Regulations Implementing Energy Policy Act of 2005; Pre-Filing Procedures for Review of LNG Terminals and Other Natural Gas Facilities, 60426-60443 [05-20653]

Agencies

• DEPARTMENT OF ENERGY
• Federal Energy Regulatory Commission

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


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 153, 157 and 375

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


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

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

ACTION: Final rule.

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

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

FOR FURTHER INFORMATION CONTACT:

Richard Hoffmann, Office of Energy Projects, 888 First Street, NE., 
Washington, DC 20426, (202) 502-8066, 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.
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    \1\ Public Law 109-58, 119 Stat. 594.
    \2\ 42 U.S.C. 4321, et seq.
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    2. The mandatory procedures established in this Final Rule require 
that a prospective applicant for authority to site and construct an LNG 
terminal submit information necessary for NEPA pre-filing review of the 
LNG terminal, as defined in EPAct 2005. A prospective applicant for 
authority to construct related jurisdictional pipeline and other 
natural gas facilities, as defined in the regulations, is also required 
to undertake the mandatory pre-filing review process. A prospective 
applicant is also required to comply with the pre-filing procedures 
prior to filing an application to make modifications to an existing LNG 
terminal if such modifications involve significant state and local 
safety considerations that have not been previously addressed. This 
Final Rule provides that prospective applicants may elect on a 
voluntary basis to undertake the pre-filing process prior to filing 
applications for other facilities subject to the Commission's 
jurisdiction under the Natural Gas Act (NGA).

II. Notice of Proposed Rulemaking

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

[[Page 60427]]

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

III. Comments

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

Related Jurisdictional Pipeline Facilities

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

[[Page 60428]]

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

Commission Response

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

[[Page 60429]]

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

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

[[Page 60430]]

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

Commission Response

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

Prospective Applicants Already Engaged in the Pre-Filing Process

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

[[Page 60431]]

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

Commission Response

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

Jurisdiction Over Facilities Used To ``Process'' Gas

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

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

Commission Response

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

Pipeline Facilities To Receive Regasified LNG From Terminals in Federal 
Waters

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

Commission Response

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

Need for Flexibility--Time Requirements

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

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

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

[[Page 60432]]

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

Commission Response

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

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

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

Waterway Suitability Assessment (WSA)

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

Commission Response

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

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

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

[[Page 60433]]

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

Commission Response

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

[[Page 60434]]

believes that EPAct 2005's mandate that the Commission's regulations 
must require that prospective applicants for authority to site and 
construct new LNG terminals cooperate with state agencies, the 
Commission believes that this objective is significantly promoted by 
its implementation of a mandatory pre-filing process for new LNG 
terminals, as required by EPAct 2005. In any event, however, the 
Commission wishes to make clear from the outset that it does not read 
the legislation as obligating the prospective applicant to provide 
state agencies with material that is not clearly required by those 
state agencies' regulations for the permits or purposes in which those 
agencies are involved. Not all state agencies may want to receive all 
of the information filed by a prospective applicant with the 
Commission, and prospective applicants likely would be unnecessarily 
burdened by a rigid requirement that they provide state agencies with 
pre-filing materials that a state agency has not specifically indicated 
that it wants to receive.
    67. As discussed in the NOPR, the pre-filing procedures set forth 
in the new regulations, like the current pre-filing procedures, require 
that prospective applicants engaged in the pre-filing process comply 
with the environmental conditions in Part 380 of the Commission's 
regulations. The Part 380 regulations admonish prospective applicants 
to file with appropriate state agencies as early as possible to avoid 
having the various permitting processes run consecutively rather than 
concurrently. The Part 380 regulations also require that prospective 
applicants submit extensive information and documentation which will be 
in the public record for the