
will be subject to the mandatory pre-filing process. As examples, the 
new regulatory text cites the addition of LNG storage tanks; increased 
throughput which will require additional tanker arrivals or the use of 
larger vessels; and changing the purpose of the facility from peaking 
to base load.
    40. In any instance where the Director determines that proposed 
modifications warrant application of the mandatory pre-filing 
procedures, the Director can determine during the informal consultation 
required under paragraph 157.21(c) if an applicant-prepared EA will be 
appropriate.
    41. In view of the clarification and regulatory text revisions 
discussed above, the Commission does not believe that it is necessary 
to include in the final regulations additional criteria or definitions 
for the Director's use in reaching a determination whether prospective 
modifications to an existing or approved LNG terminal should be subject 
to a mandatory pre-filing process. However, the Commission believes 
that it may be possible in the future to identify modifications to 
existing or approved LNG terminals that can be categorically excluded, 
as suggested by some commenters, from the need for an environmental 
assessment and the scope of the mandatory pre-filing procedures. It 
also may be possible in the future to adopt regulations, as suggested 
by a number of commenters, to provide blanket authority for LNG 
terminal operators to undertake certain routine activities subject to 
standard environmental conditions, as pipelines can under their Part 
157 blanket certificates. However, in order to undertake any such 
initiatives, the Commission first needs the benefit of the experience 
that will come with application of this Final Rule's procedures.

Prospective Applicants Already Engaged in the Pre-Filing Process

    42. Broadwater Energy (Broadwater) and North Baja ask that the 
Commission clarify in the final rule that the mandatory pre-filing 
process regulations are to be implemented prospectively and shall not 
apply to prospective

[[Page 60431]]

applicants for LNG projects already engaged in the voluntary pre-filing 
process prior to the effective date of the pre-filing process 
regulations.

Commission Response

    43. The Commission denies Broadwater's and North Baja's requested 
clarification. New section 3A(a) of the NGA, as added by section 311(d) 
of EPAct 2005, provides that the Commission's ``regulations shall 
require that the pre-filing process commence at least 6 months prior to 
the filing of an application for authorization to construct an LNG 
terminal * * *.'' In any case where a prospective applicant for 
authority to site and construct a new LNG terminal was already engaged 
in the Commission's pre-filing process on the date of enactment of 
EPAct 2005, the Commission believes that it is consistent with 
Congressional intent to require at least a 6-month pre-filing process 
to ensure that there has been opportunity for the thorough exploration 
of state and local safety considerations, as envisioned by the section 
311 of EPAct 2005. However, the Commission does not believe that it is 
inconsistent with this objective to take into account the time which a 
prospective applicant has already been involved in the pre-filing 
process. Therefore, the Commission will consider the 6-month period to 
have begun on the date on which the prospective applicant for authority 
to site and construct a new LNG terminal or related facilities was 
authorized to engage in the pre-filing process.

Jurisdiction Over Facilities Used To ``Process'' Gas

    44. Trunkline LNG and INGAA request the Commission to clarify that 
it is not seeking through the LNG pre-filing process regulations to 
assert jurisdiction over the processing of natural gas. This 
clarification request is spurred by the fact that EPAct 2005 defines 
``LNG terminal'' to include all natural gas facilities that are used to 
``process'' natural gas.\12\ According to Trunkline LNG and INGAA, the 
intent of Congress, in including as part of an LNG terminal those 
facilities that process gas, was to describe the ``process'' of 
converting liquid natural gas back to its gaseous state, rather than, 
for example, the non-jurisdictional processing of natural gas where 
liquids are removed from a raw gas stream for their economic value.
---------------------------------------------------------------------------

    \12\ See EPAct 2005 section 311(b)(11).
---------------------------------------------------------------------------

Commission Response

    45. Section 311 of EPAct 2005 adds a definition of ``LNG terminal'' 
to section 2 of the NGA. The definition states, in pertinent part, that 
``LNG Terminal means all natural gas facilities located onshore or in 
state waters that are used to receive, unload, load, store, transport, 
gasify, liquefy, or process natural gas * * *.''
    46. New section 3(e)(1) of the NGA, as added by section 311 of 
EPAct 2005, states that ``[t]he Commission shall have the exclusive 
authority to approve or deny an application for the siting, 
construction, expansion, or operation of an LNG terminal.''
    47. Congress specifically provided for the new NGA definition of 
LNG terminal to include facilities to ``gasify, liquefy, or process 
natural gas.'' There would seem to be no purpose for the inclusion of 
the term ``process'' if the Commission were to interpret it, as urged 
by the commenters, as necessarily having exactly the same meaning as 
the term ``gasify''. However, the Commission agrees that its 
jurisdiction under the legislation with respect to processing of 
natural gas is limited to the siting, construction and operation of 
processing facilities that are part of an LNG import or export terminal 
and therefore included in the facilities for which a prospective 
applicant must seek authorization under section 3 of the NGA.
    48. The Commission does not view EPAct 2005 as having in any way 
expanded the scope of section 7 of the NGA to processing facilities or 
processing as an activity. Thus, for example, if a company plans to 
construct facilities in proximity to a planned LNG terminal in order to 
remove liquids from regasified LNG sent out from the LNG terminal, the 
processing facilities will be neither import facilities for which NGA 
section 3 authorization is necessary nor facilities for the interstate 
transportation of gas for which NGA section 7 authority would be 
necessary. That being the case, the Commission will have no authority 
to authorize the siting or construction of facilities to process LNG or 
regasified LNG except to the extent such facilities are part of an LNG 
terminal. However, notwithstanding the non-jurisdictional status of any 
processing facilities, the environmental review of the LNG terminal 
project would have to include any facilities to be constructed for the 
purpose of processing regasified LNG from a new LNG terminal.

Pipeline Facilities To Receive Regasified LNG From Terminals in Federal 
Waters

    49. Woodside Natural Gas, Inc. requests that the Commission clarify 
application of the mandatory pre-filing process to companies that may 
have filed permit applications pursuant to the Deepwater Port Act with 
other federal agencies for pipelines and other facilities that will be 
located in state waters but will be used to transport regasified LNG 
from a terminal located in federal or deepwaters.

Commission Response

    50. A prospective applicant to construct a pipeline that will 
transport regasified LNG from an LNG terminal in federal or deepwater 
will not be subject to the Commission's mandatory pre-filing process. 
To the extent authorization under section 7 of the NGA is necessary for 
a portion of a pipeline to access an LNG terminal in federal or 
deepwater, the Commission encourages prospective applicants to 
undertake the pre-filing process on a voluntary basis. The Commission 
notes, however, that the U.S. Coast Guard is the agency responsible for 
approving the siting and construction of an LNG terminal located in 
federal waters, and it is for the U.S. Coast Guard, not the Commission, 
to consider in a single NEPA document the environmental impacts of such 
an LNG terminal and any related pipeline facilities, including 
pipelines over which the Commission retains jurisdiction under the NGA.

Need for Flexibility--Time Requirements

    51. Cheniere, Cove Point, Nisource, Inc. (Nisource Pipelines),\13\ 
Duke Energy, and INGAA are concerned that the NOPR's approach is in one 
way or another too rigid and too sharp a departure from the voluntary 
pre-filing program heretofore in place. A number of commenters state 
that they believe a more flexible pre-filing process is necessary and 
appropriate. Duke Energy states that the regulations should expressly 
provide that the Director has ability to modify procedures and 
deadlines to reflect unique circumstances.
---------------------------------------------------------------------------

    \13\ Nisource, Inc. owns and operates four interstate pipelines: 
Columbia Gas Transmission Corporation, Columbia Gulf Transmission 
Company, Crossroads Pipeline Company and Granite State Gas 
Transmission, Inc.
---------------------------------------------------------------------------

    52. Cove Point and Duke Energy assert that, unlike the flexible 
pre-filing process currently in use, many of the timelines and 
requirements proposed in the NOPR are unreasonable and unduly rigid, 
which could substantially

[[Page 60432]]

lengthen the pre-filing process. Duke Energy comments that the 
inflexibility of the pre-filing process could have a ``chilling 
effect'' on prospective applicants who might shy away from voluntarily 
participating in the pre-filing process because they will not find it 
suitable to the circumstances of their proposed project. According to 
Cove Point, many of the deadlines should be established on a case-by-
case basis, not on a rigid, tight schedule. Cheniere states that the 
Commission should consider a more flexible timeline for filing the 
application. Williston Basin Interstate Pipeline Company (Williston 
Basin) also comments that certain requirements may not be necessary in 
a given case, yet the regulations seem to eliminate discretion in the 
submittal of certain information. As an example, Williston Basin offers 
the requirement that a prospective applicant set up a Web site, 
regardless of the fact that public participation in a given case might 
not justify the time and expense involved.
    53. Several commenters direct their attention to specific time 
requirements. INGAA, for example, states that the most onerous part of 
the pre-filing process is the preparation of Resource Reports 1 through 
12, and therefore, the time for filing those reports should be extended 
from 60 to 120 days. ExxonMobil states that since decisions by the 
Director are triggering events for deadlines that a prospective 
applicant must meet, the Commission should impose in the regulations a 
time limit for the Director to act on requests to commence the pre-
filing process and requests for findings on whether proposed 
modifications to existing or previously approved LNG terminals must be 
subject to the pre-filing process. Williston Basin is concerned that 
the timing requirements of proposed sections 157.21(f)(9) and 
157.21(f)(10) are tied to the end of the scoping comment period, but 
the regulations do not state when the scoping period will begin or end.

Commission Response

    54. The Commission acknowledged in the NOPR that, heretofore, when 
a prospective applicant has submitted a request to undertake the 
Commission's optional pre-filing process, it generally has been seven 
to eight months before an application was filed.\14\ However, the 
minimum pre-filing period mandated by Congress for new LNG terminals is 
six months. Therefore, the NOPR proposed filing specifications in 
section 157.21(f) structured so that the potential exists for the pre-
filing process to be completed in six months.
---------------------------------------------------------------------------

    \14\ 112 FERC ]61,232 at P 6 (2005).
---------------------------------------------------------------------------

    55. As discussed above, the Commission recognizes the need for 
flexibility in the application of the substantive and procedural 
requirements of the pre-filing procedures, in both mandatory and 
elective situations. The success of the pre-filing guidelines used by 
the Commission's staff and prospective applicants in recent years is 
attributable in significant measure to their flexibility. It is obvious 
that more time may be needed for the pre-filing process for some 
projects than for others. Further, in situations where the prospective 
applicant is not required to undertake the pre-filing process, there 
should be discretion for shortening the pre-filing process, if it can 
be completed in less than six months. The Commission also recognizes 
that in some instances certain required filings may not be applicable 
or may not need to be filed again, if sufficiently up-to-date 
information has been filed in a previous proceeding or by another 
prospective applicant in its resources reports for a contemporaneous 
related project.
    56. In recognition of the above considerations, the Commission 
proposed in the NOPR to revise section 375.309(z) of the regulations to 
delegate to the OEP Director the authority to ``[a]pprove, on a case-
specific basis, and make such decisions and issue guidance as may be 
necessary in connection with the use of the pre-filing procedures in 
Sec.  157.21, Pre-filing procedures and review process for LNG terminal 
facilities and other natural gas facilities prior to filing of 
applications. The commenters' concerns that the pre-filing procedures 
may be too rigid may be due to the Commission's failure to emphasize in 
the NOPR the discretion that the Director will have in the pre-filing 
process to make appropriate adjustments to schedules and modifications 
or waivers of filing requirements. Based on experience with the pre-
filing procedures in recent years, the Commission sees no need for the 
regulations to establish time limits, as suggested by some commenters, 
for the Director to take certain actions, such as granting or denying 
requests to commence the pre-filing process and reaching findings on 
whether proposed modifications to an existing or previously approved 
LNG terminal must be subject to the pre-filing process.

Waterway Suitability Assessment (WSA)

    57. Proposed section 157.21(f)(13) of the regulations would have 
required a prospective applicant to certify at the commencement of the 
mandatory pre-filing process that a Follow-on WSA will be submitted to 
the U.S. Coast Guard no later than when the application for LNG 
terminal facilities authorization is filed with the Commission. 
Cheniere and Cove Point point out that, heretofore, a WSA has not been 
mandatory for all proposed projects. Cheniere observes that a WSA has 
no application where there are no marine issues, and Cove Point adds 
that the requirement in proposed section 157.21(a)(1) that a 
prospective applicant file a preliminary WSA with the U.S. Coast Guard 
when it files its initial filing seeking initiation of the pre-filing 
process effectively lengthens the process well beyond six months.

Commission Response

    58. In response, the Commission is adding section 157.21(d)(12) to 
require that a prospective applicant certify in its initial filing 
seeking initiation of the pre-filing process that a Letter of Intent 
(LOI) and a Preliminary WSA have been submitted to the U. S. Coast 
Guard. In addition, the Commission is revising proposed 157.21(f)(13) 
to require that a prospective applicant file, upon the Director's 
issuance of a notice commencing the prospective applicant's pre-filing 
process, a certification that a Follow-On WSA will be submitted at the 
time the application is filed or that no LOI or WSA is required by the 
U.S. Coast Guard.

Cooperation With State and Local Officials and Other State and Local 
Issues

    59. The California PUC and the California Energy Commission assert 
that the NOPR's proposed regulations fail to adequately ensure that 
prospective applicants for LNG facilities will cooperate with state and 
local officials. The Maine Governor's Office states that objective, 
timely, accurate and project-specific information is essential in order 
to ensure that all pertinent federal, state and local decisions are 
made only after a thorough identification and evaluation of all 
environmental, public safety and other issues. The California PUC 
states that while the proposed regulations ensure that Commission staff 
receives all needed information, the only requirement regarding state 
and local agencies is that the prospective applicant provide in its 
initial filing a list of relevant state and local agencies in the 
project area with permitting requirements and a statement indicating 
whether these agencies are aware of applicant's intent to use the pre-
filing

[[Page 60433]]

process and have agreed to participate in the process.
    60. The California PUC emphasizes that EPAct 2005 added several new 
provisions to the NGA to ensure the opportunity for participation by a 
state commission and, if not the same, the agency appointed by the 
governor pursuant to new section 3(A)(b) of the NGA added by section 
311(d) of EPAct 2005.\15\ The California PUC asserts that the 
Commission should require that prospective applicants provide such 
state agencies notice of the pre-filing process and all information 
provided to Commission staff during the process. In addition, the 
California PUC states that to ensure state and local officials' 
meaningful participation in the proceeding, prospective applicants 
should be required to serve their formal applications upon the 
appropriate state commission and, if not the same, the governor-
designated agency. The California Energy Commission urges the 
Commission to ensure in the final rule that state and local governments 
will have timely access to non-internet public (NIP) and critical 
energy infrastructure (CEII) information.
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    \15\ As amended by EPAct 2005, new section 3(A)(b) of the NGA 
provides that the governor of a state in which an LNG terminal is 
proposed to be located shall designate a state agency and that the 
Commission shall consult with such state agency regarding state and 
local safety considerations prior to acting on the application for 
the proposed LNG terminal. New section 3(A)(c) of the NGA provides 
that the state agency may furnish an advisory report on state and 
local safety considerations to the Commission not later than 30 days 
after an application for LNG facilities is filed with the Commission 
and that the Commission shall respond specifically to the issues 
raised by the state agency. New section 3(A)(d) of the NGA provides 
that after an LNG terminal is operational, the state agency may 
conduct safety inspections, report any alleged safety violations to 
the Commission, and the Commission shall transmit information 
regarding such allegations to the appropriate federal agency. New 
section 3(e)(2)(B) of the NGA requires the Commission to give notice 
of the hearing on an application for the siting and construction or 
expansion of an LNG terminal to the state commission and, if not the 
same, the governor-appointed state agency.
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    61. In particular, the California PUC and California Energy 
Commission assert that prospective applicants should be required to 
file information specifically addressing state and local safety 
concerns that need to be addressed in the safety advisory report, which 
section 311(d) of EPAct 2005 requires the governor-appointed agency to 
submit within 30 days after an application is filed. As proposed, 
states the California PUC, there is no regulation requiring that a 
prospective applicant notify the state commissions and governor-
designated agencies recognized by EPAct as having substantial roles in 
the pre-filing process for LNG projects.
    62. The California Energy Commission also argues that the deadlines 
for prospective applicants to file draft Resource Report 13 and a WSA 
do not provide adequate opportunity for state and local agencies to 
review these safety-related materials before a state's safety advisory 
report is due. The Maine Governor's Office states that in addition to 
needing more time for state and local officials to assess these 
reports, the final rule should require that Resource Report 13 contain 
information needed to facilitate local and state officials' assessments 
of public safety issues and preparation of states' advisory safety 
reports.
    63. The Maine Governor's Office also states that the Commission 
should clarify the Commission staff's role in the pre-filing process 
expressly includes cooperation with the applicant and state and local 
agencies to facilitate development of the state-local public safety 
plan and other reviews. In addition, the Maine Governor's Office 
contends that the Commission should revise proposed section 157.21(d) 
to require the prospective applicant to describe the specific means and 
actions by which it intends to coordinate with state and local 
officials to facilitate development of the safety plan. Moreover, the 
Maine Governor's Office states that section 157.21(f) should establish 
milestones regarding consultation with state and local officials to 
facilitate safety studies and development of safety plans; section 
157.21(d) should be amended to require a prospective applicant to 
indicate its schedule and plans for addressing compliance with 
permitting and other local land use requirements; the Commission's 
staff should consult with applicants and state and local officials 
regarding the nature and contents of resource reports; and the final 
rule should specify that a prospective applicant's project Web site 
provide download access to project-related information submitted during 
the pre-filing process and that the project applicant make hard copies 
of such documents available for inspection in the community in which 
the LNG terminal will be located.

Commission Response

    64. In response to the comments, the Commission has revised the 
regulatory text in section 157.21(d)(5) to require, in the case of 
prospective applicants for LNG facilities, that the list of relevant 
federal and state agencies (1) identify the agency designated by the 
governor of a state for purposes of consulting with the Commission 
regarding a new LNG terminal project to be located in the state or 
regarding modifications to an existing or approved LNG terminal which 
would raise significant new safety concerns, and (2) state that the 
governor-designated agency is aware of the prospective applicant's 
intention to use the pre-filing process. In addition, the Commission 
has revised the regulatory text in section 157.21(d)(11) to require 
that a prospective applicant's Public Participation Plan describe how 
the prospective applicant intends to respond to requests for 
information from the governor's designated agency for consultation 
regarding state and local safety considerations with respect to LNG 
facilities.
    65. Once the pre-filing process is under way it is the 
responsibility of each stakeholder, including a state agency, to make 
the prospective applicant aware early in the process of the information 
it needs to perform its functions. State agencies' officials can make 
known at the beginning or early in the pre-filing process what 
materials they wish to receive. Of course, a state agency may adopt its 
own regulations to require that prospective applicants also file 
information with the state agency. However, the Commission does not 
believe this is necessary. If a prospective applicant is not 
forthcoming in providing requested information, a state agency may 
request that the Commission's staff or OEP Director provide assistance 
to ensure that the state agency receives in a timely manner the 
information needed to fulfill its responsibilities.\16\
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    \16\ The Commission also notes that much, if not most, of the 
information and materials filed by a prospective applicant during 
the pre-filing process will be in the Commission's eLibrary and 
accessible and downloadable via the Commission's Home Page on the 
Internet (http://www.ferc.gov), as well the Commission's Public 
Reference Room. The majority of filings with the Commission are 
available on eLibrary within 2 days. An agency also may register for 
an eSubscription to be notified of filings in a particular docket 
number and may contact the Administrative Law Section of the 
Commission's Office of the General Counsel regarding CEII and other 
non-Internet public (NIP) information.
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    66. The Commission emphasizes that is not aware of there being a 
problem in past pre-filing processes of prospective applicants' failing 
to cooperate in providing state agencies with such materials in a 
timely manner. Prospective applicants generally appreciate the fact 
that it is in their own best interests to cooperate with state and 
local agencies during the pre-filing process in order to expedite 
completion of the pre-filing process and the ultimate success of their 
planned projects. Further, since the Commission

[[Page 60434]]

believes that EPAct 2005's mandate that the Commission's regulations 
must require that prospective applicants for authority to site and 
construct new LNG terminals cooperate with state agencies, the 
Commission believes that this objective is significantly promoted by 
its implementation of a mandatory pre-filing process for new LNG 
terminals, as required by EPAct 2005. In any event, however, the 
Commission wishes to make clear from the outset that it does not read 
the legislation as obligating the prospective applicant to provide 
state agencies with material that is not clearly required by those 
state agencies' regulations for the permits or purposes in which those 
agencies are involved. Not all state agencies may want to receive all 
of the information filed by a prospective applicant with the 
Commission, and prospective applicants likely would be unnecessarily 
burdened by a rigid requirement that they provide state agencies with 
pre-filing materials that a state agency has not specifically indicated 
that it wants to receive.
    67. As discussed in the NOPR, the pre-filing procedures set forth 
in the new regulations, like the current pre-filing procedures, require 
that prospective applicants engaged in the pre-filing process comply 
with the environmental conditions in Part 380 of the Commission's 
regulations. The Part 380 regulations admonish prospective applicants 
to file with appropriate state agencies as early as possible to avoid 
having the various permitting processes run consecutively rather than 
concurrently. The Part 380 regulations also require that prospective 
applicants submit extensive information and documentation which will be 
in the public record for the pre-filing process.\17\ Much of this 
record information is relevant to agencies with responsibilities 
relating to state and local safety concerns and can be requested by 
such agencies. Given that longer lead times may be required for certain 
state authorizations which are required under federal mandate, it is in 
the prospective applicant's best interest to file as soon as possible 
all information that relevant state agencies will want to consider.\18\
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    \17\ During the pre-filing process under the existing guidelines 
and under the new regulations codified by this Final Rule, 
prospective applicants have to comply with a number of regulations 
that require the submission of information relevant to state 
agencies' responsibilities or cooperation with such agencies. 
Section 380.3(b)(3) requires that a prospective applicant consult 
with appropriate federal, regional, state, and local agencies during 
the planning stages of a project to ensure that all potential 
environmental impacts are identified. Section 380.3(b)(4) requires 
that the prospective applicant submit applications for all federal 
and state approvals as early as possible in the planning process. 
Section 380.3(b)(5) requires that the prospective applicant notify 
the Commission's staff of all other federal actions required for 
completion of a project so that the Commission' s staff may 
coordinate with other interested federal agencies. Section 
380.12(c)(2)(i)(D) requires that the prospective applicant provide 
any correspondence with the appropriate State Historic Preservation 
Officer or duly authorized Tribal Historic Preservation Officer for 
tribal lands regarding whether properties eligible for listing on 
the National Register of Historic Places would be affected by the 
project. Section 380.12(c)(2)(i)(E) requires that the prospective 
applicant provide correspondence with the U.S. Fish and Wildlife 
Service and National Marine Fisheries Service regarding the 
potential impact of facilities on federally listed threatened and 
endangered species. Section 380.12(c)(2)(i)(F) requires, in the case 
of facilities that will be located in a designated coastal zone 
management area, that a prospective applicant provide a consistency 
determination or evidence that the owner has requested a consistency 
determination from the state's coastal zone management program. 
Section 380.12(j)(12) requires that a prospective applicant 
demonstrate that applications for rights-of-way or other land use 
for a project will be filed with federal land-management agencies 
with jurisdiction over land that would be affected by the project.
    \18\ The California Energy Commission raises the need for 
appropriate state agencies to have timely access to critical energy 
infrastructure information (CEII). Section 388.112 of the 
Commission's regulations, 18 CFR Sec.  388.112 (2005), sets forth 
procedures to be followed by any person submitting documents 
containing CEII. These procedures apply only to submissions of CEII 
to the Commission. CEII, as defined in section 388.113 of the 
regulations, includes information about proposed or existing natural 
gas facilities that could be used by a person planning an attack on 
critical energy infrastructure. The Commission's procedures in 
section 388.112 are designed to ensure that CEII is not placed in 
the Commission's public records. Section 157.21(h) of this Final 
Rule's regulations provides that a prospective applicant using the 
pre-filing procedures of this section shall comply with the 
procedures in Sec.  388.112 for the submission of documents 
containing critical energy infrastructure information, as defined in 
Sec.  388.113. However, the Commission strongly encourages 
prospective applicants to ensure that CEII information is made 
available at the same time to the Commission and the state agency 
designated by the Governor pursuant to new section 3(A)(b), as added 
by section 311(d) of EPAct 2005, for consultation with the 
Commission for purposes of EPAct 2005's provisions relating to LNG 
terminal facilities. The Commission's regulations in no way hinder a 
prospective applicant providing CEII information as is required by 
permitting agencies as part of their normal deliberations.
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    68. Based on the Commission's experience in recent years, the pre-
filing process has allowed opportunity and time for state agencies to 
participate, request information and formulate and present their views. 
However, the Commission will monitor the operation of the pre-filing 
procedures and regulations adopted by this Final Rule in order to 
determine whether further action is needed to address issues or 
problems relating to the pre-filing process. State agencies as well as 
other stakeholders may at any time bring to the Commission's attention 
perceived problems in how the pre-filing procedures are working.

Section 153.12

    69. The NOPR proposed to remove section 153.12 because it refers to 
the collaborative procedures in section 157.22, which the Commission is 
eliminating in view of the new pre-filing procedures in section 157.21. 
BP Energy states that to avoid any confusion as to the applicability of 
the mandatory pre-filing regulations of Part 157 to applications under 
NGA section 3 for authorization to site, construct, modify and operate 
LNG terminals, an express statement to that effect, such as is included 
in section 153.12 needs to be retained. Consequently, states BP Energy, 
the Commission should not remove section 152.12 in its entirety as 
proposed in the NOPR.

Commission Response

    70. The Commission agrees that it will be useful to preserve 
section 153.12's reference to the applicability of the definitions in 
section 157.1, as well as expressly confirm the applicability of the 
mandatory pre-filing procedures contained in section 157.21 to 
applications under section 3 of the NGA filed under subpart B of Part 
153. Accordingly, the Commission will revise section 153.12 as 
suggested by BP Energy.

Section 157.21(d)(2)

    71. Reacting to the requirement in proposed section 157.21(d)(2) 
that the prospective applicant's initial filing requesting the pre-
filing process include a ``description of the zoning and availability 
of the proposed site and marine facility location,'' Keyspan LNG, L.P. 
(Keyspan) seeks clarification confirming that state and local zoning 
laws are preempted by the NGA and that the Commission will not be 
controlled by state and local administration of zoning laws in making 
its determination with respect to an application to construct LNG 
facilities pursuant to NGA section 3.

Commission Response

    72. Proposed section 157.21(d) requires a prospective applicant's 
submission of information of the type heretofore included in a written 
request to use the voluntary pre-filing process. The Commission 
considers this information essential to its staff being able to fulfill 
its role in the pre-filing process. As described in the NOPR, that role 
includes: (1) Assisting the prospective applicant in developing initial 
information about the proposal and identifying affected parties 
(including landowners and agencies); (2) issuing a Scoping Notice and 
conducting scoping for the proposal; (3)

[[Page 60435]]

facilitating issue identification and resolution; (4) conducting site 
visits, examining alternatives, meeting with relevant federal, state 
and local and other stakeholders, and participating in the prospective 
applicant's public information meetings; (5) initiating the preparation 
of a preliminary EA or preliminary DEIS, which may include cooperating 
agency review; and (6) reviewing draft resource reports for the 
application that is to be filed with the Commission.
    73. Proposed section 157.21(d)(2)'s request for ``a description of 
the zoning and availability of the proposed site and marine facility 
location'' should be viewed with only the above-described purposes in 
mind. While current zoning and availability are considerations that the 
Commission will take into account in weighing the public interest, 
section 157.21(d)(2) should not be interpreted as suggesting that the 
Commission will ultimately be controlled by state and local 
administration of zoning laws in making its determination regarding 
whether approval of a proposed site for LNG terminal facilities is in 
the public interest.

Section 157.21(f)(2)

    74. BP Energy states that proposed section 157.21(f)(2) appears to 
assume but is not clear that the Director will identify the third-party 
contractor at the time that the Director issues its notice commencing 
the applicant's pre-filing process. BP Energy asks that the Commission 
clarify this section.

Commission Response

    75. The Commission clarifies that, consistent with current practice 
under the pre-filing procedures, the Director's notice will identify 
the third-party contractor. The Final Rule reflects that practice in 
section 157.21(e)(2).

Section 157.21(f)(3)

    76. Section 157.21(f)(3) requires a prospective applicant using the 
pre-filing procedures to inform ``stakeholders'' of the proposed 
project within 14 days of the Director's issuance of a notice 
commencing the pre-filing process. INGAA and Cove Point ask the 
Commission to clarify the term ``stakeholder.'' INGAA recommends that 
the prospective applicant be required to contact affected agencies, 
public officials and known interest groups. The Maryland Conservation 
Council, stressing the benefits of non-governmental organization (NGO) 
participation, urges the Commission to require prospective applicants 
to contact regionally active NGOs prior to initiation of the pre-filing 
process and scoping process. The Maryland Conservation Council contends 
that environmental NGO stakeholders can put forward alternative points 
of view and distribute accurate information, thereby ensuring against 
rumors and uncertainties surrounding the proposed project and the pre-
filing process. As a result, the Maryland Conservation Council asserts 
that changes to the engineering and design can occur early in the 
project's timetable, citing the Cove Point LNG facility situation as an 
example of the benefits of NGO involvement.

Commission Response

    77. Stakeholder means any agency or identifiable individual who may 
have a stake in the outcome of the project. This would include federal 
permitting agencies, state commissions and, if not the same, agencies 
designated by governors for purposes of consulting with the Commission 
on state and local safety considerations, state and local permitting 
agencies (especially those for federal authorizations as defined in 
federal legislation), local responders, affected tribes, appropriate 
NGOs, and affected landowners as defined in section 157.6(d) of the 
regulations. The Commission believes it is sufficient that appropriate 
NGOs be informed in the same manner and at the same time as all other 
stakeholders.

Applicability of Commission's Ex Parte Rules

    78. Cove Point states that the Final Rule should clarify that the 
Commission's ex parte rules do not prohibit communications with the 
Commission's staff during the pre-filing process phase of a project.

Commission Response

    79. Since there is no right under the Commission's regulations for 
interested persons to intervene in the pre-filing process, the process 
is not subject to Rule 2201 of the Commission's Rules of Practice and 
Procedure, 18 CFR 385.2201, which governs off-the-record 
communications.

Gas Interchangeability Issues

    80. AGA urges the Commission to address the issue of gas 
interchangeability by requiring that a ``gas supply resource report'' 
assessing the impact of the imported LNG be incorporated into the pre-
filing process. Furthermore, AGA contends that stakeholders to be 
contacted at the pre-filing stage should include those utilities that 
might receive imported LNG in their market areas, so that they might be 
able to resolve any gas interchangeability issues.

Commission Response

    81. On May 19, 2005, the Commission issued a notice in Docket No. 
PL04-3-000 to seek comments on issues relating to gas 
interchangeability and the need to assure interchangeability of gas 
supplies in situations where regasified LNG is introduced into the 
market. The Commission is considering the comments and what regulatory 
steps it should take relating to gas interchangeability issues. Pending 
further action in Docket No. PL04-3-000, the Commission finds that it 
is premature to determine the extent to which it will be necessary or 
appropriate for such issues to be raised in a pre-filing proceeding 
under this Final Rule's procedures. The OEP Director, however, will 
have the discretion to determine whether gas interchangeability issues 
need to be addressed in a particular pre-filing proceeding. If the 
Director finds that such issues should be addressed in the pre-filing 
proceeding, local utilities concerned about such issues will be 
stakeholders.

II. Summary of Regulations

    82. As discussed above and proposed in the NOPR, this Final Rule, 
in large measure, adopts the formal pre-filing process that the 
Commission currently utilizes when prospective applicants voluntarily 
elect to use the process. However, in this Final Rule, the Commission 
is making several revisions to the regulatory text set forth in the 
NOPR. First, section 153.2 of the regulations is amended by a new 
paragraph setting forth the definition of ``LNG terminal'' in the new 
section 3A of the NGA added by section 311(d) of EPAct 2005:
    (d) LNG Terminal means all natural gas facilities located onshore 
or in State waters that are used to receive, unload, load, store, 
transport, gasify, liquefy, or process natural gas that is imported to 
the United States from a foreign country, exported to a foreign country 
from the United States, or transported in interstate commerce by a 
waterborne vessel, but does not include:
    (1) Waterborne vessels used to deliver natural gas to or from any 
such facility; or
    (2) Any pipeline or storage facility subject to the jurisdiction of 
the Commission under section 7 of the Natural Gas Act.
    83. Section 153.2 of the regulations is amended by also adding the 
following definitions:

[[Page 60436]]

    (e) For purposes of this part and section 157.21, related 
jurisdictional natural gas facilities means any pipeline or other 
natural gas facilities which are subject to section 7 of the NGA; will 
directly interconnect with the facilities of an LNG terminal, as 
defined in paragraph (d) of this section; and which are necessary to 
transport gas to or regasified LNG from:
    (1) A planned but not yet authorized LNG terminal; or
    (2) An existing or authorized LNG terminal for which prospective 
modifications are subject pursuant to section 157.21(e) to a mandatory 
pre-filing process.
    (f) Waterway Suitability Assessment (WSA) means a document used by 
the U.S. Coast guard in assessing the suitability of a waterway for LNG 
marine traffic pursuant to 33 CFR 127.007. The Preliminary WSA 
initiates the process of analyzing the safety and security risks posed 
by proposed LNG tanker operations to a port and waterways, and the 
Follow-On WSA provides a detailed analysis of the same issues.
    84. A new paragraph (c) is added to section 153.6 to state that no 
application for a new LNG terminal, modifications to an existing or 
approved LNG terminal found by the Director to involve significant, new 
safety considerations, or related jurisdictional gas facilities may be 
made before 180 days after the date of a notice by the OEP Director 
announcing commencement of a prospective applicant's pre-filing process 
under the procedures of section 157.21, as discussed above and 
described below. A new definition is added to section 157.1 to provide 
that, for the purposes of section 157.21, ``Director'' means the 
Director of the Commission's Office of Energy Projects.
    85. New section 157.21 establishes the pre-filing process for LNG 
terminal facilities, as well as other natural gas facilities. The 
procedures are mandatory for any prospective applicant for 
authorization to site, construct and operate facilities included within 
the definition of ``LNG terminal,'' as defined in proposed section 
153.2(d), and for any related jurisdictional natural gas facilities. 
The pre-filing procedures also are mandatory in cases where the 
Director finds that modifications to existing LNG terminal facilities 
involve significant state and local safety considerations that have not 
been previously addressed. As discussed below, the pre-filing review 
process remains voluntary for natural gas facilities not directly 
interconnected with LNG terminals.
    86. To initiate the pre-filing review process under new section 
157.21, a prospective applicant for LNG terminal facilities is required 
to make a filing containing certain material, as described below. New 
section 157.21(a)(2) provides that an application for LNG terminal 
facilities or related jurisdictional gas facilities (1) shall not be 
filed until at least 180 days after the date that the Director issues 
notice of the commencement of the prospective applicant's pre-filing 
process, and (2) shall contain all the information specified by 
Commission staff.
    87. The information that a prospective applicant is required to 
submit pursuant to section 157.21(a)(2) includes draft environmental 
material in accordance with the provisions of Part 380 of the 
regulations implementing the Commission's procedures under NEPA. The 
requirements in Part 380 of the Commission's regulations supplement 
CEQ's regulations.\19\ The procedures in Part 380 essentially follow 
CEQ procedures concerning early and efficient review of environmental 
issues, public notice and participation, scoping, interagency 
cooperation, comments, and timing of decisions on proposals.
---------------------------------------------------------------------------

    \19\ The CEQ's regulations are set at 40 CFR Parts 1500 through 
1508 (2005).
---------------------------------------------------------------------------

    88. The environmental material required by the Part 380 regulations 
is embodied in sections 380.12, 380.13, 380.14 and 380.15 and Appendix 
A to Part 380. Section 380.12 describes resource reports which list, in 
detail, the information the Commission needs to conduct an 
environmental review of a proposal under NEPA. It consists of 13 
resource reports ranging from a detailed project description to 
descriptions of the existing environment and potential impacts on 
environmental resources such as water use and quality, fish, wildlife 
and vegetation, cultural resources, land use and aesthetics, and air 
and noise and, for LNG terminal facilities, engineering and design 
material.
    89. Sections 380.13 and 380.14 provide procedures and detailed 
descriptions of what the prospective applicant is expected to do to 
help the Commission comply with its obligations under the Endangered 
Species Act and the National Historic Preservation Act. Section 380.15 
identifies best practices for the prospective applicant to follow when 
siting and maintaining facilities. Appendix A to Part 380 is a 
checklist of minimum environmental filing requirements.
    90. Currently, when a prospective applicant elects to undertake the 
Commission's voluntary pre-filing procedures, it is required to use or 
file, as appropriate, all of the above-described Part 380 materials as 
it formulates its project and then files the application with the 
Commission. The procedures require that prospective applicants required 
or requesting to use the pre-filing process file draft environmental 
material in accordance with the provisions of Part 380 of the 
regulations implementing the Commission's procedures under NEPA, as 
described above. This will allow the Commission to review the 
environmental materials and make suggestions on how they can be 
improved before the filing of the application.
    91. Section 157.21(a)(3) requires that prospective applicants for 
LNG terminal facilities and any related jurisdictional gas facilities 
provide any necessary information for the environmental review. 
Information also may be required for facilities not subject to the 
Commission's NGA jurisdiction, such as intrastate pipeline and Hinshaw 
pipeline facilities that will be interconnected with the LNG terminal.
    92. Section 157.21(b) also states that a prospective applicant 
approved to use the pre-filing procedures for facilities not related to 
LNG terminal facilities should not file an application until at least 
180 days after the date that the Director issues a notice approving use 
of the pre-filing procedures. However, whereas a prospective applicant 
for LNG facilities would be precluded from filing an application before 
the 180-day period has ended, the regulations do not preclude a 
prospective applicant for facilities not related to LNG facilities from 
filing an application within 180 days.
    93. Any prospective applicant required or potentially required to 
use the pre-filing process for LNG terminal facilities and related 
facilities or any prospective applicant requesting to use the pre-
filing process for non-LNG related facilities is required by section 
157.21(c) to first consult with the Director on the nature of the 
project, the content of the pre-filing request, and the status of the 
prospective applicant's progress toward obtaining the information 
required for the pre-filing request described in paragraph (d) of this 
section. This consultation will also include discussion of the 
specifications for the applicant's solicitation for prospective third-
party contractors to prepare the environmental documentation for the 
project.
    94. Section 157.21(d) identifies the information that a prospective 
applicant's initial filing to initiate the pre-filing process must 
include. For

[[Page 60437]]

LNG terminal facilities, the initial filing must include a description 
of the schedule desired for the project, including the expected 
application filing date and the desired date for Commission approval, 
and a description of the zoning and availability of the proposed site 
and marine facility location.
    95. For natural gas facilities not related to LNG terminal 
facilities, section 157.21(d) provides that a prospective applicant's 
initial filing must include an explanation of why the prospective 
applicant wants to use the process, including any critical timing 
considerations, the expected application filing date and the desired 
date for Commission approval.
    96. Filings by all prospective applicants to initiate the pre-
filing process are required by section 157.21(d) to include:
     A detailed description of the project, including location 
maps and plot plans to scale showing all major plant components, that 
will serve as the initial discussion point for stakeholder review;
     A list of the relevant federal and state agencies in the 
project area with permitting requirements, and a statement indicating 
that those agencies are aware of the prospective applicant's intention 
to use the pre-filing process (including contact names and telephone 
numbers) and whether the agencies have agreed to participate in the 
process. For LNG terminal facilities, the list shall identify the 
agency designated by the governor of the state in which the project 
will be located to consult with the Commission regarding state and 
local safety considerations. The filing also shall describe how the 
applicant has accounted for agency schedules for issuance of federal 
authorizations and when the applicant proposes to file with these 
agencies for their respective permits or other authorizations;
     A list and description of the interest of other persons 
and organizations who have been contacted about the project (including 
contact names and telephone numbers);
     A description of what work has already been done, e.g., 
contacting stakeholders, agency consultations, project engineering, 
route planning, environmental and engineering contractor engagement, 
environmental surveys/studies, and open houses. This description shall 
also include the identification of the environmental and engineering 
firms and sub-contractors under contract to develop the project.;
     For natural gas facilities other than LNG terminal 
facilities and related jurisdictional natural gas facilities, proposals 
for at least three prospective third-party contractors from which 
Commission staff may make a selection to assist in the preparation of 
the requisite NEPA document, or a proposal for the submission of an 
applicant-prepared draft Environmental Assessment as determined during 
the initial consultation described in paragraph (c) of this section;
     Acknowledgement that a complete Environmental Report and 
complete application are required at the time of filing;
     A description of a Public Participation Plan which 
identifies specific tools and actions to facilitate stakeholder 
communications and public information, including a project website and 
a single point of contact. This plan shall also describe how the 
applicant intends to respond to requests for information from federal 
and state permitting agencies, including, if applicable, the governor's 
designated agency for consultation regarding state and local safety 
considerations with respect to LNG facilities; and
     Certification that an LOI and Preliminary WSA have been 
submitted to the U. S. Coast Guard or, for modifications to an existing 
or approved LNG terminal, that the U. S. Coast Guard did not require 
such information.
    97. Section 157.21(e) states that the pre-filing process for a 
prospective applicant will be deemed to have commenced on the date the 
Director issues a notice setting forth a finding that the prospective 
applicant has adequately addressed the requirements of section 
157.21.\20\ The date of such notice shall be used in determining 
whether the date an application is filed is at least 180 days after 
commencement of the pre-filing process. Section 157.21(e) also provides 
for the Director to make determinations whether prospective 
modifications to an existing LNG terminal will involve significant 
state and local safety considerations that have not been previously 
addressed. Prospective applicants for such modifications to existing 
LNG facilities are required to undertake the pre-filing review process.
---------------------------------------------------------------------------

    \20\ The Commission recognizes that there will be instances 
where prospective modifications to existing or approved LNG 
terminals will not involve significant state and local safety 
considerations that have not been previously addressed. 
Nevertheless, it generally will be necessary for prospective 
applicants to substantially comply with the requirements of 
subsections (a), (c) and (d) of section 157.21 in order for the 
Director to make a finding on whether prospective modifications will 
involve significant new or additional safety considerations. 
However, the Director will have discretion in determining whether 
the information supplied by a prospective applicant is adequate.
---------------------------------------------------------------------------

    98. Existing section 375.308(z) describes the Director's delegated 
authority with respect to the collaborative pre-filing procedures in 
section 157.22. This Final Rule removes existing section 157.22 from 
the regulations since the Final Rule implements the pre-filing 
procedures and review provided for in new section 157.21. Therefore, 
the existing text in paragraph (z) of section 375.208 is replaced with 
new text which provides for the Director's issuance of notices to 
commence the pre-filing process under new section 157.21, after the 
Director has found that a prospective applicant has adequately 
addressed the above-described requirements. The new text in section 
375.308(z) also provides for the Director to post guidance on the 
Commission's website to clarify the procedures and on how prospective 
applicants can achieve compliance with the pre-filing process and 
regulations.
    99. Section 157.21(f) provides that, upon the Director's issuance 
of a notice commencing a prospective applicant's pre-filing process, 
the prospective applicant must:
     Within seven days \21\ and after consultation with 
Commission staff, establish and notify Commission staff of the dates 
and locations at which the prospective applicant will conduct open 
houses and meetings with stakeholders (including agencies) and 
Commission staff.
     Within 14 days, conclude the contract with the selected 
third-party contractor.
     Within 14 days, contact all stakeholders not already 
informed about the project.
---------------------------------------------------------------------------

    \21\ As provided in Rule 2007 of the Commission's Rules of 
Practice and Procedure, 18 CFR 385.2007 (2005), the day on which the 
Director's notice is issued will be excluded in counting days for 
purposes of determining the date a filing is due. Further, if the 
due date for a filing would fall on a Saturday, Sunday, holiday, or 
day on which the Commission closes early due to adverse conditions, 
the following business day becomes the due date.
---------------------------------------------------------------------------

     Within 30 days, submit a stakeholder mailing list to 
Commission staff.
     Within 30 days, file a draft of Resource Report 1 in 
accordance with section 380.12(c) of the regulations and a summary of 
the alternatives considered or under consideration.
     On a monthly basis, file status reports detailing the 
applicant's project activities including surveys, stakeholder 
communications, and agency meetings.
     Be prepared to provide a description of the proposed 
project and to answer questions from the public at

[[Page 60438]]

the scoping meetings held by Commission staff.
     Be prepared to attend site visits and other stakeholder 
and agency meetings arranged by the Commission staff, as required.
     Within 14 days of the end of the scoping comment period, 
respond to issues raised during scoping.
     Within 60 days of the end of the scoping comment period, 
file draft Resource Reports 1 through 12.
     At least 60 days prior to filing an application, file 
revised draft Resource Reports, if requested by Commission staff.
     At least 90 days prior to filing an application, file 
draft Resource Report 13 (for LNG terminal facilities).
     Certify that a Follow-on WSA will be submitted to the U. 
S. Coast Guard no later than the filing of an application with the 
Commission (for LNG terminal facilities and modifications thereto, if 
appropriate). If appropriate, the applicant shall certify that the U. 
S. Coast Guard has indicated that a Follow-On WSA is not required.
    100. Section 157.21(g) provides that Commission staff and third-
party contractor involvement during the pre-filing process will be 
designed to fit each project and will include some or all of the 
following:
     Assisting the prospective applicant in developing initial 
information about the proposal and identifying affected parties 
(including landowners, agencies, and other interested parties).
     Issuing an environmental scoping notice and conducting 
scoping for the proposal.
     Facilitating issue identification and resolution.
     Conducting site visits, examining alternatives, meeting 
with agencies and stakeholders, and participating in the prospective 
applicant's public information meetings.
     Reviewing draft Resource Reports.
     Initiating the preparation of a preliminary EA or draft 
EIS, which may include cooperating agency review.
    101. Paragraph (h) of section 157.21 provides that a prospective 
applicant using the pre-filing procedures shall comply with the 
procedures in section 388.112 of the regulations for the submission of 
documents containing CEII, as defined in Sec.  388.113 of the 
regulations.
    102. Once an application is accepted by the Commission, whether the 
environmental analysis can proceed will be highly dependent on how well 
the applicant responded to issues raised by Commission staff and the 
stakeholders during the pre-filing process described above.

III. Environmental Analysis

    103. The Commission is required to prepare an EA or EIS for any 
action that may have a significant adverse effect on the human 
environment.\22\ No environmental consideration is raised by the 
promulgation of a rule that is procedural in nature or does not 
substantially change the effect of legislation or regulations being 
amended.\23\
---------------------------------------------------------------------------

    \22\ 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).
    \23\ 18 CFR 380.4(a)(2)(ii) (2005).
---------------------------------------------------------------------------

    104. The Final Rule establishes pre-filing review procedures which 
are mandatory for prospective applicants for new LNG terminal 
facilities, certain modifications to existing or approved LNG terminals 
and related jurisdictional gas facilities. The Final Rule's pre-filing 
procedures are elective for prospective applicants for natural gas 
facilities not related to LNG terminals. In neither case do the 
procedures substantially change the regulatory requirements to which 
applications for such facilities are subject. Rather, the Final Rule 
will result in certain regulatory requirements being satisfied prior to 
the filing of an application, as opposed to being satisfied at the 
time, or after the filing, of the application. The use of the 
procedures generally will affect the timing of the filing of 
applications, not when regulatory requirements are met. Further, the 
Final Rule implements regulatory changes mandated by Congress in EPAct 
2005 for new LNG terminals.

IV. Regulatory Flexibility Act Statement

    105. The Regulatory Flexibility Act of 1980 (RFA) \24\ generally 
requires a description and analysis of proposed regulations 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. Under the industry 
standards used for purposes of the RFA, a natural gas pipeline company 
qualifies as ``a small entity'' if it has annual revenues of $6 million 
or less.
---------------------------------------------------------------------------

    \24\ 5 U.S.C. 601-612.
---------------------------------------------------------------------------

    106. Most companies regulated by the Commission do not fall within 
the RFA's definition of a small entity.\25\ Based on the Commission's 
experience using the proposed pre-filing procedures, they will only be 
used for major construction projects. Most, if not all, LNG-related 
projects subject to mandatory pre-filing review would be projects 
costing millions of dollars. Most, if not all, non-LNG related projects 
for which prospective applicants will elect to use the proposed pre-
filing procedures will be projects costing millions of dollars. Because 
of the scale and nature of projects likely to be reviewed under the 
pre-filing procedures, the Commission doubts that any existing or new 
company using the pre-filing procedures will be a small entity under 
the RFA's standards. In addition, the RFA directs agencies to consider 
four regulatory alternatives in a rulemaking to lessen the impact on 
small entities: (1) Tiering or establishment of different compliance or 
reporting requirements; (2) classification, consolidation, 
clarification or simplification of compliance and reporting 
requirements; (3) performance rather than design standards; and (4) 
exemptions. In this Final Rule the Commission has adopted an 
alternative by delegating to the OEP Director authority with the 
discretion to grant waivers and make modifications as appropriate for 
the use of pre-filing procedures as in section 157.21.
---------------------------------------------------------------------------

    \25\ 5 U.S.C. 601(3), citing to section 3 of the Small Business 
Act, 15 U.S.C. 623. Section 3 of the Small Business Act defines a 
``small-business concern'' as a business which is independently-
owned and operated and which is not dominant in its field of 
operation.
---------------------------------------------------------------------------

    107. Accordingly, the Commission hereby certifies that this Final 
Rule will not have a significant economic impact on a substantial 
number of small entities. FERC-537, ``Gas Pipeline Certificates: 
Construction, Acquisition and Abandonment,'' identifies the 
Commission's information collections relating to Part 157 of its 
regulations, which apply to natural gas facilities for which 
authorization under section 7 of the NGA is required.

V. Information Collection Statement

     108. The Office of Management and Budget (OMB) regulations require 
that OMB approve certain reporting, record keeping, and public 
disclosure (collections of information) imposed by an agency.\26\ 
Accordingly, pursuant to OMB regulations, the Commission is providing 
notice of its proposed information collections to OMB for review under 
section 3507(d) of the Paperwork Reduction Act of 1995.\27\ Upon 
approval of a collection(s) of information, OMB will assign an OMB 
control number and an expiration date. Interim OMB approval of the 
information collections contained in the NOPR was received on September 
26, 2005 in response to the Commission's

[[Page 60439]]

request for OMB review under emergency clearance procedures. The 
requirements in the subject rulemaking will be submitted to OMB for 
review and final approval.
---------------------------------------------------------------------------

    \26\ 5 CFR 1320.11 (2005).
    \27\ 44 U.S.C. 3507(d) (2005).
---------------------------------------------------------------------------

    109. The Final Rule will affect the following existing information 
collections:
    110. FERC-539, ``Gas Pipeline Certificates: Import/Export 
Related,'' identifies the Commission's information collections relating 
to Part 153 of its regulations, which apply to facilities to import or 
export natural gas and for which authorization under section of the NGA 
is necessary. FERC-537, ``Gas Pipeline Certificates: Construction, 
Acquisition and Abandonment,'' identifies the Commission's information 
collections relating to Part 157 of its regulations, which apply to 
natural gas facilities for which authorization under section 7 of the 
NGA is required.
    111. FERC-577, ``Gas Pipeline Certificates: Environmental Impact 
Statement,'' identifies the Commission's information collections 
relating to Part 380 implementing NEPA requirements relating to the 
construction of natural gas facilities.
    112. Interested persons may obtain information on the reporting 
requirements or submit comments on the collections of information and 
the associated burden estimates including suggestions for reducing this 
burden by contacting the Federal Energy Regulatory Commission, 888 
First Street, N.E., Washington, D.C. 20426 (Attention: Michael Miller, 
Office of the Executive Director, 202-502-8415 or e-mail 
[email protected].) Comments may also be sent to the Office of 
Management and Budget (Attention: Desk Officer for the Federal Energy 
Regulatory Commission, fax: 202-395-7285 or e-mail: [email protected].)
    113. Public Reporting Burden: The Commission did not receive 
specific comments concerning its burden estimates and uses the same 
estimates here in the Final Rule. Comments on the substantive issues 
raised in the NOPR are addressed elsewhere in the Final Rule.
    114. The burden estimates for complying with the additional filing 
requirements contained in this rule pursuant to the procedures in new 
section 157.21 are set forth below. As reflected, the burden estimates 
are higher for a respondent/prospective applicant for LNG terminal 
facilities than for a respondent/prospective applicant for other 
natural gas facilities.

----------------------------------------------------------------------------------------------------------------
                                                     Number of       Number of       Hours per     Total annual
                 Data collection                    respondents      responses       response          hours
----------------------------------------------------------------------------------------------------------------
FERC-537........................................              10               1              47             470
FERC-539........................................              10               1             103           1,030
FERC-577........................................              20               1           1,402          28,040
                                                 -----------------
    Totals......................................  ..............  ..............  ..............          29,540
----------------------------------------------------------------------------------------------------------------

    115. From these burden estimates there must be subtracted the 
original data collection requirements in OMB's record relating to 
section 157.22 which this rulemaking proposes to remove from the 
Commission's regulations. The numbers in OMB's record for section 
157.22 are:

FERC-537..............................................      13,230 hours
FERC-539..............................................         270 hours
FERC-577..............................................      13,580 hours
 

    116. When the burden estimates for proposed section 157.21 are 
reduced to reflect the removal of section 157.22, the net data 
collection estimates for this rule are:

FERC-537..............................................      12,760 hours
FERC-539..............................................         760 hours
FERC-577..............................................      14,460 hours
                                                       -----------------
    Total.............................................  \1\ 2,460 hours
 
\1\ Net increase.

    Total Annual Hours for Collection: 2,460 hours. For LNG terminal 
facilities and LNG-related pipeline facilities, these are mandatory 
information collection requirements. For non-LNG related natural gas 
facilities, these information collection requirements are voluntary but 
are still subject to OMB review.
    Information Collection Costs: The Commission sought comments on the 
cost to comply with these requirements. No comments were received. The 
Commission has projected the average annualized cost for all 
respondents to be $4,920,000 (2,460 hours x $100.00 per hour x 20 
respondents).
    Title: FERC-537 ``Gas Pipeline Certificates: Construction, 
Acquisition and Abandonment''; FERC-539, ``Gas Pipeline Certificates: 
Import/Export Related''; FERC-577, ``Gas Pipeline Certificates: 
Environmental Impact Statement.''
    Action: Proposed Information Collection.
    OMB Control Nos.: 1902-0060 (FERC-537); 1902-0062 (FERC-539); 1902-
0128 (FERC-577).
    The applicant shall not be penalized for failure to respond to 
these collections of information unless the collections of information 
display valid OMB control numbers.
    Respondents: Business or other for profit.
    Frequency of Responses: One-time implementation.
    Necessity of Information: On August 8, 2005, Congress enacted EPAct 
2005. Section 311(d) of EPAct 2005 amends the NGA to insert a new 
section, section 3A, which requires that the Commission shall 
promulgate regulations on the pre-filing process for LNG terminals 
within 60 days from enactment of EPAct 2005. Congress and the 
Commission consider the promulgation of these regulations to be a 
matter of critical importance to the state and local safety concerns 
regarding the construction and development of LNG terminals. The 
Commission must issue a final rule by October 7, 2005. The Commission 
seeks emergency processing of this proposed information collection 
because the use of normal clearance procedures is reasonably likely to 
cause a statutory ordered deadline to be missed. The Final Rule revises 
the requirements contained in 18 CFR Parts 157 and 153 to add a 
requirement that applicants for authorization to construct LNG 
terminals must comply with a pre-filing process and that such process 
must commence at least 6 months prior to the filing of any application 
with the Commission for authorization to construct such facilities.

VI. Document Availability

    117. 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/or print the contents of this document via the 
Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's 
Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. 
Eastern time) at 888 First Street, N.E., Room 2A, Washington DC 20426.

[[Page 60440]]

    118. 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 on eLibrary in PDF and 
Microsoft Word format for viewing, printing, and/or downloading. To 
access this document in eLibrary, type the docket number excluding the 
last three digits of this document in the docket number field.
    119. User assistance is available for eLibrary and the FERC's 
website during normal business hours. For assistance, please contact 
FERC Online Support at 1-866-208-3676 (toll free) or 202-502-6652 (e-
mail at [email protected]), or the Public Reference Room at 
202-502-8371, TTY (202) 502-8659 (e-mail at 
[email protected]).

Effective Date

    120. These regulations are effective November 17, 2005.
    121. The Commission has determined with the concurrence of the 
Administrator of the Office of Information and Regulatory Affairs of 
OMB, received on October 4, 2005, that this Final Rule is not a major 
rule as defined in section 351 of the Small Business Regulatory 
Enforcement Fairness Act of 1996.\28\ The Commission will submit the 
Final Rule to both houses of Congress and the General Accounting 
Office.\29\
---------------------------------------------------------------------------

    \28\ 5 U.S.C. 804(2) (2005).
    \29\ 5 U.S.C. 801(a)(A) (2005).
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List of Subjects

CFR Part 153

    Exports; Imports; Natural gas; Reporting and recordkeeping 
requirements.

CFR Part 157

    Administrative practice and procedure; Natural gas; Reporting and 
recordkeeping requirements.

CFR Part 375

    Authority delegations (Government agencies; Seals and insignia; 
Sunshine Act.

    By the Commission.
Magalie R. Salas,
Secretary.

0
In consideration of the foregoing, the Commission proposes to amend 
Parts 153, 157 and 375 of Chapter I, Title 18, Code of Federal 
Regulations, as follows:

PART 153--APPLICATIONS FOR AUTHORIZATION TO CONSTRUCT, OPERATE, OR 
MODIFY FACILITIES USED FOR THE EXPORT OR IMPORT OF NATURAL GAS

0
1. The authority citation for Part 153 continues to read as follows:

    Authority: 15 U.S.C. 717b, 717o; E.O. 10485, 3 CFR, 1949-1953 
Comp., p. 970, as amended by E.O. 12038, 3 CFR, 1978 Comp., p. 136, 
DOE Delegation Order No. 0204-112, 49 FR 6684 (February 22, 1984).

0
2. In Sec.  153.2, new paragraphs (d), (e) and (f) are added, to read 
as follows:

Sec.  153.2  Definitions.

* * * * *
    (d) LNG Terminal means all natural gas facilities located onshore 
or in state waters that are used to receive, unload, load, store, 
transport, gasify, liquefy, or process natural gas that is imported to 
the United States from a foreign country, exported to a foreign country 
from the United States, or transported in interstate commerce by a 
waterborne vessel, but does not include:
    (1) Waterborne vessels used to deliver natural gas to or from any 
such facility; or
    (2) Any pipeline or storage facility subject to the jurisdiction of 
the Commission under section 7 of the Natural Gas Act.
    (e) For purposes of this part and Sec.  157.21, related 
jurisdictional natural gas facilities means any pipeline or other 
natural gas facilities which are subject to section 7 of the NGA; will 
directly interconnect with the facilities of an LNG terminal, as 
defined in paragraph (d) of this section; and which are necessary to 
transport gas to or regasified LNG from:
    (1) A planned but not yet authorized LNG terminal; or
    (2) An existing or authorized LNG terminal for which prospective 
modifications are subject pursuant to section 157.21(e)(2) to a 
mandatory pre-filing process.
    (f) Waterway Suitability Assessment (WSA) means a document used by 
the U.S. Coast Guard in assessing the suitability of a waterway for LNG 
marine traffic pursuant to 33 CFR 127.007. The Preliminary WSA 
initiates the process of analyzing the safety and security risks posed 
by proposed LNG tanker operations to a port and waterways, and the 
Follow-On WSA provides a detailed analysis of the same issues.

0
3. In Sec.  153.6, a new paragraph (c) is added, to read as follows:

Sec.  153.6  Time of filing.

* * * * *
    (c) When a prospective applicant for authorization for LNG terminal 
facilities, related jurisdictional natural gas facilities or 
modifications to existing LNG terminal facilities is required by Sec.  
157.21(a) to comply with that section's pre-filing procedures, no 
application for such authorization may be made before 180 days after 
the date of issuance of the notice by the Director of the Office of 
Energy Projects, as provided in Sec.  157.21(e), of the commencement of 
the prospective applicant's pre-filing process under Sec.  157.21.

0
4. The title and text of Sec.  153.12 are revised to read as follows:

Sec.  153.12  Pre-filing procedures for applications for authorization 
to site, construct, maintain, connect or modify facilities to be used 
for the export or import of natural gas.

    The definitions in Sec.  157.1 and the pre-filing procedures in 
Sec.  157.21 of this chapter are applicable to applications under 
section 3 of the Natural Gas Act filed pursuant to subpart B of this 
part.

PART 157--APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND 
NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER 
SECTION 7 OF THE NATURAL GAS ACT

0
5. 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.

0
6. In Sec.  157.1, add the definition for ``Director'' in alphabetical 
order to read as follows:

Sec.  157.1  Definitions.

* * * * *
    For the purposes of Sec.  157.21 of this part, Director means the 
Director of the Commission's Office of Energy Projects.
0
7. Section 157.21 is added, to read as follows:

Sec.  157.21  Pre-filing procedures and review process for LNG terminal 
facilities and other natural gas facilities prior to filing of 
applications.

    (a) LNG terminal facilities and related jurisdictional natural gas 
facilities. A prospective applicant for authorization to site, 
construct and operate facilities included within the definition of 
``LNG terminal,'' as defined in Sec.  153.2(d), and any prospective 
applicant for related jurisdictional natural gas facilities must comply 
with this section's pre-filing procedures and review process. These 
mandatory pre-filing procedures also shall apply when the Director 
finds in accordance with paragraph (e)(2) of this section that 
prospective modifications

[[Page 60441]]

to an existing LNG terminal are modifications that involve significant 
state and local safety considerations that have not been previously 
addressed. Examples of such modifications include, but are not limited 
to, the addition of LNG storage tanks; increasing throughput requiring 
additional tanker arrivals or the use of larger vessels; or changing 
the purpose of the facility from peaking to base load. When a 
prospective applicant is required by this paragraph to comply with this 
section's pre-filing procedures:
    (1) The prospective applicant must make a filing containing the 
material identified in paragraph (d) of this section and concurrently 
file a Letter of Intent pursuant to 33 U.S.C. 127.007, and a 
Preliminary Waterway Suitability Assessment (WSA) with the U.S. Coast 
Guard (Captain of the Port/Federal Maritime Security Coordinator). The 
latest information concerning the documents to be filed with the Coast 
Guard should be requested from the U.S. Coast Guard. For modifications 
to an existing or approved LNG terminal, this requirement can be 
satisfied by the prospective applicant's certifying that the U.S. Coast 
Guard did not require such information.
    (2) An application:
    (i) Shall not be filed until at least 180 days after the date that 
the Director issues notice pursuant to paragraph (e) of this section of 
the commencement of the prospective applicant's pre-filing process; and
    (ii) Shall contain all the information specified by the Commission 
staff after reviewing the draft materials filed by the prospective 
applicant during the pre-filing process, including required 
environmental material in accordance with the provisions of part 380 of 
this chapter, ``Regulations Implementing the National Environmental 
Policy Act.''
    (3) The prospective applicant must provide sufficient information 
for the pre-filing review of any pipeline or other natural gas 
facilities, including facilities not subject to the Commission's 
Natural Gas Act jurisdiction, which are necessary to transport 
regassified LNG from the subject LNG terminal facilities to the 
existing natural gas pipeline infrastructure.
    (b) Other natural gas facilities. When a prospective applicant for 
authorization for natural gas facilities is not required by paragraph 
(a) of this section to comply with this section's pre-filing 
procedures, the prospective applicant may file a request seeking 
approval to use the pre-filing procedures.
    (1) A request to use the pre-filing procedures must contain the 
material identified in paragraph (d) of this section unless otherwise 
specified by the Director as a result of the Initial Consultation 
required pursuant to paragraph (c) of this subsection; and
    (2) If a prospective applicant for non-LNG terminal facilities is 
approved to use this section's pre-filing procedures:
    (i) The application will normally not be filed until at least 180 
days after the date that the Director issues notice pursuant to 
paragraph (e)(3) of this section approving the prospective applicant's 
request to use the pre-filing procedures under this section and 
commencing the prospective applicant's pre-filing process. However, a 
prospective applicant approved by the Director pursuant to paragraph 
(e)(3) of this section to undertake the pre-filing process is not 
prohibited from filing an application at an earlier date, if necessary; 
and
    (ii) The application shall contain all the information specified by 
the Commission staff after reviewing the draft materials filed by the 
prospective applicant during the pre-filing process, including required 
environmental material in accordance with the provisions of part 380 of 
this chapter, ``Regulations Implementing the National Environmental 
Policy Act.''
    (c) Initial consultation. A prospective applicant required or 
potentially required or requesting to use the pre-filing process must 
first consult with the Director on the nature of the project, the 
content of the pre-filing request, and the status of the prospective 
applicant's progress toward obtaining the information required for the 
pre-filing request described in paragraph (d) of this section. This 
consultation will also include discussion of the specifications for the 
applicant's solicitation for prospective third-party contractors to 
prepare the environmental documentation for the project, and whether a 
third-party contractor is likely to be needed for the project.
    (d) Contents of the initial filing. A prospective applicant's 
initial filing pursuant to paragraph (a)(1) of the section for LNG 
terminal facilities and related jurisdictional natural gas facilities 
or paragraph (b)(1) of this section for other natural gas facilities 
shall include the following information:
    (1) A description of the schedule desired for the project including 
the expected application filing date and the desired date for 
Commission approval.
    (2) For LNG terminal facilities, a description of the zoning and 
availability of the proposed site and marine facility location.
    (3) For natural gas facilities other than LNG terminal facilities 
and related jurisdictional natural gas facilities, an explanation of 
why the prospective applicant is requesting to use the pre-filing 
process under this section.
    (4) A detailed description of the project, including location maps 
and plot plans to scale showing all major plant components, that will 
serve as the initial discussion point for stakeholder review.
    (5) A list of the relevant federal and state agencies in the 
project area with permitting requirements. For LNG terminal facilities, 
the list shall identify the agency designated by the governor of the 
state in which the project will be located to consult with the 
Commission regarding state and local safety considerations. The filing 
shall include a statement indicating:
    (i) That those agencies are aware of the prospective applicant's 
intention to use the pre-filing process (including contact names and 
telephone numbers);
    (ii) Whether the agencies have agreed to participate in the 
process;
    (iii) How the applicant has accounted for agency schedules for 
issuance of federal authorizations; and
    (iv) When the applicant proposes to file with these agencies for 
their respective permits or other authorizations.
    (6) A list and description of the interest of other persons and 
organizations who have been contacted about the project (including 
contact names and telephone numbers).
    (7) A description of what work has already been done, e.g., 
contacting stakeholders, agency consultations, project engineering, 
route planning, environmental and engineering contractor engagement, 
environmental surveys/studies, and open houses. This description shall 
also include the identification of the environmental and engineering 
firms and sub-contractors under contract to develop the project.
    (8) For LNG terminal projects, proposals for at least three 
prospective third-party contractors from which Commission staff may 
make a selection to assist in the preparation of the requisite NEPA 
document.
    (9) For natural gas facilities other than LNG terminal facilities 
and related jurisdictional natural gas facilities, proposals for at 
least three prospective third-party contractors from which Commission 
staff may make a selection to assist in the preparation of the 
requisite NEPA document, or a proposal for the submission of an 
applicant-prepared draft Environmental Assessment as determined during 
the

[[Page 60442]]

initial consultation described in paragraph (c) of this section.
    (10) Acknowledgement that a complete Environmental Report and 
complete application are required at the time of filing.
    (11) A description of a Public Participation Plan which identifies 
specific tools and actions to facilitate stakeholder communications and 
public information, including a project website and a single point of 
contact. This plan shall also describe how the applicant intends to 
respond to requests for information from federal and state permitting 
agencies, including, if applicable, the governor's designated agency 
for consultation regarding state and local safety considerations with 
respect to LNG facilities.
    (12) Certification that a Letter of Intent and a Preliminary WSA 
have been submitted to the U.S. Coast Guard or, for modifications to an 
existing or approved LNG terminal, that the U.S. Coast Guard did not 
require such information.
    (e) Director's notices. (1) When the Director finds that a 
prospective applicant for authority to site and construct a new LNG 
terminal has adequately addressed the requirements of paragraphs (a), 
(c) and (d) of this section, the Director shall issue a notice of such 
finding. Such notice shall designate the third-party contractor. The 
pre-filing process shall be deemed to have commenced on the date of the 
Director's notice, and the date of such notice shall be used in 
determining whether the date an application is filed is at least 180 
days after commencement of the pre-filing process.
    (2) When the Director finds that a prospective applicant for 
authority to make modifications to an existing or approved LNG terminal 
has adequately addressed the requirements of paragraphs (a), (c) and 
(d) of this section, the Director shall issue a notice making a 
determination whether prospective modifications to an existing LNG 
terminal shall be subject to this section's pre-filing procedures and 
review process. Such notice shall designate the third-party contractor, 
if appropriate. If the Director determines that the prospective 
modifications are significant modifications that involve state and 
local safety considerations, the Director's notice will state that the 
pre-filing procedures shall apply, and the pre-filing process shall be 
deemed to have commenced on the date of the Director's notice in 
determining whether the date an application is filed is at least 180 
days after commencement of the pre-filing process.
    (3) When a prospective applicant requests to use this section's 
pre-filing procedures and review for facilities not potentially subject 
to this section's mandatory requirements, the Director shall issue a 
notice approving or disapproving use of the pre-filing procedures of 
this section and determining whether the prospective applicant has 
adequately addressed the requirements of paragraphs (b), (c) and (d) of 
this section. Such notice shall designate the third-party contractor, 
if appropriate. The pre-filing process shall be deemed to have 
commenced on the date of the Director's notice, and the date of such 
notice shall be used in determining whether the date an application is 
filed is at least 180 days after commencement of the pre-filing 
process.
    (f) Upon the Director's issuance of a notice commencing a 
prospective applicant's pre-filing process, the prospective applicant 
must:
    (1) Within seven days and after consultation with Commission staff, 
establish the dates and locations at which the prospective applicant 
will conduct open houses and meetings with stakeholders (including 
agencies) and Commission staff.
    (2) Within 14 days, conclude the contract with the selected third-
party contractor.
    (3) Within 14 days, contact all stakeholders not already informed 
about the project, including all affected landowners as defined in 
paragraph Sec.  157.6(d)(2) of this section.
    (4) Within 30 days, submit a stakeholder mailing list to Commission 
staff.
    (5) Within 30 days, file a draft of Resource Report 1, in 
accordance with Sec.  380.12(c), and a summary of the alternatives 
considered or under consideration.
    (6) On a monthly basis, file status reports detailing the 
applicant's project activities including surveys, stakeholder 
communications, and agency meetings.
    (7) Be prepared to provide a description of the proposed project 
and to answer questions from the public at the scoping meetings held by 
OEP staff.
    (8) Be prepared to attend site visits and other stakeholder and 
agency meetings arranged by the Commission staff, as required.
    (9) Within 14 days of the end of the scoping comment period, 
respond to issues raised during scoping.
    (10) Within 60 days of the end of the scoping comment period, file 
draft Resource Reports 1 through 12.
    (11) At least 60 days prior to filing an application, file revised 
draft Resource Reports 1 through 12, if requested by Commission staff.
    (12) At least 90 days prior to filing an application, file draft 
Resource Report 13 (for LNG terminal facilities).
    (13) Certify that a Follow-on WSA will be submitted to the U.S. 
Coast Guard no later than the filing of an application with the 
Commission (for LNG terminal facilities and modifications thereto, if 
appropriate). The applicant shall certify that the U.S. Coast Guard has 
indicated that a Follow-On WSA is not required, if appropriate.
    (g) Commission staff and third-party contractor involvement during 
the pre-filing process will be designed to fit each project and will 
include some or all of the following:
    (1) Assisting the prospective applicant in developing initial 
information about the proposal and identifying affected parties 
(including landowners, agencies, and other interested parties).
    (2) Issuing an environmental scoping notice and conducting such 
scoping for the proposal.
    (3) Facilitating issue identification and resolution.
    (4) Conducting site visits, examining alternatives, meeting with 
agencies and stakeholders, and participating in the prospective 
applicant's public information meetings.
    (5) Reviewing draft Resource Reports.
    (6) Initiating the preparation of a preliminary Environmental 
Assessment or Draft Environmental Impact Statement, the preparation of 
which may involve cooperating agency review.
    (h) A prospective applicant using the pre-filing procedures of this 
section shall comply with the procedures in Sec.  388.112 for the 
submission of documents containing critical energy infrastructure 
information, as defined in Sec.  388.113.

Sec.  157.22  [Removed]

0
8. Section 157.22 is removed in its entirety.

PART 375--THE COMMISSION

0
9. The Authority citation for part 375 continues to read as follows:

    Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-1 3432; 16 
U.S.C. 791-825r, 2601-2645; U.S.C. 7101-7352.

0
10. In Sec.  375.308, paragraph (z) is revised to read as follows:

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

* * * * *
    (z) Approve, on a case-specific basis, and make such decisions and 
issue guidance as may be necessary in

[[Page 60443]]

connection with the use of the pre-filing procedures in Sec.  157.21, 
`` Pre-filing procedures and review process for LNG terminal facilities 
and other natural gas facilities prior to filing of applications.''

    Note: The following appendix will not appear in the Code of 
Federal Regulations.

Appendix--Commenters

Trunkline LNG Company, L.L.C.
Center for Liquified Natural Gas
El Paso Corporation Pipeline Group
Broadwater Energy
Woodside Natural Gas, Inc.
BP Energy Company
Williston Basin Interstate Pipeline Company
Exxon Mobil Corporation
Cheniere LNG, Inc.
Public Utilities Commission of the State of California
Dominion Cove Point LNG, LP
California Energy Commission
Distrigas of Massachusetts LLC
National Association of Regulatory Utility Commissioners
Sempra Global
North Baja Pipeline, LLC
State of Maine, Office of the Governor
Maryland Conservation Council
Duke Energy Gas Transmission
Nisource Pipelines
Interstate Natural Gas Association of America (INGAA)
Downeast LNG, Inc.
Keyspan LNG, L.P.
American Gas Association

[FR Doc. 05-20653 Filed 10-17-05; 8:45 am]
BILLING CODE 6717-01-P
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