60426 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

1Public Law 109–58, 119 Stat. 594. 

2 42 U.S.C. 4321, et seq. 

3 112 FERC ¶ 61,232 (2005); 70 FR 52328 

(September 2, 2005). 

4Under 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 prefiling 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. 

Issued in Washington, DC, on October 11, 

2005. 

Edith V. Parish, 

Acting Manager, Airspace and Rules. 

[FR Doc. 05–20852 Filed 10–17–05; 8:45 am] 

BILLING CODE 4910–13–P 

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. 

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 prefiling 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, richard.hoffmann@ferc.gov. 

John Leiss, Office of Energy Projects, 

888 First Street, NE., Washington, DC 

20426, (202) 502–8058, 

john.leiss@ferc.gov. 

Whit Holden, Office of the General 

Counsel, Federal Energy Regulatory 

Commission, 888 First Street, NE., 

Washington, DC 20426, (202) 502–

8089, edwin.holden@ferc.gov. 

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. 

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

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 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60427 

5The commenters are listed in the Appendix to 

this Final Rule. 

6The 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. 

8EPAct 2005, section 311(b). 

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

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

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 

60428 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

9On 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 nonjurisdictional 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. 

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

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 prefiling 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 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60429 

10As 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). 

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 prefiling 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. 

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 prefiling 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 

60430 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

11Section 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. 

should clearly provide that only new 

safety issues being raised for the first 

time will justify requiring another prefiling 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

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 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60431 

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

13Nisource, Inc. owns and operates four interstate 

pipelines: Columbia Gas Transmission Corporation, 

Columbia Gulf Transmission Company, Crossroads 

Pipeline Company and Granite State Gas 

Transmission, Inc. 

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 prefiling 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. 

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 prefiling 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. 

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 

60432 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

14 112 FERC ¶61,232 at P 6 (2005). 

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 prefiling 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. 

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-todate 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 

§ 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 prefiling 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 prefiling 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 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60433 

15As 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 governorappointed state agency. 

16The 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. 

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. 

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 prefiling 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

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 

60434 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

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 landmanagement agencies with jurisdiction over land 

that would be affected by the project. 18The 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 § 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 prefiling procedures of this section shall comply with 

the procedures in § 388.112 for the submission of 

documents containing critical energy infrastructure 

information, as defined in § 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. 

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 prefiling 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 prefiling 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

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 prefiling 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) 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 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 prefiling 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 nongovernmental 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 prefiling 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: 

60436 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

19The CEQ’s regulations are set at 40 CFR Parts 

1500 through 1508 (2005). 

(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 prefiling 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. 

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 abovedescribed 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 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60437 

20The 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. 

21As 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. 

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 applicantprepared 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. 

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 abovedescribed 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. 

• 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 

60438 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

22Order 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). 

24 5 U.S.C. 601–612. 

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. 

26 5 CFR 1320.11 (2005). 

27 44 U.S.C. 3507(d) (2005). 

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 prefiling 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 § 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

104. The Final Rule establishes prefiling 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. 

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. 

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 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 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. 

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 email michael.miller@ferc.gov.) 

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: 

oira_submission@omb.eop.gov.) 

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. 

Data collection Number of 

respondents 

Number of 

responses 

Hours per 

response 

Total annual 

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 

1Net 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 × $100.00 per 

hour × 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 prefiling 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. 

60440 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

28 5 U.S.C. 804(2) (2005). 

29 5 U.S.C. 801(a)(A) (2005). 

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 

FERCOnlineSupport@FERC.gov), or the 

Public Reference Room at 202–502–

8371, TTY (202) 502–8659 (e-mail at 

public.referenceroom@ferc.gov). 

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

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. 

■ 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 

■ 1. The authority citation for Part 153 

continues to read as follows: 

Authority: 15 U.S.C. 717b, 717o; E.O. 

10485, 3 CFR, 1949–1953 Comp., p. 970, as 

amended by E.O. 12038, 3 CFR, 1978 Comp., 

p. 136, DOE Delegation Order No. 0204–112, 

49 FR 6684 (February 22, 1984). 

■ 2. In § 153.2, new paragraphs (d), (e) 

and (f) are added, to read as follows: 

§ 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 

§ 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 prefiling 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. 

■ 3. In § 153.6, a new paragraph (c) is 

added, to read as follows: 

§ 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 

§ 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 

§ 157.21(e), of the commencement of the 

prospective applicant’s pre-filing 

process under § 157.21. 

■ 4. The title and text of § 153.12 are 

revised to read as follows: 

§ 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 § 157.1 and the prefiling procedures in § 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 

■ 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. 

■ 6. In § 157.1, add the definition for 

‘‘Director’’ in alphabetical order to read 

as follows: 

§ 157.1 Definitions. 

* * * * * 

For the purposes of § 157.21 of this 

part, Director means the Director of the 

Commission’s Office of Energy Projects. 

■ 7. Section 157.21 is added, to read as 

follows: 

§ 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 § 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 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 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 nonLNG 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 prefiling 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 prefiling 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 applicantprepared draft Environmental 

Assessment as determined during the 

60442 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

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 prefiling 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 

§ 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 

§ 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 prefiling 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 

§ 388.112 for the submission of 

documents containing critical energy 

infrastructure information, as defined in 

§ 388.113. 

§ 157.22 [Removed] 

■ 8. Section 157.22 is removed in its 

entirety. 

PART 375—THE COMMISSION 

■ 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. 

■ 10. In § 375.308, paragraph (z) is 

revised to read as follows: 

§ 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 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60443 

connection with the use of the pre-filing 

procedures in § 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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 82 

[FRL–7985–2] 

RIN 2060–AN13 

Protection of Stratospheric Ozone: 

Process for Exempting Critical Uses of 

Methyl Bromide for the 2005 

Supplemental Request 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Withdrawal of direct final rule. 

SUMMARY: Because EPA received 

adverse comments, we are withdrawing 

the direct final rule on the supplemental 

authorization of methyl bromide for 

critical uses in 2005, published in the 

Federal Register on August 30, 2005 (70 

FR 51270). We stated in the direct final 

rule that if we received adverse 

comment by September 29, 2005, we 

would publish a timely withdrawal in 

the Federal Register. We received 

adverse comment on the direct final 

rule. We will address those comments 

in a subsequent final action based on 

the parallel proposal also published on 

August 30, 2005 (70 FR 51317). As 

stated in the parallel proposal, we will 

not institute a second comment period 

on this action. 

DATES: As of October 18, 2005, EPA 

withdraws the direct final rule 

published at 70 FR 51270, on August 30, 

2005. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. OAR 2004–0506. All documents in 

the docket are listed in the EDOCKET 

index at http://www.epa.gov/edocket. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in 

EDOCKET or in hard copy at the Air 

Docket, EPA/DC, EPA West, Room 

B102, 1301 Constitution Ave., NW., 

Washington, DC 20460. This Docket 

Facility is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the Air Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: For 

further information about this action, 

contact Marta Montoro by telephone at 

(202) 343–9321, or by e-mail at 

mebr.allocation@epa.gov, or by mail at 

Marta Montoro, U.S. Environmental 

Protection Agency, Stratospheric 

Protection Division, (6205J), 1200 

Pennsylvania Avenue, NW., 

Washington, DC 20460. Overnight or 

courier deliveries should be sent to 1310 

L St., NW., Washington, DC 20005, Attn: 

Marta Montoro. You may also visit the 

Ozone Depletion Web site of EPA’s 

Stratospheric Protection Division at 

http://www.epa.gov/ozone/index.html 

for further information about EPA’s 

Stratospheric Ozone Protection 

regulations, the science of ozone layer 

depletion, and other topics. 

SUPPLEMENTARY INFORMATION: On August 

30, 2005, we published a direct final 

rule (70 FR 51270) and parallel proposal 

(70 FR 51317) supplementing the 

critical stock allowances (CSAs) 

previously allocated for 2005, as 

published in the Federal Register on 

December 23, 2004 (69 FR 76982), and 

amending the list of approved critical 

uses. EPA exempted methyl bromide for 

critical uses beyond the phaseout under 

the authority of the Clean Air Act and 

in accordance with the Montreal 

Protocol on Substances that Deplete the 

Ozone Layer. The preamble to the direct 

final rule stated that if we received 

adverse comment by September 29, 

2005, we would publish a timely notice 

of withdrawal in the Federal Register. 

EPA received adverse comment on the 

direct final rule. Accordingly, we are 

withdrawing the direct final rule as of 

October 18, 2005. EPA will take final 

action on the parallel proposal after 

considering the comments received. As 

stated in the parallel proposal, EPA will 

not institute a second comment period 

on this action. 

List of Subjects in 40 CFR Part 82 

Environmental protection, Chemicals, 

Methyl Bromide, Ozone, Reporting and 

recordkeeping requirements, Treaties. 

Dated: October 11, 2005. 

William L. Wehrum, 

Acting Assistant Administrator for the Office 

of Air and Radiation. 

[FR Doc. 05–20813 Filed 10–17–05; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

[DHS–2005–0051] 

RIN 1660–AA44 

44 CFR Part 206 

Special Community Disaster Loans 

Program 

AGENCY: Federal Emergency 

Management Agency, Emergency 

Preparedness and Response Directorate, 

Department of Homeland Security. 

ACTION: Interim rule with request for 

comments. 

SUMMARY: This interim rule implements 

the Special Community Disaster Loans 

Program authorized in the Community 

Disaster Loan Act of 2005 (2005 Act). 

This interim rule describes the 

procedures and requirements for a 

program designed to provide loans for 

essential services to local governments 

that have experienced a loss in revenue 

due to a major disaster. These 

regulations do not apply to the 

traditional Community Disaster Loans 

Program which is permanently 

authorized. 

DATES: Effective: This rule is effective 

October 18, 2005. Comments: Comments 

are due on or before December 19, 2005. 

ADDRESSES: You may submit comments, 

identified by Docket DHS–2005–0051, 

Special Community Disaster Loans