[Federal Register Volume 64, Number 183 (Wednesday, September 22, 1999)]
[Rules and Regulations]
[Pages 51209-51222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24615]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 153, 157 and 375

[Docket No. RM98-16-000; Order No. 608]


Collaborative Procedures for Energy Facility Applications

Issued September 15, 1999.
AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule.

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SUMMARY: The Federal Energy Regulatory Commission, (Commission) is 
issuing a final rule to expand its procedural regulations governing the 
authorization of natural gas facilities and services. The regulations 
offer prospective applicants seeking to construct, operate or abandon 
natural gas facilities or services the option, in appropriate 
circumstances and prior to filing an application, of designing a 
collaborative process that includes environmental analysis and issue 
resolution. This pre-filing collaborative process is comparable to the 
process the Commission adopted two years ago with respect to 
applications for hydroelectric licenses, amendments and exemptions and, 
like those regulations, is optional and is designed to be adaptable to 
the facts and circumstances of the particular case. The regulations do 
not delete or replace any existing regulations.

EFFECTIVE DATE: This rule is effective October 22, 1999.

FOR FURTHER INFORMATION CONTACT:

Richard Hoffman, Office of Pipeline Regulation, 888 First Street, NE, 
Washington, DC 20426, (202) 208-0066
Gordon Wagner, Office of the General Counsel, 888 First Street, NE, 
Washington, DC 20426, (202) 219-0122.

SUPPLEMENTARY INFORMATION: In addition to publishing the full text of 
this document in the Federal Register, the Commission also provides all 
interested persons an opportunity to inspect or copy the contents of 
this document during normal business hours in the Public Reference Room 
at 888 First Street, NE, Room 2A, Washington, DC 20426.
    The Commission Issuance Posting System (CIPS) provides access to 
the texts of formal documents issued by the Commission from November 
14, 1994, to the present. CIPS can be accessed via Internet through 
FERC's Home page (http://www.ferc.fed.us) using the CIPS Link or the 
Energy Information Online icon, or by going directly to the following 
address: http//cips.ferc.fed.us/cips/default.htm. Documents will be 
available on CIPS in ASCII and WordPerfect 8.0. User assistance is 
available at 202-208-2474 or by E-mail to [email protected].
    This document is also available through the Commission's Records 
and Information Management System (RIMS), an electronic storage and 
retrieval system of documents submitted to and issued by the Commission 
after November 16, 1981. Documents from November 1995 to the present 
can be viewed and printed. RIMS is available in the Public Reference 
Room or remotely via Internet through FERC's Home Page using the RIMS 
link or the Energy Information Online icon, or by going directly to the 
following address: http://rimsweb1.ferc.fed.us/rims. User assistance is 
available at 202-208-2222, or by E-mail to [email protected].
    Finally, the complete text on diskette in WordPerfect format may be 
purchased from the Commission's copy contractor, RVJ International, 
Inc. RVJ International, Inc. is located in the Public Reference Room at 
888 First Street, NE, Washington, DC 20426.

I. Introduction

    The Federal Energy Regulatory Commission (Commission) is expanding 
its procedural regulations governing the authorization of natural gas 
facilities and services to offer prospective applicants seeking to 
construct, operate or abandon natural gas facilities or services the 
option, in appropriate circumstances and prior to filing an 
application, of using a collaborative process to identify and resolve 
significant issues. In addition, a

[[Page 51210]]

significant portion of the environmental review process can be 
completed as part of the pre-filing collaborative process. This process 
is comparable to the process the Commission adopted two years ago with 
respect to preparing applications for hydroelectric licenses, 
amendments and exemptions and, like those regulations, is optional and 
voluntary and is designed to be flexible and adaptable to the facts and 
circumstances of the particular case.
    A prospective gas facility applicant may continue to use the 
standard authorization procedures (which do not require any pre-filing 
consultation process). After a pre-filing collaboration has begun, an 
applicant may switch to the standard procedures and file its 
application if it believes that the pre-filing collaborative process is 
not productive. The regulations do not delete or replace any existing 
regulations.

II. Background

    On September 30, 1998, the Commission issued a Notice of Proposed 
Rulemaking (NOPR) 1 to expand its procedural regulations 
governing the authorization of natural gas facilities and services, and 
to consider certain revisions in its procedural regulations governing 
applications for licenses, amendments and exemptions for hydroelectric 
projects. In response to the comments received 2 and 
discussions by staff with potential participants in technical 
workshops,3 the Commission is adopting a final rule that 
offers an optional, pre-filing collaborative process to gas facility 
applicants and is not modifying any of the existing regulations for 
hydropower applicants.
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    \1\ FERC Stats. & Regs. (Proposed Regulations 1988-1998) para. 
32,536 (Sept. 30, 1998), 63 FR 59916 (Nov. 6, 1998).
    \2\ The commenters (and abbreviations to identify them) are 
listed in Appendix A.
    \3\ Staff conducted technical workshops on the NOPR in 
Washington, D.C., Houston, Texas, and Chicago, Illinois, on November 
5, 10 and 18, 1999, respectively.
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    Regardless of the process path the applicant selects, once the 
application is filed the Commission will review it for adequacy, 
publish a notice of it in the Federal Register, and invite comments and 
interventions. The Commission will then either complete or begin the 
NEPA process depending on the procedures that were employed in the pre-
filing stage. In a standard process, the NEPA process will begin only 
after the filing of the application. In the pre-filing collaborative 
process promulgated herein, the NEPA process can begin prior to the 
filing of the application, and the Commission will complete the NEPA 
process after the application is filed.

III. Discussion

A. Should the Pre-filing Collaborative Process be Authorized for Gas 
Applicants?

    In the NOPR, the Commission proposed a new Sec. 157.22 of the 
regulations to allow potential applicants for gas facilities under 
sections 3 and 7 of the Natural Gas Act (NGA) 4 to choose a 
pre-filing collaborative process in preparing an application for filing 
with the Commission. As proposed, and as adopted herein, the potential 
applicant can obtain the assistance of Commission staff in preparing 
its application and begin the NEPA process in the pre-filing stage. 
Before undertaking a collaboration, the applicant must show that it has 
contacted entities interested in its proposal, a consensus exists to 
support the collaborative process, and a communications protocol among 
the entities has been negotiated. A successful collaborative process 
might conclude with the filing of a complete application with the 
Commission that includes a preliminary draft NEPA document (a 
preliminary draft EA or EIS). Depending upon the willingness of the 
participants, including the applicant and resource agencies, the 
process could also result in the filing of an agreement or an offer of 
settlement with the Commission that addresses issues raised by the 
application, and to the extent possible resolves within the pre-filing 
collaborative process related legal processes mandated by other 
agencies.
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    \4\ 15 U.S.C. 717b and 717f(c).
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    Many commenters representing pipelines supported adoption of the 
proposed pre-filing collaborative process for the gas industry as long 
as the final rule incorporates certain provisions to maximize its 
chances for success. In particular, these commenters believe that use 
of the collaborative process should be optional and voluntary for the 
applicant, the process should be limited to environmental issues, and 
the applicant should be able to terminate the process and file its 
application at any time.5 One commenter took the same 
approach but wanted assurances that the collaborative process would not 
have as objectives the narrowing of areas of disagreement and the 
promotion of settlements, on the grounds that such efforts would 
distract from the NEPA process and lead to unnecessary delays. Another 
commenter was concerned that adoption of the proposed rule would have 
an adverse effect on existing and proposed practices aimed at 
streamlining the processing of gas applications by the Commission and 
would encumber pipelines in red tape, including restrictions and 
reporting requirements.6
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    \5\ E.g., INGAA at 1-2, Williams at 2-3, Williston at 2-3.
    \6\ Enron at 2-4.
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    Another commenter requested that the Commission clarify in the 
final rule that the process will not abridge the legal rights of any 
party to the subsequent Commission proceeding, and in particular, that 
all parties retain the right to protest all issues, including those 
addressed in the pre-filing process.7 One gas industry 
commenter was opposed to the proposed rule, suggesting that it would 
not help to certificate needed pipeline construction under the NGA and 
is subject to a number of legal infirmities.8
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    \7\ AGA at 2-8.
    \8\ Indicated Shippers at 2-3 and 7-15.
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    State agencies expressed support for extending the opportunity to 
engage in a pre-filing collaborative process to potential applicants 
for gas facilities, citing their favorable experience with such 
procedures used by potential applicants for hydropower 
facilities.9 Federal resource agencies that filed comments 
were generally supportive of pre-filing consultation processes, stating 
that such efforts have been helpful in addressing resource issues 
presented by hydropower applications.10
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    \9\ See, e.g., Wisconsin DNR at 1-2. State agencies also made 
recommendations for improvements in the proposed rule, which are 
discussed in the following sections.
    \10\ E.g., Commerce at 14, Interior at 1-2, EPA at 1, and Forest 
Service at 1,3.
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    Environmental groups favor the proposed rule. One commenter asked 
the Commission to explain in more detail how it would work for the gas 
industry and what its benefits would be.11 Landowners' 
comments generally favored improving Commission procedures in order to 
give landowners additional notice of pipeline proposals and the 
opportunity to express their views about them.12
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    \11\ Trout Unlimited at 5-6.
    \12\ Ferguson & Tavares at 1-2, Smith at 4-5, and Southern 
Landowners at 2-3.
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    We believe that the final rule adopted herein addresses and 
responds to the main concerns expressed by the gas industry and others 
in this rulemaking. As recommended by the commenters and discussed in 
the following sections, in the final rule we adopt a pre-filing 
collaborative process for potential applicants for gas facilities that 
is strictly voluntary, and the applicant may terminate the process at 
any time. We are neither prohibiting the

[[Page 51211]]

discussion of non-environmental issues in the process, nor requiring 
that such issues be addressed. It will be up to the applicants and the 
other participants in the process to decide which issues will be 
covered in each collaboration. We emphasize the flexibility of the pre-
filing process and are open to working cooperatively with potential 
applicants and participants to design pre-filing processes that are 
helpful to all concerned and lay the foundation for expeditious 
proceedings on gas applications and full compliance with the NGA, NEPA 
and other applicable statutes.
    We hope that the positive and open dialogue established by a pre-
filing collaborative process may help other state and federal agencies 
to coordinate the exercise of their regulatory mandates with the 
Commission's and will foster the resolution of disputed issues and the 
submission of offers of settlement. But a successful pre-filing 
collaborative process does not require such results. We stress that 
adoption of the new, optional pre-filing process will neither prejudice 
the processing of any applications that are prepared by standard means 
(i.e., absent pre-filing consultation), nor will use of the process 
curtail the legal rights of any party to intervene and participate 
fully in the Commission's post-filing proceedings. If a pre-filing 
process produces an agreement between the applicant and some or all of 
the participants, the applicant and participants may elect to treat the 
agreement as an offer of settlement and submit it in conjunction with 
an application. The offer of settlement will be treated like any other 
such offer, and be evaluated under the same legal standards that the 
Commission customarily applies.13
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    \13\ See 18 CFR 385.602 of the Commission's rules of practice 
and procedure.
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    While we recognize that nothing in the NGA or the Natural Gas 
Policy Act (NGPA) 14 specifically authorizes the adoption of 
pre-filing collaborative procedures for gas applicants, we perceive no 
prohibition of such procedures in either act. We also believe that 
affording this procedural option furthers a number of important legal 
and policy objectives dedicated to streamlining and coordinating the 
regulatory process and makes it more flexible and responsive to 
citizens' concerns, including those expressed by business, consumer, 
and environmental interests.15
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    \14\ 15 U.S.C. 3301-3432.
    \15\ See 40 U.S.C. 101.
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    Many commenters mentioned that they thought that the time required 
to complete a pre-filing collaborative process would not shorten the 
time from initial proposal to Commission action and questioned why an 
applicant for gas facilities or services would undertake the process. 
In the technical workshops, the Commission's staff specifically asked 
about the time frames used by applicants to prepare gas applications. 
Since only one commenter filed a response to the staff's 
question,16 the Commission is not in a position to determine 
whether the overall application preparation time of an applicant using 
a pre-filing collaborative process would be less, the same or longer 
than the preparation time of an applicant using the standard process 
(which does not require as much pre-filing consultation).17
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    \16\ El Paso at 8-9.
    \17\ INGAA is concerned that the new collaborative process could 
curtail existing pre-filing procedural rights. We clarify that 
nothing in the new regulations will displace or replace present pre-
filing options. The new regulations provide prospective applicants 
an additional means to engage in discussion with interested persons 
prior to filing.
    Trout Unlimited observes that not all proposed gas projects make 
promising candidates for a collaboration and thus requests that the 
Commission consider other forms of early public involvement. We note 
the existing procedural rights alluded to above constitute one such 
alternative; another is contemplated in the NOPR on Landowner 
Notification, Residential Area Designation, and Environmental Filing 
Requirements, 64 FR 27717 (May 21, 1999), IV FERC Stats. & Regs. 
para. 32,540 (Apr. 28, 1999).
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B. Should the Collaborative Process be Mandatory?

    Although the regulatory text in the NOPR proposed a pre-filing 
collaborative process for gas applicants that would be voluntary, the 
preamble to the NOPR asked whether the process should be made 
mandatory, not only for gas but also for hydropower applicants. The 
latter are currently using alternative pre-filing procedures that are 
similar to the collaborative procedures proposed in the NOPR for gas 
applicants; hydropower applicants may also use standard pre-filing 
consultation procedures that do not require the formation of a 
collaborative group.18 The Commission invited commenters to 
describe the advantages and disadvantages of making the pre-filing 
collaborative process mandatory for all applicants (gas and hydropower) 
and to describe how the proposal might work, especially if there were 
no consensus among the participants that such a process would be 
useful. The Commission also asked whether applicants should at least be 
required to make a good faith effort to undertake such a collaborative 
process and what should be done if an applicant could not document that 
it had made such an effort.
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    \18\ 18 CFR 4.38 and 16.8.
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    Almost without exception,19 commenters rejected the 
suggestion of mandating pre-filing collaboration for applicants for 
either gas or hydropower facilities. Commenters familiar with the 
alternative pre-filing process for hydropower applicants who use 
collaborative procedures stressed that the successful use of the 
process requires a strong consensus to support it. They contended that 
the Commission cannot mandate the cooperative attitude among the 
participants and applicant that is necessary for a productive 
collaboration; the willingness of participants and applicant to 
voluntarily support the process is critical.20 
Representatives of the hydropower industry also emphasized how helpful 
it is, when planning for the licensing of a hydropower project, to have 
current regulations that afford applicants a range of pre-filing 
options from which they may choose the process best suited to the 
preparation of their applications in each case.21 Gas 
industry commenters agreed, favoring flexibility in preparing their 
applications but stressing that timely approval of gas projects is 
often crucial to their viability. Many were concerned that requiring 
the use of pre-filing collaborative procedures in all cases might add 
significantly to the time and expense needed to obtain authorization 
for a proposal, which could preclude or end some time-sensitive project 
proposals.22 Gas commenters further stated that the proposed 
requirement that all applicants demonstrate at least a good faith 
attempt to initiate a pre-filing collaborative process would place an 
additional administrative burden on the applicant and would not serve 
any useful purpose.23
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    \19\ EDF at 2. EDF advocated requiring all applicants for 
natural gas facilities and services to demonstrate that they have 
made a good-faith effort to undertake a pre-filing collaboration.
    \20\ NHA at 2-6; Northwest at 3-6; EEI at 9-12; CRITFC at 1-2; 
HRC at 4-6; EPA; Commerce at 2; Interior at 7-8; NY DEC at 2.
    \21\ SoCal Ed at 3-5; Sacramento at 2-3; California Water at 3-
6; PG&E at 9.
    \22\ AGA at 6-7; ANR at 3; El Paso at 14-17; Great Lakes at 6; 
Tejas at 5-6; Williams at 7; Williston at 4.
    \23\ AGA at 4; PG&E at 14-15.
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    Commenters favoring voluntary collaboration 24 noted 
that gas certificates and abandonments cover a

[[Page 51212]]

broad range of different types of projects, and asserted that pre-
filing collaboration will be ineffective for at least some of these 
projects. Commenters pointed out that prospective project sponsors are 
in the best position to judge whether a collaborative process is likely 
to be fruitful and should therefore have the flexibility either to 
request a pre-filing collaboration or to file an application without 
using such a process.
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    \24\ Among those favoring a voluntary process are California 
Water at 1; Great Lakes at 2-4; INGAA at 2; Nicor at 3-4; PG&E at 7-
9, 16; Industrials at 4-8; Sempra at 2; Williams at 6-7; Wisconsin 
DNR at 1-2; and Williston at 3-4.
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    In view of the comments, the Commission will not mandate that all 
project applicants engage in a pre-filing collaboration or explain why 
efforts to do so were unavailing. The final rule adopts regulations 
similar to those proposed in the NOPR in order to offer applicants for 
gas facilities or services the option of undertaking a pre-filing 
collaboration. Those applicants may continue to use the standard 
certification procedures (which, for gas applicants, do not require any 
pre-filing consultation process). After a pre-filing collaboration has 
begun, the applicant may switch to the standard procedures and file its 
application if it believes that the pre-filing collaborative process is 
not productive.

C. Should the Collaborative Process be Extended to Include a Draft EIS 
or Draft FEIS?

    In the preamble to the NOPR, the Commission asked whether it would 
be appropriate to extend the pre-filing collaborative process beyond 
the stage of preparing a preliminary draft NEPA document, as provided 
under current regulations for hydropower applicants and proposed in the 
NOPR for gas applicants. The Commission asked whether it would be 
appropriate for Commission staff, in the pre-filing stage, to issue a 
draft EIS and for participants in a pre-filing collaborative process to 
review the comments on the draft EIS and prepare either a final EIS or 
a preliminary draft of a final EIS. The Commission asked whether such a 
process should be permitted prior to the filing of the application, 
without first issuing a notice inviting interested persons to intervene 
as parties to a formal proceeding.
    While a few commenters thought that the Commission should consider 
extending the NEPA process (prior to the filing of an application) 
beyond the point allowed by current regulations for hydropower 
applicants (i.e., the preparation of a preliminary draft EA or 
EIS),25 most commenters thought that such a proposal was 
ill-advised and may be illegal.26 Commenters stated that the 
proposal would complicate the pre-filing collaborative process and 
could undercut one of its central purposes, allowing the applicant to 
craft a proposal in its application that would respond to the resource 
concerns raised by the participants in the pre-filing process. An 
attempt to carry NEPA further in the pre-filing stage may entangle the 
pre-filing collaboration with the Commission's post-filing review and 
decision-making process, which should not commence until after the 
application is filed and a legal proceeding begins, with all its 
attendant protections for parties.
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    \25\ E.g., EEI at 12 and Northwest at 7.
    \26\ E.g., California Water at 7-9, Interior at 5, Commerce at 
3-4, PG&E at 10-11, and HRC at 3.
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    We agree with the majority of commenters on this issue. The 
rulemaking establishing the alternative pre-filing procedures for 
hydropower applications carefully balanced the interests of 
accelerating the NEPA process by beginning it, with staff's assistance, 
in the pre-filing stage, against the interests of preserving the 
Commission's responsibilities--under the Federal Power Act 
(FPA),27 NEPA, and other applicable statutes--to conduct its 
own independent review of the application after it has been filed. That 
balance is best accomplished as the current hydropower regulations 
provide, by ending the pre-filing process with the preparation of an 
application and a preliminary draft EA or EIS. Only after the filing of 
these documents in conjunction with an application will the Commission 
complete the NEPA process by issuing a draft EA or EIS. Then, in light 
of the comments received, and any additional analysis and review deemed 
necessary, the Commission issues the final EA or EIS, followed by a 
decision on the application.28 To try to carry the NEPA 
process further in the pre-filing stage would upset this balance, raise 
the risks outlined by the commenters, and call into question the 
integrity of the Commission's review and decision-making processes.
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    \27\ 16 U.S.C. 791a et seq.
    \28\ Although not required by NEPA, the Commission in its 
hydropower licensing program issues draft EA's for comment.
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D. Should there be Deadlines on the Collaborative Process?

    The proposed rule required the submission of certain reports by the 
applicant in the course of the pre-filing collaborative process, 
allowed the participants in the process to set reasonable deadlines for 
requests for scientific studies or alternative route analyses, and 
provided that the Commission may set deadlines for preliminary resource 
agency recommendations, conditions, and comments, to be submitted in 
final form after the filing of the application with the 
Commission.29
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    \29\ Proposed 18 CFR 157.22(f)(2), (7) and (8).
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    The Commission invited comment on whether any limitations of time 
should be placed on the pre-filing collaborative process and, if so, 
what time limits might be appropriate. Comment was sought on how best 
to ensure that all participants in the process have a full and fair 
opportunity to participate in a manner that facilitates cooperative 
progress within a reasonable time frame.
    Some commenters wanted the Commission to set deadlines for pre-
filing processes and participants in order to avoid delaying the filing 
of certificate applications.30 One commenter suggested the 
potential applicant propose time limits for a collaboration in its 
initial request to employ the pre-filing process.31 Another 
commenter argued that participants and Commission staff should follow 
through to establish a post-filing schedule for submitting comments, 
data, and documents.32
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    \30\ Industrials at 8; SoCal Ed at 7-8; NY DEC at 4, citing 
proposed 18 CFR 157.22(f)(8).
    \31\ PG&E at 17.
    \32\ Forest Service at 2.
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    Other commenters observed that establishing deadlines can be 
effective in moving hydropower alternative pre-filing processes along, 
but concluded that given the relatively short period that this process 
has been in effect for hydropower applicants, it would be premature for 
the Commission to set time limits on the pre-filing 
process.33
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    \33\ California Water at 10.
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    Many commenters wanted to avoid any Commission-imposed deadlines on 
the pre-filing process, preferring that the collaborative participants 
concur on deadlines.34 Concerns were expressed that any 
fixed time limit applied across the board to the wide variety of 
possible processes would be arbitrary and burdensome 35 and 
that such constraints might pressure participants into making unwanted 
concessions.36 One commenter observed that any imposition of 
time limits in the pre-filing process must not conflict with the time 
frames provided under the regulations of the affected 
agencies.37
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    \34\ Wisconsin DNR at 2; Interior at 6-7; Forest Service at 2; 
Commerce at 2-3; and AGA at 8.
    \35\ PG&E at 11, 17; Forest Service at 2; Interior at 7; AGA at 
8.
    \36\ Wisconsin DNR at 2.
    \37\ Advisory Council at 2, citing 36 CFR part 800.
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    In light of the commenters' concerns, we see no reason to establish 
in the final rule any general deadlines for

[[Page 51213]]

completion of stages in the pre-filing collaborative process; this 
issue is best left to the potential applicant and the participants in 
each process to decide. A collaborative process must be flexible.
    We do not anticipate that any deadlines agreed upon in the pre-
filing collaborative process, or any set by the Commission in the 
proceeding on the filed application, would conflict with those set by 
other agencies with related authorities. Should such a conflict arise, 
we believe it can be resolved on a case-by-case basis.
    It would not be appropriate to add specific provisions for the 
Commission to confer with a collaborative group to establish deadlines 
after an application is filed. Once an application has been filed, 
existing Commission practices and regulatory deadlines come into effect 
in the context of an administrative proceeding, and all deadlines will 
be set in reference to established Commission regulations, practices 
and procedures applicable to such proceedings. As appropriate, the 
Commission will consult with parties in setting such deadlines.

E. Should the Collaborative Process be Limited to Environmental Issues?

    The NOPR noted that there are sometimes contentious non-
environmental issues that may undermine successful collaboration in a 
pre-filing consultation process and sought comment on whether the 
process for gas applicants should address only the environmental issues 
associated with the potential application. While the main focus of the 
NOPR was to propose regulations that would allow for resolution of 
environmental issues prior to the filing of applications, the NOPR 
asked whether the collaborative process should be extended to non-
environmental issues such as the need for the project, a comparison 
with competing projects, capacity allocation, rates, and the effects of 
abandonments on existing customers.
    Some commenters believed that both environmental and non-
environmental issues should be considered in the pre-filing process, at 
least in its initial phases, with the participants ultimately deciding 
the scope of issues to be addressed.38 The majority of the 
commenters, however, stated that the pre-filing process should deal 
exclusively with environmental issues.39
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    \38\ Interior at 5; NY DEC at 2; Nicor at 5; NHA at 5.
    \39\ INGAA at 5; Williston at 5; Great Lakes at 7; Sempra at 2; 
Williams at 3; Industrials at 7; Duke at 11-12; AGA at 2.
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    The competitive nature of many NGA applications was most frequently 
cited as the reason why non-environmental issues should not be made 
part of the pre-filing process. Some of the commenters expressed 
concern that certain entities might try to use the pre-filing 
collaborative process as a means to delay the preparation and filing of 
applications of competitors, which would be contrary to the 
Commission's policy of promoting competition in the 
industry.40 Several commenters asserted that allowing the 
pre-filing collaborative process to address non-environmental issues 
would cause unnecessary delay, emphasizing that the Commission's 
existing procedures are sufficient to address such topics as the need 
for a project, rate design, and other market-based issues.41
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    \40\ Industrials at 8; AGA at 6; and Great Lakes at 6.
    \41\ Williston at 5-6; Great Lakes at 6; Sempra at 2; Williams 
at 5; and Duke at 19.
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    Commenters had varied opinions as to what constitutes environmental 
issues, with one commenter requesting that the Commission clarify what 
is an environmental issue.42 While there was general 
agreement that issues such as need, capacity allocation and rates 
should not be included within the review of environmental issues, some 
commenters considered such issues as alternatives to a certificate 
proposal, landowner matters, terms of service, and related market and 
competitive matters to be non-environmental issues.43 Other 
commenters expressed the view that it would be difficult, if not 
impossible, to differentiate between environmental and non-
environmental issues.44 Many commenters stated that the 
stakeholders involved in a collaborative team should be the ones to 
decide what issues will be addressed in the pre-filing 
process.45
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    \42\ Duke at 20.
    \43\ Sempra at 2; Williams at 3; Industrials at 7; Duke at 12.
    \44\ Interior at 4; Nicor at 5.
    \45\ NHA at 7; Nicor at 5; Interior at 4; NY DEC at 2.
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    We agree with the commenters that propose that the potential gas 
applicant and participants in any pre-filing process should determine 
the range of issues to be addressed in a collaboration. While the final 
rule adopted herein sets forth procedures for establishing a pre-filing 
collaborative process and the preparation of a preliminary draft NEPA 
document, nothing in it precludes the applicant and the participants 
from voluntarily deciding to use the process to address non-
environmental issues which are not required to be a part of the NEPA 
process.

F. Procedural Questions

(1) Notice
    As proposed in the NOPR, Sec. 157.22(c)(1) of the rule required an 
applicant contemplating a pre-filing collaboration to make a 
``reasonable effort'' to contact all ``resource agencies, Indian 
tribes, citizens'' groups, landowners, customers, and others affected 
by the applicant's proposal.'' Proposed Sec. 157.22(c)(3) would require 
such an applicant to send a copy of its request to use the pre-filing 
collaborative process to the same entities. Under Sec. 157.22(d)(1), 
the applicant's request must include provisions to distribute a 
description of its proposed project (including its intended purpose, 
location and scope, and the estimated dates of construction) at an 
initial information meeting (or meetings) open to the public. Pursuant 
to Sec. 157.22(e), the Commission will publish in the Federal Register 
a notice of the request to initiate a pre-filing collaborative process 
and invite comments on the request. The Director of the Office of 
Pipeline Regulation (OPR) will review the comments submitted on the 
applicant's request and decide whether to approve the proposed process.
    If a request to use the process is approved, under 
Sec. 157.22(f)(1), the Commission will give notice in the Federal 
Register; the applicant will give notice in local newspaper(s) in the 
county or counties in which the project is proposed to be located, of 
the initial public meeting(s) and, subsequently, the scoping of 
environmental issues.46 Under Sec. 157.22(f)(5), the 
applicant must maintain a public file of all the relevant documents 
generated during the process, and the Commission will maintain a public 
file of the initial description of the proposed project, each scoping 
document, the periodic reports on the process and the preliminary draft 
EA or EIS. Under Sec. 157.22(f)(4), the applicant must send copies of 
all these filings to each participant in the pre-filing collaborative 
process that requests a copy.
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    \46\ In the interest of simplifying the process, we have deleted 
proposed 18 CFR 157.22(f)(2), which would have required the 
potential applicant to file periodic progress reports with the 
Commission. We have also deleted proposed 18 CFR 157.22(b), 
describing the goals of the process, because those goals are 
adequately described in the preamble herein and do not need to be 
articulated again in the regulatory text.
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    Some commenters contended that these procedures are inadequate to 
ensure that all interested parties: (1) Receive actual notice of the 
intent to

[[Page 51214]]

initiate a collaboration; (2) are informed that a collaboration has 
been initiated; and (3) have a meaningful opportunity to participate 
and be heard in a collaboration.47
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    \47\ Advisory Council at 1-2; Indicated Shippers at 8-12; Trout 
Unlimited at 3-4.
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    Some commenters proposed that notice of the request to use the 
collaborative process be sent by certified mail to all landowners 
directly impacted by a proposed project.48 One commenter 
expressed concern that without confirmed notification trespassing 
49 may occur.50 This commenter also asked: (1) 
Whether the Commission will verify that the list of contacted 
landowners is accurate and complete; (2) how participants will be 
informed of relevant Commission filings; and (3) how participants can 
obtain information about scientific studies and alternative route 
analyses and deadlines therefore.51
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    \48\ Ferguson & Tavares at 1; Southern Landowners at 2-3.
    \49\ Trespass is governed by state law, and is not affected by 
the final rule because the rule adopts procedures that apply prior 
to the issuance of a certificate. Specific allegations of trespass 
may be referred to the Commission's Enforcement Task Force Hotline 
at (202) 208-1390 or (877) 303-4340 or by E-mail to 
[email protected].
    \50\ Ferguson & Tavares at 1.
    \51\ Id.
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    One commenter was concerned that once underway, a pre-filing 
collaborative process may so change the parameters of a proposed 
project that it may affect persons whom the applicant did not initially 
inform. That commenter urged us to adopt some means to inform and bring 
such persons into an ongoing collaboration.52
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    \52\ Indicated Shippers at 12.
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    One commenter requested that the Commission clearly state how the 
universe of potentially interested entities is to be defined and urged 
that the Commission require the applicant to include the State Historic 
Preservation Officer (SHPO) or Tribal Historic Preservation Officer 
(THPO) in any pre-filing collaborative process.53
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    \53\ Advisory Council at 2.
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    One commenter requested that the Commission describe in greater 
specificity the minimum required contents of the project description 
included in the applicant's initial notice.54 To ensure that 
participants have a full understanding of the collaborative process, 
that commenter proposed that the Commission publish an explanation with 
guidelines covering the process and require that the applicant 
distribute these guidelines to potentially interested entities with its 
initial notice of its request to undertake a pre-filing collaboration.
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    \54\ NY DEC at 3.
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    We believe that with the changes discussed herein, the notice 
procedures proposed in the NOPR should be adopted. In the final rule, 
Sec. 157.22(c)(1) requires an applicant to make a reasonable effort to 
contact ``all entities affected by the applicant's proposal.'' As 
revised herein, Sec. 157.22(c)(3) requires the applicant, within five 
days, to send a copy of the request to use the pre-filing collaborative 
process on ``all affected resource agencies and Indian tribes and on 
all entities that have expressed an interest in the collaborative 
process.'' 55 The Commission will publish notice of the 
request in the Federal Register. If the use of the pre-filing process 
is approved, the applicant must conduct a public meeting or meetings at 
which a description of its proposed project will be distributed. The 
Commission will give notice in the Federal Register and the applicant 
will give notice in local newspapers of the initial public meeting(s) 
and of the scoping of environmental issues.56 As the pre-
filing process unfolds, the applicant must keep a complete file, open 
to the public, of the process; essential information about the process 
must be submitted to the Commission for insertion into its public file, 
and copies of these filings must be sent to each participant in the 
process that requests a copy. In addition, the regulations require the 
negotiation of a communications protocol, governing the flow of 
information between the participants in the process.
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    \55\ The regulatory language adopted herein is based on 18 CFR 
4.43(i), which is applicable to hydropower applicants using the 
alternative pre-filing consultation process.
    \56\ The timing and sequencing of notices of environmental 
scoping may vary considerably among different projects and 
collaborative processes.
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    The notice procedures for the pre-filing collaborative process for 
potential gas applicants are similar to the comparable procedures now 
in effect for hydropower applicants. We are not aware of any 
significant noticing problems under the hydropower procedures. We do 
not think it is useful to try to describe further in the final rule the 
universe of potentially interested entities. We note the Commission 
will have the opportunity to review the adequacy of the applicant's 
notification efforts when deciding whether to permit a potential 
applicant to use the pre-filing collaborative process. Further, the 
Commission's staff will work closely with the applicant and 
participants during the process to ensure appropriate efforts are made 
to inform interested persons of the proposed project and of any 
subsequent changes to the initial proposal.57
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    \57\ The Commission encourages applicants and participants, to 
the extent practical on a case-by-case basis, to consider making use 
of the Internet to supplement the notification procedures mandated 
herein.
---------------------------------------------------------------------------

    We note that the regulations require that notice of the request be 
sent to resource agencies and Indian tribes. We believe that this 
notice, along with the required Federal Register notice, is sufficient 
to alert the SHPO or THPO that a pre-filing collaborative process is 
being considered. In response to the concerns raised in the comments 
and to clarify these noticing requirements, we are adding in the final 
rule, at new Sec. 157.1, definitions of ``Indian tribe'' and ``resource 
agency.'' These definitions are based on similar definitions in the 
Commission's hydropower regulations, which apply to potential 
hydropower applicants using the standard or alternative pre-filing 
consultation processes.58
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    \58\ See 18 CFR 4.30, 4.34(i), 4.38 and 16.8.
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    We believe that the concerns about notification to landowners are 
adequately addressed by the provisions in the final rule, along with 
the regulations proposed in Docket No. RM98-17-000,59 which 
include prompt notification to landowners by mail once an application 
for gas facilities is filed with the Commission. We are not persuaded 
that there is any need in the pre-filing process for the applicant and 
the Commission to provide landowners' notice by certified mail.
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    \59\ Landowner Notification, Expanded Categorical Exclusions, 
and Other Environmental Filing Requirements, Notice of Proposed 
Rulemaking, 64 FR 27717 (May 21, 1999), IV FERC Stats. & Regs. para. 
32,540 (Apr. 28, 1999).
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    How all types of information, including studies and analyses that 
are part of the NEPA process, are distributed and made available to the 
public is an issue we expect that the applicant and participants will 
take up, resolve, and make part of the communications protocol to be 
filed with each request for a collaborative process.
    We do not believe it is appropriate to specify further in the 
regulations what description of the proposed project the potential 
applicant must make in its notices and what procedures may be used for 
participating in the pre-filing collaborative process. We believe the 
project description required by the final rule is both broad and 
particular enough to alert entities to proposals that they may want to 
monitor or participate in. As far as the procedural steps in a 
collaborative process and the

[[Page 51215]]

participants' roles are concerned, we will leave that up to the 
applicant and the collaborative participants to decide in each case. To 
assist interested entities in developing an understanding of these 
types of processes and their role in the Commission's regulation of gas 
projects, we are incorporating into Sec. 157.22(c)(3) of the final rule 
a requirement that a potential applicant requesting to use a pre-filing 
collaborative process must include a copy of the regulations adopted 
herein when it is sending notice of its request to all affected 
resource agencies, Indian tribes, and entities that have expressed an 
interest in the process.60
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    \60\ As a means to inform potentially interested persons of 
procedures generally applicable to pipeline projects, the Commission 
has made available to the public, in pamphlet form, answers to 
questions frequently asked concerning gas certificate applications. 
In the event the need arises for a similar procedural summary or a 
set of guidelines with respect to the pre-filing collaborative 
process for gas facilities, the Commission will make it available in 
the same manner.
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(2) Involvement of Commission Staff
    Some commenters asked why Commission approval should be required 
for an applicant to use a pre-filing collaborative 
process.61 It is not necessary for applicants to seek 
Commission approval for activities which take place without substantial 
involvement by Commission staff and without the preparation of a draft 
NEPA document.
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    \61\ Martin at 1, Enron at 3.
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    One commenter urged the Commission to describe in greater detail 
the benefits available through use of the process and to clarify the 
role and purpose of Commission staff involvement.62 The role 
of Commission staff is to guide and support the pre-filing process but 
not to lead or direct it. Participants in the process may choose a 
``neutral,'' such as a facilitator or mediator, to coordinate the 
collaborative group's efforts, and this role may be filled by any 
person that the group selects.63
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    \62\ Trout Unlimited at 5-6.
    \63\ In the interest of simplifying the process, we have deleted 
proposed Sec. 157.22(f)(9), which would have authorized participants 
to request dispute resolution by the Commission.
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(3) Consensus
    As proposed in the NOPR, and as adopted herein in 
Sec. 157.22(b)(1), a potential applicant requesting to use a pre-filing 
collaborative process must contact entities affected by its proposal 
and demonstrate that a ``consensus exists that the use of the 
collaborative process is appropriate under the circumstances.'' Under 
Sec. 157.22(f), a participant that has cooperated in the pre-filing 
process can petition the Commission for an order to terminate the 
process if a consensus to support it no longer exists and if continued 
use of the process would not be productive.64 In the NOPR, 
we explained that the requirement for a consensus means that ``the 
weight of opinions expressed makes it reasonable to conclude that under 
the circumstances the use of the collaborative process will be 
productive.'' The applicant's consent to use of this process would be 
required, but the agreement of everyone interested in the proposal 
would not be required for the Commission's approval of the process. The 
term ``consensus'' is also used in Sec. 157.22(f), providing that if a 
consensus supporting use of the process no longer exists, a participant 
can petition the Commission for an order directing the applicant to use 
appropriate procedures to complete its application.
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    \64\ The petitioner must also serve a copy of the petition on 
all participants and recommend specific procedures for completing 
the pre-filing process.
---------------------------------------------------------------------------

    A number of commenters requested clarification regarding the 
criteria the Commission will use in determining whether to approve or 
deny an applicant's request to initiate a pre-filing collaborative 
process.65 One commenter argued that ``consensus'' should be 
defined as ``unanimous agreement by the various stakeholders,'' 
66 while other commenters urged that the Commission not 
approve a request to use a pre-filing collaborative process unless 
``critical constituencies'' or a majority of the ``customers/shippers'' 
that may use the proposed facilities endorsed the process.67
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    \65\ E.g., NY DEC at 3-4.
    \66\ Interior at 3.
    \67\ Industrials at 8-10; EDF at 2.
---------------------------------------------------------------------------

    One commenter was unclear if the Commission, in considering 
comments in response to a request to initiate a collaboration will, 
pursuant to proposed Sec. 157.22(e), accept comments only from entities 
previously notified by the applicant or will also accept comments from 
entities not so notified. That commenter recommended revising proposed 
Secs. 157.22(c) and (e) 68 to specify whether the Commission 
may compel an applicant to admit a late-arriving interested entity to 
an ongoing collaboration.69
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    \68\ Because of our deletion of several subsections of the 
regulations that were proposed in the NOPR, as mentioned above, 
proposed Secs. 157.22(c) and (e), as well as other subsections, have 
been renumbered in the final rule.
    \69\ NY DEC at 3.
---------------------------------------------------------------------------

    The Commission addressed similar concerns in the rulemaking 
adopting the regulations governing the alternative pre-filing process 
for hydropower applicants. 70 Our subsequent experience with 
those regulations does not lead us to change the conclusion we reached 
at that time. For the purposes of determining whether the Commission 
should grant an applicant's request to use the pre-filing collaborative 
process and determining whether such a process should be allowed to 
continue, ``consensus'' means ``general agreement'' or ``collective 
opinion: The judgment arrived at by most of those concerned.'' While 
unanimity among the participants in a collaborative process reflects 
consensus, it is not essential to support a consensual approach. In its 
request to use the pre-filing collaborative process, the applicant need 
only show that the weight of opinions expressed by the entities 
interested in the process makes it reasonable to conclude that under 
the circumstances use of the process will be productive. No signed 
agreement or use of a particular voting procedure is required to 
memorialize the consensus on use of the process. The Commission will 
apply similar standards in evaluating any petition alleging that the 
consensus for the process has collapsed and asking for an order to 
bring it to a conclusion.
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    \70\ Order No. 596, 62 FR 59802 (Nov. 5, 1997), III FERC Stats. 
& Regs. para. 31,057 at 30,638-39 (1997).
---------------------------------------------------------------------------

    As stated in Order No. 596, the Commission expects the potential 
applicant, prior to filing its request to use the pre-filing 
collaborative process, to engage in a series of interactions with those 
who may be interested in its proposal, going beyond an exchange of 
letters. Such interactions could include teleconferences and meetings 
involving Commission staff to explore the use of the process. In some 
cases the applicant's showing in support of its request to use the 
process may rely on a lack of objections raised in such meetings, in 
order to allow the applicant and the participants an opportunity to try 
the process. Where the position of potentially key players in a 
collaborative process is not clear, the Commission's staff may reach 
out to solicit their position before reaching any decision on a request 
to use the process. If entities that appear to be key players oppose 
the use of a collaborative process, we will carefully weigh whether the 
process should be allowed to proceed under these circumstances, and 
staff may hold discussions with those concerned to try to find ways to 
reconcile different views on the use of the process.

[[Page 51216]]

    We are therefore not making any changes in the final rule regarding 
``consensus'' as it applies to requests to use or to discontinue the 
pre-filing collaborative process. Likewise, we do not believe that it 
would be appropriate to specify criteria that the Commission will use 
in making decisions on such requests, beyond the general considerations 
outlined above.
    We clarify that in deciding whether to approve an applicant's 
request to use the pre-filing collaborative process, under 
Sec. 157.22(d) (as it is numbered in the final rule), all timely 
submitted comments will be considered, whether in response to actual 
notice by the applicant or not.
    Because the procedures for the pre-filing collaborative process in 
the final rule provide for abundant notice to potentially interested 
persons and entities, as discussed above, latecomers may enter as 
participants provided they do not delay or disrupt the process, i.e., 
latecomers must deal with the applicant and the collaborative group 
that has formed and with any ground rules that have already been 
established. For these reasons we strongly encourage those interested 
in an applicant's proposal to participate from the outset in any pre-
filing collaborative process that is authorized, if not directly then 
indirectly through others with similar interests. At the very least, we 
expect interested entities to monitor the progress of a collaboration 
through the many sources of public information that the rule requires.
    (4) Concluding the Pre-Filing Process
    As noted above, under proposed Sec. 157.22(g) 71 a 
participant that has cooperated in the pre-filing process can petition 
the Commission for an order to terminate the process if a consensus to 
support it no longer exists and if continued use of the process would 
not be productive. The request must recommend specific procedures that 
are appropriate to use to complete the process, and the petition must 
be served on all the other participants in the process.
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    \71\ Proposed Sec. 157.22(g) appears as Sec. 157.22(f) in the 
final rule.
---------------------------------------------------------------------------

    One commenter requested that proposed Sec. 157.22(g) be modified to 
state that when a participant submits a petition to the Commission 
claiming that a consensus no longer exists to support the process, 
other participants may submit comments in response to that 
petition.72 The commenter also asked whether a collaboration 
might continue without the participation of the applicant and proposed 
that the Commission describe the circumstances under which it would 
intervene to end a pre-filing collaborative process.
---------------------------------------------------------------------------

    \72\ NY DEC at 3-4.
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    Several commenters were concerned that proposed Sec. 157.22(g) 
would impede a prospective applicant's right to file an application 
with the Commission at any time and, by so filing, end a pre-filing 
collaborative process at the applicant's discretion.73 
Another commenter suggested that if a pre-filing collaboration 
stagnates, the Commission might require the applicant to show cause why 
pre-filing efforts should not end and an application be 
filed.74
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    \73\ El Paso at 19-20; Enron at 3; Great Lakes at 4-5; INGAA at 
4; PG&E at 18; Tejas at 14-15; Williston at 6-7.
    \74\ Commerce at 2-3.
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    When a participant in a pre-filing collaborative process believes 
that the consensus supporting the use of the process has collapsed and 
petitions the Commission for an order terminating it, other 
participants may submit a response to the Commission. Any such response 
should be served on all other participants and submitted to the 
Commission as soon as possible. In seeking to determine whether a 
consensus still exists to support continuation of the process, the 
Commission will consider both the petition and timely responses to it. 
With this clarification, we see no need to revise proposed 
Sec. 157.22(g) in the final rule.
    The proposed regulations were not intended to preclude an applicant 
from withdrawing from and ending an ongoing pre-filing collaborative 
process by filing an application, which an applicant may do under 
current practice and procedures. As stated in the preamble to the NOPR: 
``Entering into a pre-filing collaboration will not bar an applicant 
from interrupting pre-filing efforts by exercising its existing option 
to file an application.'' In response to the concerns expressed in the 
comments, and in order to ensure that the new regulations in no way 
intrude on a project sponsor's existing rights, in the final rule we 
are adding a new Sec. 157.22(h) to clarify that these rights are not 
affected by the rule.
    We are also changing the first sentence of proposed Sec. 157.22(g) 
to make it clear that any order issued in response to a petition will 
only end the pre-filing process and will not affect the applicant's 
existing right to file an application for the proposed 
facilities.75
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    \75\ Hydropower applicants using the alternative pre-filing 
procedures may be subject to different requirements in such a case, 
as they must fulfil detailed pre-filing consultation requirements 
under the standard process. See 18 CFR 4.38 and 16.8.
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(5) Offer of Settlement
    The NOPR anticipated that one outcome of a pre-filing collaborative 
process could be a settlement or agreement on issues by the 
participants. The results could be submitted to the Commission with the 
application and the preliminary draft NEPA document as an offer of 
settlement covering all or certain issues raised in the process, as a 
stipulation of facts, or in conjunction with certain documentation 
(such as studies that have been conducted pursuant to the process).
    Commenters requested that the Commission clarify in the regulations 
whether an agreement or offer of settlement resulting from a pre-filing 
process is binding on all the participants in the process and pointed 
out that in some cases such settlements may not satisfy criteria 
established in applicable statutes and regulations.76
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    \76\ NY DEC at 3, Advisory Council at 2.
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    One commenter was concerned that entities opposing a collaboration 
are left no option but to refuse to participate, risking exclusion from 
``a settlement that would effectively moot the formal proceeding before 
the Commission.'' 77
---------------------------------------------------------------------------

    \77\ Indicated Shippers at 10.
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    The manner in which a settlement is binding on signatories is a 
matter properly described in the language of the settlement. The terms 
of a settlement may bar signatories from protesting certain aspects of 
an application. We note, however, that no provision in the Commission's 
regulations restricts a collaborative participant or non-participant 
from intervening, commenting on, and protesting any aspect of an 
application or settlement. Collaborative participants that are non-
signatories to a settlement or agreement are obviously not committed to 
the terms of that settlement or agreement.78
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    \78\ See, e.g., Kern River Gas Transmission Company, 87 FERC 
para. 61,128 at 61,506 (1999), in which the Commission found that a 
party had not been afforded the opportunity to participate in 
discussions leading to a rate settlement, and ``in the spirit of the 
effort already expended,'' withheld ruling on the pending settlement 
while the Director of the Commission's Dispute Resolution Service 
convened ``a meeting of the parties to arrange a process that will 
foster negotiation and agreement.''
---------------------------------------------------------------------------

    In any proceeding on an application in which an offer of settlement 
is filed, the Commission will carefully review the offer, including all 
comments supporting or opposing it, to determine whether the settlement 
proposed complies with all applicable legal standards and Commission 
policy. The Commission will not approve any offer unless it is 
supported by substantial evidence such as documents and studies. When 
evidence is developed in

[[Page 51217]]

the course of a pre-filing collaboration, the applicant should include 
such information in the administrative record in the proceeding on the 
application.
(6) Post-Filing Changes in Proposed Facilities
    The NOPR did not address the impact of an applicant's participation 
in a pre-filing process on its rights to revise its proposal after 
filing an application with the Commission.
    One commenter stated that, in the past, changed circumstances have 
compelled it to modify the terms of a requested authorization after the 
application was initially filed and expressed concern that pre-filing 
discussions cannot anticipate or address such changes to a proposal 
that may become necessary after filing.79 This commenter 
claimed that the existing certificate process is flexible enough to 
accommodate such post-filing changes and was concerned that 
understandings reached in a pre-filing collaboration could inhibit or 
delay the submission of amendments (incorporating such changes) to an 
application that has been filed.
---------------------------------------------------------------------------

    \79\ Tejas at 11-12.
---------------------------------------------------------------------------

    The final rule does not restrict an applicant's ability to make 
changes to the parameters of a proposed project after the application 
is filed. Depending on the extent of the changes, the application may 
need to be amended or refiled. An applicant may make a post-filing 
change in a project that raises issues that go beyond those addressed 
in the pre-filing process. Such post-filing changes may well reflect 
the applicant's reasoned response to recommendations received in the 
pre-filing process or in the post-filing review, including the NEPA 
process. The new regulations will not in any way inhibit or delay an 
applicant from making changes to a proposed project.
    The pre-filing process is not designed to compel an applicant to 
bind itself to build or abandon a project as initially proposed. In the 
context of a collaboration, a project sponsor may, but need not, make 
commitments that vary in their rigidity and enforceability as a means 
to firm up support for or satisfy critics of a project. Such efforts 
are no different from the precedent agreements gas pipelines have 
secured under existing procedures to show demand for proposed new 
capacity. Similarly, in order to address concerns raised by landowners 
or resource agencies, pipelines have often committed to routing a 
proposed line along a particular right of way prior to filing an 
application. An applicant may feel bound to honor such commitments made 
prior to filing, whether as part of a pre-filing collaborative process 
or not.
    Of course parties to a proceeding on an application for gas 
facilities, including parties that did not participate in the pre-
filing process, may oppose the application as initially filed or as 
revised or amended. The Commission will consider any such opposition 
prior to issuing a decision on the application.

G. Miscellaneous

(1) Study Requests Made during the Pre-filing Process
    The section proposed in the NOPR as Sec. 57.22(f)(7) and adopted 
herein as Sec. 157.22(e)(6) states in part: ``Additional requests for 
studies may be made to the Commission after the filing of the 
application only for good cause shown.''
    One commenter noted that an applicant may not conduct all the 
studies requested by participants in the pre-filing process, and sought 
assurances that the regulations do not preclude a participant in the 
process from renewing its request for a study that had been made by the 
participant and had been rejected by the applicant in the pre-filing 
stage. Specifically, the commenter requested that the language in 
proposed Sec. 157.22(f)(7) be changed to substitute ``study requests'' 
for ``additional requests for studies.'' 80
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    \80\ Id.
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    We do not believe it is necessary to change the language in 
Sec. 157.22(f)(7). We confirm that participants (including resource 
agencies) in a pre-filing process (either gas or hydropower), after an 
application has been filed, are free to renew requests for studies that 
were made but rejected by the applicant in the pre-filing process. In 
such cases, however, we encourage the participants to make every effort 
to resolve their differences with the applicant as part of the pre-
filing process and to consider the filing of a request for dispute 
resolution with the Commission in the pre-filing stage if such efforts 
are not successful.
(2) Communications Protocol
    Section 157.22(c)(2) as proposed in the NOPR, adopted herein as 
Sec. 157.22(b)(2), states that an applicant seeking to undertake a pre-
filing collaboration must submit with its request ``a communications 
protocol, supported by interested entities, governing how the applicant 
and other participants in the pre-filing collaborative process, 
including the Commission staff, may communicate with each other 
regarding the merits of the applicant's proposal and recommendations of 
interested entities.'' The NOPR stated that this protocol would 
designate how communications in the pre-filing process would be 
documented and made available to the participants and the public.
    One commenter asked the Commission to provide more guidance 
regarding the required communications protocol, including what such a 
protocol must include or may exclude, how it may be implemented, and 
the consequences for violating it.81 Another commenter was 
concerned that the applicant may exert undue influence over a group's 
development of the communications protocol and therefore urged the 
Commission to impose its own protocol on all collaborative 
groups.82
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    \81\ Industrials at 10.
    \82\ Smith at 3.
---------------------------------------------------------------------------

    The communications protocol governs how the applicant, Commission 
staff, and participants in the pre-filing collaborative process may 
communicate with each other during the process. The protocol should 
specify how such communications will be documented and made available 
to the participants and the public.83 Because we want to 
leave the applicant and participants room to tailor the protocol to 
suit the particular circumstances of each collaborative process, we 
will not add requirements to the final rule specifying the content or 
manner of implementation of a protocol. When an applicant files its 
request to use the pre-filing collaborative process, the Commission 
will have the opportunity to review the proposed communications 
protocol and prospective participants' comments regarding it before 
deciding whether to authorize the requested pre-filing collaboration. 
We can reject the protocol or require revision of its terms if they are 
inadequate, inappropriate, or prejudicial in any way.
---------------------------------------------------------------------------

    \83\ The Commission staff can provide examples of communications 
protocols that have worked on hydropower projects and can assist the 
applicant and participants in defining the necessary elements.
---------------------------------------------------------------------------

(3) Record in Certificate Proceedings
    Section 157.22(e)(5) as adopted herein (Sec. 157.22(f)(6) in the 
NOPR) states: ``An applicant authorized to use the pre-filing 
collaborative process may substitute a preliminary draft environmental 
review document and additional material specified by the Commission 
instead of an environmental report with its application as required by 
Sec. 380.3 of this chapter and need not supply additional

[[Page 51218]]

documentation of the pre-filing collaborative process with its 
application. The applicant will file with the Commission the results of 
any studies conducted or other documentation as directed by the 
Commission, either on its own motion or in response to a motion by a 
party to the proceeding.''
    One commenter asked the Commission to clarify whether ``additional 
material'' is to include documentation sufficient to satisfy the 
identification and evaluation requirements of section 106 of National 
Historic Preservation Act.84 Other commenters asked whether 
any portion of pre-filing discussions would become part of the record 
after the application is filed with the Commission 85 and, 
if the post-filing record rests on the pre-filing discussions, whether 
dissenting points of view would appear in the record.86
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    \84\ Advisory Council, attachment at 2-3.
    \85\ Industrials at 10.
    \86\ Sempra at 3.
---------------------------------------------------------------------------

    We expect that the information submitted with the application after 
a pre-filing process would be equivalent to that normally submitted 
pursuant to Sec. 380.3, for purposes of evaluating the consistency of 
the application with the National Historic Preservation Act and other 
relevant statutes.
    We expect that only pertinent parts of the information gathered in 
the pre-filing process will become part of the record of the proceeding 
once an application has been filed.87 At the conclusion of 
the pre-filing process, the applicant and the collaborative group 
should decide what information they wish to become part of the 
administrative record in the proceeding on the application, and that 
information should be submitted to the Commission with the application.
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    \87\ Examples of information gathered in the pre-filing process 
that would not normally become part of the administrative record of 
the proceeding on the application would include drafts of studies or 
reports, routine correspondence, and privileged settlement 
discussions. Information that would normally be submitted to the 
Commission for inclusion in the record would include the results of 
relevant scientific studies or other investigations of resource 
concerns conducted during the pre-filing process.
---------------------------------------------------------------------------

    Any party to the proceeding, regardless of whether it participated 
in the pre-filing process or whether it supports the application, may 
seek to enter additional information into the record to support the 
party's position, and if necessary or appropriate, the Commission may 
direct such information to be submitted.
(4) Rights of Parties
    Currently, once an application is filed, interested persons can 
intervene, comment, and/or protest. Several commenters emphasized that 
it would be inappropriate if this existing process were curtailed in 
any way with respect to applications filed following a 
collaboration.88 One commenter sought assurances that 
participants in a pre-filing process can withdraw from it without 
prejudicing their right to later intervene after an application has 
been filed and participate in the proceeding before the 
Commission.89 One commenter insisted the Commission must 
accord the same treatment to all applications, whether filed after a 
collaboration or without any pre-filing consultation.90
---------------------------------------------------------------------------

    \88\ AGA at 7-8; Industrials at 9; Sempra at 3.
    \89\ EDF at 2.
    \90\ INGAA at 3-4.
---------------------------------------------------------------------------

    All entities, including those that do not participate in or 
withdraw from a pre-filing process, retain their existing rights to 
intervene in the proceeding concerning the proposed project once an 
application is actually filed and to comment on, support or protest the 
application. The time the Commission needs to reach a decision is in 
part a function of the complexity of the issues raised, the degree to 
which issues are contested, and the thoroughness with which the 
application explores the issues. In particular, when an application is 
filed in which the environmental impacts of a proposed project have 
been adequately addressed and the applicant has agreed to take actions 
to provide appropriate mitigation for such impacts and enhancement, the 
time required for Commission review may be significantly shorter than 
for an application that does not discuss such issues.
(5) Relation to Ex Parte Regulations
    One commenter 91 questioned the Commission's legal 
authority to provide for pre-filing collaboration for gas applicants, 
contending this could be construed to be a form of alternative dispute 
resolution (ADR) that could run afoul of ex parte 
prohibitions.92 Commenters sought clarification on how ex 
parte rules will affect the collaborative process.93 One 
commenter suggested that, if not the letter, then the spirit of the ex 
parte prohibitions would be compromised were the same Commission staff 
to participate in pre-filing collaboration and to later serve in an 
advisory role in the decision-making proceeding on any resulting 
application that was filed.
---------------------------------------------------------------------------

    \91\ Indicated Shippers at 4 and 14.
    \92\ See 5 USC 551-557 and 18 CFR 385.604 and 385.2201.
    \93\ Advisory Council, attachment at 3; Martin at 2.
---------------------------------------------------------------------------

    The Commission's ex parte rules 94 are intended to avoid 
any prejudice, real or apparent, that might result to a party in a 
contested, on-the-record proceeding before the Commission, were a party 
or ``interceder'' to communicate information regarding the merits to 
decision-making (advisory) staff without the knowledge of other 
parties. Since the pre-filing collaborative process established by the 
final rule is not a proceeding before the Commission (which commences 
only after the filing of an application), the Commission's regulations 
precluding ex parte communications do not apply to communications with 
staff during the course of such a pre-filing process. The 
communications protocol, however, typically addresses concerns about 
private communications with Commission staff during the pre-filing 
process. Collaborative participants have the flexibility in negotiating 
the protocol to set the level of scrutiny that they feel is appropriate 
to apply to exchanges of information among participants and with the 
Commission staff. Consequently, we do not believe that the involvement 
of the project sponsor, interested persons, or Commission staff in pre-
filing, pre-decisional activities conflicts with the Commission's ex 
parte rules.
---------------------------------------------------------------------------

    \94\ See 5 U.S.C. 557; 18 CFR 385.2201; see also Regulations 
Governing Off-the-Record Communications, Notice of Proposed 
Rulemaking, 63 FR 51312 (Sept. 25, 1998), FERC Stats. & Regs. 
(Regulations Preambles 1988-1998) para. 32,534 (Sept. 16, 1998).
---------------------------------------------------------------------------

    We are not persuaded that a staff member's participation in a pre-
filing discussion should disqualify that individual from serving in an 
advisory role in any proceeding on an application that is subsequently 
filed. We note that staff representations in the pre-filing forum can 
not in any way bind the Commission, because the Commission alone is 
responsible for making all final decisions on the application.

IV. Environmental Analysis

    Commission regulations describe the circumstances where preparation 
of an EA or an EIS will be required.95 The Commission has 
categorically excluded certain actions from this requirement as not 
having a significant effect on the human environment.96 No 
environmental consideration is necessary for the promulgation of a rule

[[Page 51219]]

that is clarifying, corrective, or procedural, or that does not 
substantially change the effect of legislation or regulations being 
amended.97
---------------------------------------------------------------------------

    \95\ Regulations Implementing the National Environmental Policy 
Act, 52 FR 47897 (Dec. 17, 1987), codified at 18 CFR part 380.
    \96\ 18 CFR 380.4(a)(2)(ii).
    \97\ 18 CFR 380.4.
---------------------------------------------------------------------------

    The final rule adopted herein is procedural in nature. It 
implements an optional pre-filing collaborative process that a 
prospective applicant for a natural gas authorization may wish to use. 
Thus, no environmental assessment or environmental impact statement is 
necessary for the requirements adopted in the rule.

V. Regulatory Flexibility Certification

    The Regulatory Flexibility Act of 1980 (RFA) 98 
generally requires a description and analysis of final rules that will 
have significant economic impact on a substantial number of small 
entities. Pursuant to section 605(b) of the RFA, the Commission hereby 
certifies that the final rule adopted herein will not have a 
significant economic impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \98\ 5 U.S.C. 601-612.
---------------------------------------------------------------------------

    The procedural regulations adopted in this final rule are purely 
voluntary in nature, and are designed to reduce burdens on small 
entities (as well as large entities) rather than to increase them. The 
pre-filing collaborative process adopted herein is optional, will not 
alter or replace the procedures currently prescribed in our 
regulations, and will not be available unless it is the consensus of 
the persons interested in the proposed project to use that process. 
Under this approach, each small entity will be able to evaluate for 
itself whether the pre-filing process would be beneficial or 
burdensome, and could decline to participate in the proposed process if 
it appeared to be more burdensome than beneficial. Under these 
circumstances, the economic impact of the final rule will be either 
neutral or beneficial to the small entities affected by it.

VI. Information Collection Statement

    The regulations adopted in this final rule will impose reporting 
burdens only on those applicants that voluntarily choose to use the 
pre-filing collaborative process, and will only require minor 
additional filing requirements, as most of the reporting burdens 
associated with preparing and filing an application for natural gas 
facilities or services are imposed by existing regulations. The other 
additional burdens of the process do not involve filings with the 
Commission, but consist of various outreach efforts of the potential 
applicant and related interactions with entities interested in its 
proposal. An applicant would presumably only incur such additional 
burdens if it believed that, in the long run, it would reduce the time 
required to obtain Commission authorization or save on litigation and 
other costs incurred to pursue its application using only the standard 
procedures.
    The Commission has made approximate estimates of the additional 
time that may be required of an applicant to comply with the pre-filing 
collaborative process. It is difficult to be precise about such 
estimates, because the time required for one applicant could vary 
considerably from the time required for other applicants, depending 
upon the circumstances involved, including the complexity of the issues 
raised, the total number of participants in the pre-filing process, and 
how cooperatively those participants worked together. If the pre-filing 
collaborative process were successful and resulted, for example, in the 
filing of an agreement or an offer of settlement with the Commission, 
the applicant might be able to save substantially more time by avoiding 
rehearing and litigation than was invested in the use of that process. 
If an applicant requested and was allowed to use the pre-filing 
collaborative process for an average project requiring a significant EA 
or an EIS, the main additional burden areas, with the estimated hours 
to comply with each, are:

------------------------------------------------------------------------
                                                                 Burden
                           Process                             (hours of
                                                                effort)
------------------------------------------------------------------------
(1) contact interested entities;.............................         80
(2) prepare and submit request, including communications              80
 protocol;...................................................
(3) prepare and distribute scoping and hold related meetings;         32
(4) develop agenda and other documents, including minutes,           802
 for all meetings and prepare and distribute them (only
 additional time as compared to presently required meetings;.
(5) prepare and publish public notices;......................         88
(6) prepare and submit required Commission filings;..........         64
(7) maintain a complete record of the pre-filing consultation        208
 proceedings that would be open to the public................
                                                              ----------
    Total....................................................      1,354
------------------------------------------------------------------------

    We estimate that to prepare and distribute the preliminary draft 
environmental review document would not take any more time than to 
prepare an environmental report under the standard process. Therefore, 
the estimated additional burden of the tasks required of an applicant 
if it voluntarily undertakes the alternative process totals 1,354 
hours.
    SoCal Ed expects that an effective collaboration will involve 
frequent meetings with multiple participants and on this basis believes 
the Commission underestimates the hours such meetings will 
require.99 We clarify that the specified number of 
additional hours reflects our judgment of the additional time needed to 
conclude an average pre-filing collaboration. As previously explained, 
the time devoted to a collaboration will vary considerably depending on 
the complexity and contentiousness of the proposed project. A potential 
applicant may expend less than 1,354 hours to complete a collaboration 
for relatively minor modifications to existing facilities, whereas a 
collaboration for a large and controversial project can be expected to 
take longer. Given the inevitable variability in types of applicant 
proposals, we have endeavored to strike a balance and gauge the 
additional time needed to undertake a collaboration for a moderately 
scaled project. For such a project, we affirm our estimate that an 
additional 1,354 hours will be needed.
---------------------------------------------------------------------------

    \99\ SoCal Ed at 5-6.
---------------------------------------------------------------------------

    Office of Management and Budget (OMB) 100 approval is 
required for certain information collection requirements imposed by 
agency rules. Accordingly, pursuant to OMB regulations, the Commission 
is providing notice of its information collections to OMB for review 
under section 3507(d) of the Paperwork Reduction Act of 
1995.101 The Commission identifies the information provided 
under parts 153 and 157 of its regulations as FERC-539 and FERC-537, 
respectively.
---------------------------------------------------------------------------

    \100\ 5 CFR 1320.11.
    \101\ 44 U.S.C. 3507(d).
---------------------------------------------------------------------------

    Title: FERC-537, Gas Pipeline Certificates: Construction, 
Acquisition, and Abandonment, and, FERC-539, Gas Pipeline Certificate: 
Import/Export.
    Action: Proposed Data Collection.
    OMB Control No.: 1902-0060 and 1902-0062.
    An applicant shall not be penalized for failure to respond to this 
collection of information unless the collection of information displays 
a valid OMB control number.
    Respondents: Businesses or other for profit, including small 
businesses.
    Frequency of Responses: On occasion.
    Necessity of Information: The rule will revise the Commission's 
regulations contained in 18 CFR parts 153 and 157.

[[Page 51220]]

Implementation of the rule will offer prospective applicants seeking to 
construct, operate, or abandon natural gas facilities or services the 
option, in appropriate circumstances and prior to filing an 
application, of using a collaborative process.
    Internal Review: The Commission has assured itself, by means of its 
internal review, that there is specific, objective support for the 
burden estimates associated with the information requirements. The 
Commission's Office of Pipeline Regulation (OPR) will use the data 
included in applications to determine whether proposed facilities, 
services, or abandonments are in the public interest as well as for 
general industry oversight. This determination involves, among other 
things, an examination of adequacy of design, costs, reliability, 
redundancy, safety, and environmental acceptability of the proposal. 
These requirements conform to the Commission's plan for efficient 
information collection, communication, and management within the 
natural gas industry.
    Interested persons may obtain information on the reporting 
requirements by contacting the following: Federal Energy Regulatory 
Commission, 888 First Street, NE, Washington, DC 20426 (Attention: 
Michael Miller, Office of the Chief Information Officer, Phone: (202) 
208-1415, fax: (202) 273-0873, E-mail: [email protected]).
    For submitting comments concerning the collection of information 
and the associated burden estimates, please send comments to the 
contact listed above and to the Office of Management and Budget, Office 
of Information and Regulatory Affairs (Attention: Desk Officer for 
Federal Energy Regulatory Commission).

VII. Effective Date

    These regulations become effective October 22, 1999. The Commission 
has concluded, with the concurrence of the Administrator of the 
Information and Regulatory Affairs of OMB, that this rule is not a 
``major rule'' as defined in section 251 of the Small Business 
Regulatory Enforcement Fairness Act of 1996.

List of Subjects

18 CFR Part 153

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

18 CFR Part 157

    Administrative practice and procedure, Natural gas, Reporting and 
recordkeeping requirements

18 CFR Part 375

    Authority delegations (Government agencies), Seals and insignia, 
Sunshine Act.

    By the Commission. Commissioner Bailey concurred with a separate 
statement attached.
David P. Boergers,
Secretary.

Appendix A--List of Commenters

Advisory Council on Historic Preservation (Advisory Council)
Alabama Historical Commission (Alabama)
Alabama Power Company (Alabama Power)
American Gas Association (AGA)
ANR Pipeline Company (ANR)
California Department of Water Resources (California Water)
Columbia River Inter-Tribal Fish Commission (CRITFC)
Duke Energy Companies (Duke)
Edison Electric Institute (EEI)
El Paso Energy Interstate Pipelines (El Paso)
Enron Interstate Pipelines (Enron)
Environmental Defense Fund (EDF)
FPL Energy Inc. (FPL)
Frederick W. Martin (Martin)
Great Lakes Gas Transmission Limited Partnership (Great Lakes)
Hydropower Reform Coalition (HRC)
Idaho Power Company (Idaho Power)
Interstate Natural Gas Association of America (INGAA)
Indicated Shippers
J. Ferguson & J. Tavares (Ferguson & Tavares)
Laurie G. Smith (Smith)
National Hydropower Association (NHA)
New York State Department of Environmental Conservation (NY DEC)
Nicor Gas (Nicor)
Northwest Hydroelectric Association (Northwest)
Oregon Departments of Fish and Wildlife and Environmental Quality 
(Oregon)
PG&E Corporation (PG&E)
Process Gas Consumers Group, The American Iron and Steel Institute, 
and
The Georgia Industrial Group (Industrials)
Sacramento Municipal Utility District (Sacramento)
Sempra Energy Companies (Sempra)
Southern California Edison Company (SoCal Ed)
Southern Tier Landowners Association (Southern Landowners)
Tejas Offshore Pipeline, LLC (Tejas)
Travis K. Bynum
Tri-Dam Project of the South San Joaquin and Oakdale Irrigation 
Districts (Tri-Dam)
Trout Unlimited
U.S. Department of Agriculture, Forest Service (Forest Service)
U.S. Department of Commerce, National Marine Fisheries Service 
(Commerce)
U.S. Department of the Interior (Interior)
U.S. Environmental Protection Agency (EPA)
Williams Gas Pipeline Company (Williams)
Williston Basin Interstate Pipeline Company (Williston)
Wisconsin Department of Natural Resources (Wisconsin DNR)
(Issued September 15, 1999)

BAILEY, Commissioner, concurring.

    I support the voluntary use of the collaborative process adopted 
in this document. I write separately only to question the need for 
engrafting a voluntary process into the Code of Federal Regulations 
as a rule. Putting aside a semantic discussion about whether a rule 
is a rule or just an option, my concern derives from the 
simultaneous issuance today of a certificate policy statement that 
has as a goal the filing of complete applications that can be 
processed expeditiously by minimizing adverse effects and working 
out contentious issues in advance. I am concerned that these two 
documents not be read in tandem so as to suggest the collaborative 
process is anything other than voluntary. I want to make it 
perfectly clear that from my perspective, this is the case.
Vicky A. Bailey,
Commissioner.
    In consideration of the foregoing, the Commission amends 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. Section 153.12 is added, to read as follows:


Sec. 153.12  Collaborative 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 and pre-filing collaborative procedures for 
certificate applications in Secs. 157.1 and 157.22 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

    3. 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.

    4. Section 157.1 is added, to read as follows:


Sec. 157.1  Definitions

    For the purposes of this part--

[[Page 51221]]

    Indian tribe means, in reference to a proposal or application for a 
certificate or abandonment, an Indian tribe which is recognized by 
treaty with the United States, by federal statute, or by the U.S. 
Department of the Interior in its periodic listing of tribal 
governments in the Federal Register in accordance with 25 CFR 83.6(b), 
and whose legal rights as a tribe may be affected by the proposed 
construction, operation or abandonment of facilities or services (as 
where the construction or operation of the proposed facilities could 
interfere with the tribe's hunting or fishing rights or where the 
proposed facilities would be located within the tribe's reservation).
    Resource agency means a Federal, state, or interstate agency 
exercising administration over the areas of recreation, fish and 
wildlife, water resource management, or cultural or other relevant 
resources of the state or states in which the facilities or services 
for which a certificate or abandonment is proposed are or will be 
located.
    5. Section 157.22 is added, to read as follows:


Sec. 157.22  Collaborative procedures for applications for certificates 
of public convenience and necessity and for orders permitting and 
approving abandonment.

    (a) A potential applicant may submit to the Commission a request to 
approve the use of collaborative procedures for pre-filing consultation 
and the filing and processing of an application for certificate or 
abandonment authorization that is subject to part 157 of this chapter.
    (b) A potential applicant requesting to use the pre-filing 
collaborative procedures must provide a list of potentially interested 
entities invited to participate in a pre-filing collaborative process 
and:
    (1) Demonstrate that a reasonable effort has been made to contact 
all entities affected by the applicant's proposal, such as resource 
agencies, local governments, Indian tribes, citizens' groups, 
landowners, customers, and others, and that a consensus exists that the 
use of the collaborative process is appropriate under the 
circumstances;
    (2) Submit a communications protocol, supported by interested 
entities, governing how the applicant and other participants in the 
pre-filing collaborative process, including the Commission staff, may 
communicate with each other regarding the merits of the applicant's 
proposal and recommendations of interested entities; and
    (3) Submit a request to use the pre-filing collaborative process 
and, within five days, send a copy of the request, along with the 
docket number of the request, instructions on how to submit comments to 
the Commission, and a copy of Secs. 157.1 and 157.22, to all affected 
resource agencies and Indian tribes, and all entities contacted by the 
applicant that have expressed an interest in the pre-filing 
collaborative process.
    (c) As appropriate under the circumstances of the case, the request 
to use the pre-filing collaborative procedures must include provisions 
for:
    (1) Distribution of a description of the proposed project 
(including its intended purpose, location and scope, and the estimated 
dates of its construction), and scheduling of an initial information 
meeting (or meetings, if more than one such meeting is appropriate) 
open to the public;
    (2) The cooperative scoping of environmental issues (including 
necessary scientific studies), the analysis of completed studies and 
any further scoping; and
    (3) The preparation of a preliminary draft environmental assessment 
or preliminary draft environmental impact statement and related 
application.
    (d) The Commission will give public notice in the Federal Register 
and the prospective applicant will inform potentially interested 
entities of a request to use the pre-filing collaborative procedures 
and will invite comments on the request within 30 days. The Commission 
will consider the submitted comments in determining whether to grant or 
deny the applicant's request to use the pre-filing collaborative 
procedures. Such a decision will not be subject to interlocutory 
rehearing or appeal.
    (e) If the Commission accepts the use of a pre-filing collaborative 
process, the following provisions will apply:
    (1) To the extent feasible under the circumstances of the process, 
the Commission will give notice in the Federal Register, and the 
applicant will give notice in a local newspaper of general circulation 
in the county or counties in which the facility is proposed to be 
located, of the initial information meeting or meetings and the scoping 
of environmental issues. The applicant shall also send notice of these 
events to a mailing list approved by the Commission. To the extent 
feasible under the circumstances of the process, the mailing list 
should contain the names and addresses of landowners affected by the 
project.
    (2) The applicant must also file with the Commission a copy of the 
initial description of its proposed project, each scoping document, and 
the preliminary draft environmental review document.
    (3) All filings submitted to the Commission under this section 
shall consist of an original and seven copies. The applicant shall send 
a copy of each filing to each participant that requests a copy.
    (4) At a suitable location (or at more than one location if 
appropriate), the applicant will maintain a public file of all relevant 
documents, including scientific studies, correspondence, and minutes or 
summaries of meetings, compiled during the pre-filing collaborative 
process. The Commission will maintain a public file of the applicant's 
initial description of its proposed project, scoping documents, 
periodic reports on the pre-filing collaborative process, and the 
preliminary draft environmental review document.
    (5) An applicant authorized to use the pre-filing collaborative 
process may substitute a preliminary draft environmental review 
document and additional material specified by the Commission instead of 
an environmental report with its application as required by Sec. 380.3 
of this chapter and need not supply additional documentation of the 
pre-filing collaborative process with its application. The applicant 
will file with the Commission the results of any studies conducted or 
other documentation as directed by the Commission, either on its own 
motion or in response to a motion by a party to the proceeding.
    (6) Pursuant to the procedures approved, the participants will set 
reasonable deadlines requiring all resource agencies, Indian tribes, 
citizens' groups, and interested entities to submit to the applicant 
requests for scientific studies or alternative route analyses during 
the pre-filing collaborative process. Additional requests for studies 
may be made to the Commission after the filing of the application only 
for good cause shown.
    (7) During the pre-filing collaborative process the Commission may 
require deadlines for the filing of preliminary resource agency 
recommendations, conditions, and comments, to be submitted in final 
form after the filing of the application.
    (f) If the potential applicant or any resource agency, Indian 
tribe, citizens' group, or other entity participating in the pre-filing 
collaborative process can show that it has cooperated in the process 
but that a consensus supporting the use of the pre-filing collaborative 
process no longer exists and that continued use of that process would 
not

[[Page 51222]]

be productive, the participant may petition the Commission for an order 
directing the use by the potential applicant of appropriate procedures 
to complete its pre-filing process. No such request will be accepted 
for filing unless the participant submitting it certifies that the 
request has been served on all other participants. The request must 
recommend specific procedures that are appropriate under the 
circumstances.
    (g) The Commission staff may participate in the pre-filing 
collaborative process (and in discussions contemplating initiating a 
collaboration) and assist in the integration of this process and the 
environmental review process in any case. Commission staff positions 
are not binding on the Commission.
    (h) A potential applicant for gas facilities is not precluded by 
these regulations from filing an application with the Commission at any 
time, even if the pre-filing collaborative process for the proposed 
facilities has not been completed.

PART 375--THE COMMISSION

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

    Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 
U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352.

    7. In Sec. 375.307, a new paragraph (h) is added, to read as 
follows:


Sec. 375.307  Delegations to the Director of the Office of Pipeline 
Regulation.

* * * * *
    (h) Approve, on a case-specific basis, and make such decisions as 
may be necessary in connection with the use of pre-filing collaborative 
procedures, for the development of an application for certificate or 
abandonment authorization under section 7 of the Natural Gas Act, or 
the development of an application for facilities under section 3 of the 
Natural Gas Act, and assist in the pre-filing collaborative and related 
processes.

[FR Doc. 99-24615 Filed 9-21-99; 8:45 am]
BILLING CODE 6717-01-P