[Federal Register Volume 71, Number 103 (Tuesday, May 30, 2006)]
[Proposed Rules]
[Pages 30632-30639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-8205]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 153, 157, 375, and 385

[Docket No. RM06-1-000]


Regulations Implementing the Energy Policy Act of 2005: 
Coordinating the Processing of Federal Authorizations for Applications 
Under Sections 3 and 7 of the Natural Gas Act and Maintaining a 
Complete Consolidated Record

Issued May 18, 2006.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: Section 313 of the Energy Policy Act of 2005 (EPAct 2005) \1\ 
amends section 15 of the Natural Gas Act (NGA) \2\ to provide the 
Federal Energy Regulatory Commission (Commission) with additional 
authority to coordinate the processing of authorizations required under 
Federal law for proposed natural gas projects subject to NGA sections 3 
and 7 and maintain a complete consolidated record of decisions with 
respect to such Federal authorizations. The Commission proposes to 
promulgate regulations governing its exercise of this authority, and 
seeks public comments on the proposed regulations.
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    \1\ Public Law No. 109-58, 119 Stat. 594 (2005).
    \2\ 15 U.S.C. 717n (2000).

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DATES: Comments must be filed on or before July 31, 2006.

ADDRESSES: You may submit comments, identified by Docket No. RM06-1-
000, by one of the following methods:
     Agency Web site: http://www.ferc.gov. Follow the 
instructions for submitting comments via the eFiling link found in the 
Comment Procedures Section of the preamble. The Commission encourages 
electronic filing.
     Mail: Commenters unable to file comments electronically 
must mail or hand deliver an original and 14 copies of their comments 
to: Federal Energy Regulatory Commission, Office of the Secretary, 888 
First Street, NE., Washington, DC 20426. Please refer to the Comments 
Procedures Section of the preamble for additional information on how to 
file paper comments.

FOR FURTHER INFORMATION CONTACT:
Gordon Wagner, Office of the General Counsel, Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426. 
[email protected]. (202) 502-8947.
John Leiss, Office of Energy Projects, Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426. 
[email protected]. (202) 502-8058.
William O. Blome, Office of the General Counsel, Federal Energy 
Regulatory Commission, 888 First Street, NE., Washington, DC 20426. 
[email protected]. (202) 502-8462.

SUPPLEMENTARY INFORMATION:

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

    1. Section 313 of the Energy Policy Act of 2005 (EPAct 2005) \1\ 
amends section 15 of the Natural Gas Act (NGA) \2\ to provide the 
Federal Energy Regulatory Commission (Commission) with additional 
authority to (1) coordinate the processing of authorizations required 
under Federal law for proposed natural gas projects subject to NGA 
sections 3 and 7 and (2) maintain a complete consolidated record of 
decisions with respect to such federal authorizations. The Commission 
proposes to promulgate regulations governing its exercise of this 
authority and seeks public comments on the proposed regulations.

I. Background and Proposal

    2. The Commission authorizes the construction and operation of 
proposed natural gas projects under NGA sections 3 and 7.\3\ However, 
the Commission

[[Page 30633]]

does not have jurisdiction over every aspect of each natural gas 
project. Hence, for a natural gas project to go forward, in addition to 
Commission approval, several different agencies must typically reach 
favorable findings regarding other aspects of the project.
    3. To better coordinate the activities of the separate agencies 
with varying responsibilities over proposed natural gas projects, EPAct 
2005 modifies the Commission's role. Section 313 of EPAct 2005 directs 
the Commission (1) to establish a schedule for agencies to review 
requests for Federal authorizations required for a project and (2) to 
compile a record of each agency's decision, together with the record of 
the Commission's decision, to serve as a consolidated record for the 
purpose of appeal or review, including judicial review. This notice of 
proposed rulemaking (NOPR) seeks comments on procedures to better 
coordinate the actions of the Commission and other agencies in 
responding to requests for federal authorizations necessary for natural 
gas projects and on procedures by which the Commission proposes to 
maintain a complete consolidated record documenting agencies' responses 
to requests for federal authorizations.\4\
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    \3\ Under NGA section 7, the Commission has jurisdiction over 
the transportation or sale of natural gas in interstate commerce and 
the construction, acquisition, operation, and abandonment of 
facilities to transport natural gas in interstate commerce. Pursuant 
to Department of Energy (DOE) Delegation Order No. 00-004.00 67 FR 
8946 (February 27, 2002), the Secretary of Energy delegated to the 
Commission the authority under NGA section 3 to approve or 
disapprove applications for the construction and operation of 
facilities to import or export natural gas, including liquefied 
natural gas.
    \4\ EPAct 2005 section 313 describes federal authorizations 
necessary for an NGA section 3 or 7 project as ``all decisions made 
or actions taken by the Commission or by a Federal administrative 
agency or officer (or State administrative agency or officer acting 
under delegated Federal authority) with respect to'' granting, 
denying, or conditioning requests for ``permits, special use 
authorizations, certifications, opinions, or other approvals.'' The 
proposed regulations reflect this description. However, the body of 
this NOPR generally condenses this description to ``authorizations 
by agencies.''
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A. Coordinating Federal Authorizations

    4. As modified by section 313(a) of EPAct 2005, NGA section 
15(b)(1) designates the Commission as ``the lead agency for the 
purposes of coordinating all applicable Federal authorizations and for 
the purposes of complying with the National Environmental Policy Act of 
1969'' (NEPA).\5\ The new NGA section 15(c)(1) directs the Commission 
to establish a schedule for issuance of all federal authorizations 
required for NGA section 3 and 7 natural gas project proposals. In 
setting a schedule, the Commission is directed both to ``ensure 
expeditious completion'' of NGA section 3 and 7 proceedings \6\ and to 
``comply with applicable schedules established by Federal law.'' \7\
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    \5\ 42 U.S.C. 4321 et seq. (2000). Commission authorization 
under NGA section 3 or 7 often triggers NEPA, which aspires to 
``utilize a systematic, interdisciplinary approach which will insure 
the integrated use of the natural and social sciences and the 
environmental design arts in planning and in decisionmaking which 
may have an impact on man's environment.'' 42 U.S.C. 4332(2)(A) 
(2000). EPAct 2005 clarifies that the Commission will lead the 
collective, multi-agency NEPA compliance effort for natural gas 
projects subject to NGA section 3 or 7.
    \6\ NGA section 15(c)(1)(A).
    \7\ NGA section 15(c)(1)(B).
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    5. On November 17, 2005, the Commission issued an order initially 
implementing the authority conferred by EPAct 2005.\8\ In that order, 
the Commission delegated to the Director of the Office of Energy 
Projects (OEP) the authority to set schedules for agencies to act on 
requests for federal authorizations necessary for natural gas projects 
to ensure such requests are processed expeditiously. The Commission 
stated its intent to initiate a rulemaking to modify its regulations to 
formally incorporate the authority provided by EPAct 2005 section 313. 
This NOPR is the start of that process.
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    \8\ Coordinated Processing of NGA Section 3 and 7 Proceedings, 
113 FERC ] 61,170 (2005).
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    6. This proposed rulemaking is aimed at expediting the assessment 
of NGA section 3 and 7 applications by better coordinating the review 
undertaken by the various agencies responsible for issuing necessary 
Federal authorizations.\9\ To the extent that the Commission and the 
other agencies conduct their information collection and analysis 
concurrently--i.e., in tandem rather than sequentially--applications 
can be processed more efficiently. To this end, the Commission aims to 
have all agencies responsible for issuing federal authorizations 
necessary for natural gas projects initiate consideration of a 
requested authorization as early as practicable and reach timely final 
decisions.
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    \9\ In general, any proposal that will require Commission 
authorization under NGA section 3 or 7 will also require compliance 
with other Federal requirements. Typically, these additional federal 
authorizations are considered in the context of the Commission's 
NEPA review. Federal authorizations for a natural gas project may 
require compliance with the Clean Water Act, 33 U.S.C. 1251 et seq. 
(2000), and the National Pollution Discharge Elimination System 
Program, 40 CFR part 122 et seq. (2005); the Clean Air Act, 42 
U.S.C. 1801 et seq. (2000), and the air quality regulations and 
state implementation plans adopted pursuant to 40 CFR parts 50-99 
(2005); the National Historic Preservation Act of 1966, 16 U.S.C. 
470 et seq. (2000); the Archeological and Historic Preservation Act 
of 1974, 16 U.S.C 469-469c (2000); the Coastal Zone Management Act 
of 1972, 16 U.S.C. 1451 et seq. (2000); the Endangered Species Act 
of 1973, 16 U.S.C. 1531 et seq. (2000); Executive Order No. 11,988, 
42 FR 26,951 (May 24, 1977), requiring Federal agencies to evaluate 
the potential effects of Federal actions on a floodplain; Executive 
Order No. 11,990, 42 FR 26,961 (May 24, 1977), requiring an 
evaluation of the potential effects of construction on wetlands; the 
Wild and Scenic Rivers Act, 16 U.S.C. 1274 et seq. (2000); the 
National Wilderness Act, 16 U.S.C. 1133 et seq. (2000); the National 
Parks and Recreation Act of 1978, 16 U.S.C. 1 and 230 et seq. 
(2000); the Magnuson-Stevens Fishery Conservation and Management 
Act, 16 U.S.C. 1801 et seq. (2000); the Marine Mammal Protection Act 
of 1972, 16 U.S.C. 1361-1407 (2000); the Migratory Bird Treaty Act 
of 1918, 16 U.S.C. 703-712 (2000); the Rivers and Harbors Act of 
1899, 33 U.S.C. 403 (2000); and Executive Order Nos. 10485, 18 FR 
5397 (September 3, 1953), and 12038, 43 FR 4957 (February 7, 1978), 
which require a Presidential Permit for facilities at the border of 
the United States used to import or export natural gas.
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    7. The Commission aims to facilitate agencies' concurrent 
assessments of proposed natural gas projects by specifying that an NGA 
section 3 or 7 application submitted to the Commission will not be 
deemed ready for processing unless the project sponsor has submitted a 
request to each agency responsible for issuing a federal authorization 
required for the proposal. A project sponsor might fulfill this 
obligation by submitting requests for federal authorizations on the 
same day that an NGA section 3 or 7 application is submitted to the 
Commission. But this need not be the case. In practice, if a project 
sponsor anticipates that another agency's consideration of a request 
for a necessary federal authorization could extend beyond the time it 
will take the Commission to act, then the applicant may find it 
advantageous to submit a request to that agency in advance of filing an 
application with the Commission; otherwise, authorization to proceed on 
a project could be delayed pending a decision by the other agency. If, 
after filing its application with the Commission, an applicant makes 
material modifications to any request for a Federal authorization from 
another agency, the applicant should file an update with the 
Commission, describing its revised request.
    8. To assist the Commission in its role as lead agency, the 
Commission proposes that each agency notify the Commission when it 
receives a request for a Federal authorization, describe its 
anticipated processing procedure, and provide the Commission with a 
copy of any data requests sent to an applicant. When the Commission 
receives an NGA section 3 or 7 application, it will consider the 
information that the agencies submit in establishing a schedule for 
agency decisions on requests for authorizations necessary for a 
proposed natural gas project. If the Commission elects not to issue a 
notice specifying a schedule for a particular

[[Page 30634]]

project proposal, then a default deadline of 90 days after the issuance 
of the Commission's final environmental document on the proposed 
project, or if no environmental document is issued, no later than 90 
days after issuance of a final order, will apply to agencies without 
applicable schedules established by Federal law.
    9. If an agency finds it necessary to request additional 
information from an applicant, the Commission proposes the agency file 
a copy of its data request with the Commission. This will enhance the 
Commission's ability to assess the progress of agency proceedings and 
inform the Commission of issues raised in those proceedings.

B. Consolidated Record

    10. Section 15(d) of the NGA, added by EPAct 2005, states:

    The Commission shall, with the cooperation of Federal and State 
administrative agencies and officials, maintain a complete 
consolidated record of all decisions made or actions taken by the 
Commission or by a Federal administrative agency or officer (or 
State administrative agency or officer acting under delegated 
Federal authority) with respect to any Federal authorization.

    As provided by EPAct 2005, this consolidated record will serve as 
the record for (1) appeals or reviews under the Coastal Zone Management 
Act (CZMA)\10\ and (2) judicial review under NGA section 19(d)\11\ of 
decisions of Federal and state administrative agencies and 
officials.\12\
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    \10\ 16 U.S.C. 1451 et seq. (2000). In an appeal proceeding, the 
record may be supplemented as provided by CZMA section 319.
    \11\ 15 U.S.C. 717r (2000).
    \12\ If the consolidated record does not contain sufficient 
information, the United States Court of Appeals may remand the 
proceeding to the Commission for further development of the record. 
Section 19(d)(1)(2) of the NGA.
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    11. On September 26, 2005, the Commission issued a policy statement 
to provide guidance in advance of the result of this rulemaking 
proceeding on the development of the consolidated record and the use of 
the record for appeals and reviews.\13\ In this NOPR, the Commission 
proposes to fulfill its mandate to maintain a complete consolidated 
record by requiring that within three days of the effective date of an 
agency's final decision on a request for a Federal authorization 
necessary for a proposed natural gas project, the agency must file with 
the Commission, by electronic means, a copy, or summary, of its 
decision and an index to documents and materials included in the 
agency's proceeding.\14\ If an agency does not reach a decision by the 
deadline established by the Commission or Federal law, then within 
three days of the expiration of the time allotted, the agency must so 
inform the Commission and file an index to the documents and materials 
in the agency's inconclusive proceeding.
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    \13\ Consolidated Record in Natural Gas Proceedings, 112 FERC ] 
61,334 (2005).
    \14\ All such submissions are to be in accord with the 
Commission's regulations, part 385, subpart T, Formal Requirements 
for Filings in Proceedings Before the Commission. The first page of 
the copy of, or summary of, the agency's decision, and the first 
page of the index, must include the designation ``Consolidated 
Record'' and the Commission's docket number for the proceeding in 
the upper right corner. In addition, Sec.  388.112 of the 
Commission's regulations, 18 CFR 388.112 (2005), sets forth 
procedures to be followed for submissions to the Commission that 
contain critical energy infrastructure information (CEII) or other 
information for which protective treatment is requested. CEII, as 
defined by Sec.  388.113(c) of the regulations, includes information 
about proposed or existing energy facilities that could be used in 
planning an attack on critical infrastructure. In compiling the 
consolidated record for a proceeding, the Commission will maintain a 
public record of public decisions and actions. To the extent the 
record of a decision or action by an agency or official contains 
CEII or other information for which protective treatment is 
appropriate, this information should be submitted to the Commission 
in accordance with the procedures described in Sec.  388.112 to 
ensure the information is not placed in the Commission's public 
records.
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    12. The Commission will maintain the complete consolidated record 
and it will be the record for appeal or review. In the event of an 
appeal or review of agency decisions in response to requests for 
Federal authorizations necessary for a proposed natural gas project, 
the agency will file with the reviewing authority original, or 
certified copies of, documents and materials stipulated by the parties 
and specified by the reviewing agency. This comports with current 
practice with respect to the appeal of a Commission decision, whereby 
the Commission files with the United States Court of Appeals its 
record, or a portion thereof, as agreed upon by the parties and 
specified by the court.\15\
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    \15\ Just as the court need not review the entire record to rule 
on a specific issue on appeal of a Commission decision, the 
Commission does not expect the entire contents of the complete 
consolidated record will be needed for review on appeal of a single 
agency's decision.
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II. Proposed Regulatory Revisions

A. Coordinating Federal Authorizations

    13. The Commission proposes to modify Sec. Sec.  153.8 and 157.14 
of its regulations to specify that an applicant submitting an 
application for a natural gas project under NGA section 3 or 7 must 
first submit requests for Federal authorizations necessary for its 
proposed project, and include an exhibit as part of its application 
that itemizes each required Federal authorization, the agency 
responsible for issuing each authorization, the date a request for 
authorization was submitted to each agency, and the date by which the 
applicant has requested or expects each authorization be issued.\16\ 
This threshold requirement should enhance the Commission's and 
agencies' capability to coordinate their consideration of a proposed 
natural gas project, and thereby avoid what might otherwise be 
piecemeal and disjointed assessments of jurisdictionally discrete 
aspects of a single project.
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    \16\ Specifically, for NGA section 3 projects, the Commission 
proposes to expand the exhibits required under Sec.  153.8 of the 
regulations by adding a new Sec.  153.8(a)(9), Exhibit H, containing 
the information described above, and for NGA section 7 projects, the 
Commission proposes to amend Sec.  157.14 of the regulations by 
adding an identical requirement in a new Sec.  157.14(a)(12), 
Exhibit J. An applicant that does not include this proposed new 
information statement risks rejection of its application as 
incomplete. In addition, if after filing its application with the 
Commission, an applicant makes material modifications to any request 
for a federal authorization from another agency, the applicant 
should file an update with the Commission, describing its revised 
request.
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    14. In addition to modifying Sec. Sec.  153.8 and 157.14 of its 
regulations, the Commission proposes to amend Sec.  375.308, 
Delegations to the Director of the Office of Energy Projects, by adding 
a new Sec.  375.308(bb). This additional delegation of authority will 
permit the Director of OEP to establish schedules, consistent with 
Federal law, for agencies to complete their necessary analysis and 
decisionmaking processes and issue decisions on requests for 
authorizations for natural gas projects.
    15. Finally, the Commission proposes to add a new Sec.  153.4 to 
its regulations, to specify that certain part 157 procedural 
regulations governing filing an application under NGA section 7 are 
equally applicable to applications under NGA section 3. Heretofore, 
applicants have either submitted NGA section 3 application for 
liquefied natural gas (LNG) projects in conjunction with NGA section 7 
applications for interrelated facilities, or else adapted the part 157 
procedural filing requirements to submissions under NGA section 3. 
Hence, the Commission views this new section as clarifying and 
codifying current practice.

B. Determining a Schedule for Federal Authorizations

    16. Initially, upon receiving an application, the Commission issues 
a notice ``within 10 days of filing'' pursuant to Sec.  157.9 of its 
regulations.\17\

[[Page 30635]]

The Commission proposes to clarify that the time to issue a notice runs 
for 10 business days.
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    \17\ Alternatively, the Commission may reject the application in 
accordance with Sec.  157.8 of its regulations.
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    17. In issuing a notice of an application, the Commission, or the 
Director of OEP acting pursuant to delegated authority, may issue a 
schedule for decisions on outstanding requests for federal 
authorizations. In the event the Commission or the Director of OEP does 
not set a schedule for a particular project, the default deadline for 
decisions by those agencies without applicable schedules established by 
Federal law will be no later than 90 days after the issuance of the 
Commission's final environmental document on the proposed project, or 
if no environmental document is issued, no later than 90 days after 
issuance of a final order. In some cases--for example, when there is a 
demonstrated need to have a new natural gas project in service by a 
certain date--the Commission may set deadlines that are shorter than 
the maximum times permitted under Federal law. In such cases, the 
Commission recognizes that compliance with its specified deadlines 
would be voluntary for agencies with deadlines determined by Federal 
law.
    18. In setting a schedule, the Commission will take the 
circumstances of other agencies into consideration. To this end, when 
an agency receives a request for a Federal authorization, proposed new 
Sec.  385.2013 specifies that within 30 days of receiving the request, 
the agency must inform the Commission, by electronic means, of the 
following: (1) Whether the agency deems the application to be ready for 
processing and, if not, what additional information or materials will 
be necessary to assess the merits of the request; (2) the time the 
agency will allot the applicant to provide the necessary additional 
information or materials; (3) what, if any, studies will be necessary 
in order to evaluate the request; (4) the anticipated effective date of 
the agency's decision; and (5) if applicable, the schedule set forth by 
Federal law for the agency to act. In order to assess the progress of 
proceedings on requests for Federal authorizations, proposed new Sec.  
385.2013 requires that if an agency asks for additional information 
from an applicant seeking a Federal authorization, then, within three 
days of submitting its request to the applicant, the agency file a copy 
of its data request with the Commission.\18\
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    \18\ Submissions are to follow the regulatory procedures 
described in note 14.
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    19. In calculating the time an agency has to act on a request, the 
Commission will measure time from the day a project sponsor submits a 
request to an agency. The Commission has previously had cause to 
consider when a federally specified time period starts to run with 
respect to a request for a water quality certification under section 
401 of the Clean Water Act (CWA),\19\ and has concluded that the time 
allotted by law starts to run on the day the agency receives the 
project sponsor's request.\20\
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    \19\ 33 U.S.C. 1341 (2000).
    \20\ Section 4.34(b)(5)(iii) of the Commission's regulations 
states: ``A certifying agency is deemed to have waived the 
certification requirements of section 401(a)(1) of the Clean Water 
Act if the certifying agency has not denied or granted certification 
by one year after the date the certifying agency received a written 
request for certification.'' In response to concerns that this 
manner of marking time might trigger the running of the one year 
time period by filing a deficient request, the Commission observed 
that if an agency finds a request to be incomplete--a determination 
the agency can be expected to make within, at most, several weeks of 
receipt of a request--the agency then has the discretion to deny the 
request on the grounds that it is incomplete. See Regulations 
Governing Submittal of Proposed Hydropower License Conditions and 
Other Matters, Order No. 533, FERC Statutes and Regulations ]30,921 
at 30,135-38, 56 FR 23, 108 (May 20, 1991), 55 FERC ]61,193 (1991). 
We note, however, that federal regulations allow the United States 
Corps of Engineers, Department of the Army (Corps of Engineers) to 
wait to initiate its review of a request until after a project 
sponsor obtains certain separate Federal authorizations, e.g., a CWA 
section 401 water certification (33 CFR 325.2(b)) or a coastal zone 
management consistency determination (33 CFR 325.2(2)(ii)). If the 
Corps of Engineers finds it necessary to forego its review of a 
request until another agency renders it decision, then the schedule 
established by Federal law for the Corps of Engineers' review does 
not start to run until that other agency acts.
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    20. If an agency determines that an authorization request does not 
contain information adequate to permit it to reach a reasoned decision, 
the agency may deny the request, in which case Commission authorization 
could be denied on the grounds that the project sponsor failed to 
obtain a Federal authorization necessary for the proposed natural gas 
project to go forward. However, rather than risk rejection on the 
grounds an application is deficient, the Commission expects applicants 
to work to with agencies to cure deficiencies so that a request may be 
assessed on its merits. To this end, if at any time during the review 
process an agency believes that an applicant is being uncooperative or 
failing to respond to reasonable requests for additional information, 
the agency should promptly notify the Commission. The Commission 
intends to set deadlines to allow time to ensure that Federal 
authorizations are issued, conditioned, or denied based on sufficient 
information and an agency's sound assessment thereof.
    21. As indicated above, the Commission intends to adopt a default 
schedule to complete action on requests for Federal authorizations 
necessary for a proposed natural gas project. The default deadline will 
be 90 days after issuance of the Commission's final environmental 
document in a given proceeding, or if an environmental document is not 
issued, then 90 days after issuance of the final Commission order. 
While it is desirable that all agencies act within the same time frame, 
the Commission cannot effect any change to a schedule established by 
Federal law.
    22. The Commission anticipates this default schedule will prove 
adequate for most projects. However, the Commission (or the Director of 
OEP acting under delegated authority) may find that circumstances 
warrant establishing an individualized schedule for a particular 
project. For example, when an applicant proposes a project that appears 
modest, routine, or unremarkable, the Commission may consider 
establishing an accelerated schedule. It has been the Commission's 
experience that in the vast majority of natural gas cases, agencies act 
on requests for Federal authorizations expeditiously. Thus, the 
Commission expects that in most cases, agencies will complete action on 
requests for Federal authorizations within the time frame established 
by the Commission, even if a longer time is allotted to agencies by 
Federal law.
    23. EPAct 2005, in addition to providing the scheduling authority 
discussed herein, mandates that project sponsors of certain LNG 
terminal projects commence a prefiling process at least six months 
before submitting an application to the Commission.\21\ The prefiling 
process encourages early involvement by the public and government 
agencies, as contemplated by NEPA and the Council on Environmental 
Quality's regulations. Because the analysis of the potential 
environmental impacts of natural gas projects tends to take longer than 
reaching a determination on non-environmental issues (e.g., rates for 
new services), the Commission will start the environmental review of 
all natural gas projects as soon as doing so may prove productive. 
Accordingly, the Commission encourages all natural gas project sponsors 
to make use of the prefiling process as a means to notify and consult 
with potentially interested persons, identify those aspects of a

[[Page 30636]]

project that merit most attention, winnow the issues in play, and 
refine the final proposal prior to filing an application with the 
Commission.
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    \21\ See EPAct 2005 section 311(d) and Regulations Implementing 
Energy Policy Act of 2005; Pre-Filing Procedures for Review of LNG 
Terminals and Other Natural Gas Facilities, Order No. 665, 113 FERC 
] 61,015 (final rule) and 112 FERC ] 61,232 (2005) (NOPR).
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    24. This NOPR requires a project sponsor to submit requests for all 
necessary Federal authorizations no later than the date that an 
application is filed with the Commission. However, a project sponsor 
may submit a request sooner, and so trigger the start of the time 
provided by Federal law for an agency to act. Gas project sponsors have 
previously made use of the prefiling process to prepare requests for 
Federal authorizations, and have submitted such requests to agencies 
before filing an application with the Commission.\22\ This approach can 
compress the time needed to be able to construct and/or operate 
proposed natural gas facilities, since final Commission approval most 
often rests on other agencies reaching favorable determinations on 
requests for federal authorizations.
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    \22\ Traditionally, the systematic review of the environmental 
aspects of a proposed natural gas project begins after an 
application is filed and after the Commission issues a public notice 
of intent to prepare an environmental assessment (EA) or 
environmental impact statement (EIS). However, the Commission need 
not wait for an application to be filed; instead, it can issue a 
notice of intent during the prefiling process. A project sponsor, in 
turn, need not wait for the Commission to issue a notice, but may 
choose to submit requests for authorizations to agencies at any 
time. In theory, the earlier a review of the environmental aspects 
of a proposed project can start, the earlier a final decision on a 
project can be reached--not by curtailing the time allotted to 
agencies and the Commission to complete their review, but by 
initiating the analysis sooner. Note that prefiling is mandatory 
only for certain LNG terminal projects; prefiling is optional for 
project sponsors of other types of natural gas facilities.
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C. Consolidated Record

    25. Section 313 of EPAct 2005 directs the Commission to ``maintain 
a complete consolidated record of all decisions made or actions taken 
by the Commission or by a Federal administrative agency or officer (or 
State administrative agency or officer acting under delegated Federal 
authority) with respect to any Federal authorization.'' The Commission 
proposes to do so by revising its part 385 procedural rules to require 
that each agency or officer responsible for a Federal authorization 
necessary for a proposed natural gas project file with the Commission a 
copy of the decision reached or action taken in response to a requested 
authorization within three days of the effective date of the final 
decision or action. In addition to filing a copy of the final decision 
or action, or a summary thereof, the Commission proposes that agencies 
and officers also file an index which identifies all documents and 
materials--including pleadings, comments, evidence, exhibits, 
transcripts of testimony, project alternatives (including alternative 
routings), studies, and maps--that are relevant to the result of 
request for a federal authorization. When the end of the time 
established by the Commission or allotted by federal law expires 
without a decision or action, within three days thereafter, the agency 
or officer will file with the Commission an index to the documents and 
materials submitted in the proceeding.
    26. In the proposed new Sec. Sec.  385.2013 and 385.2014, the 
Commission requires that agencies submit information--data requests, 
decisions, actions, indices, etc.--by electronic means, in accordance 
with Sec.  385.2003(c) of the regulations. The Commission expects that 
making use of its current eFiling capability will prove more efficient 
for both those submitting information and for the Commission in 
processing the information submitted. The Commission urges any agency 
or officer with a differing expectation to comment. If the Commission 
finds filing via the Internet will be a hardship, paper filing will be 
permitted as an alternative.
    27. The Commission's own record of its deliberations and decision, 
in aggregate with copies of the agencies' decisions and indices, will 
constitute the ``complete consolidated record'' of each proceeding. 
EPAct 2005 declares that this consolidated record ``shall be the 
record'' for appeals and reviews of decisions and actions by agencies 
and officials in response to requests for Federal authorizations 
necessary for NGA section 3 and 7 natural gas projects. Thus, in 
appeals and reviews of agencies' and officials' decisions and actions, 
the reviewing authority is expected to rely on the consolidated record, 
and stipulations by the parties, to determine which portions of the 
complete record are relevant to the issues at hand. The reviewing 
authority may then request documents and materials referenced in an 
index and the full text of a decision or action. Agencies and officials 
must stand ready to present requested portions of the consolidated 
record to the reviewing authority.\23\ Accordingly, agencies and 
officials are to retain all documents and materials relevant to their 
decisions and actions for at least three years, or until the conclusion 
of an appeal or review.
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    \23\ See Fed. R. App. P. 17(b)(1) (2005) and 28 U.S.C. 2112(b) 
(2000). An agency or official must be prepared to transmit to the 
reviewing authority the original papers, or certified copies, 
comprising the whole record of its proceeding and any supplemental 
record.
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III. Environmental Analysis

    28. The Commission is required to prepare an EA or EIS for any 
action that may have a significant adverse effect on the human 
environment.\24\ No environmental consideration is raised by the 
promulgation of a rule that is procedural in nature or does not 
substantially change the effect of legislation or regulations being 
amended.\25\ The EPAct 2005 provisions granting the Commission 
authority to set a schedule for certain agencies to act on requests for 
Federal authorizations and requiring the Commission to maintain a 
consolidated record are procedural in nature and do not alter the 
requirements applicable to natural gas project sponsors or the 
responsibilities of the agencies involved in authorizing proposed 
projects. Accordingly, in this case, no environmental consideration is 
necessary.
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    \24\ Order No. 486, Regulations Implementing NEPA, 52 FR 47,897 
(December 17, 1987), FERC Stats. & Regs. Preambles 1986-1990 ] 
30,783 (1987).
    \25\ 18 CFR 380.4(a)(2)(ii) (2005).
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IV. Regulatory Flexibility Act Analysis

    29. The Regulatory Flexibility Act of 1980 (RFA) \26\ generally 
requires a description and analysis of proposed regulations that will 
have significant economic impact on a substantial number of small 
entities. The Commission is not required to make such an analysis if 
proposed regulations would not have such an effect.\27\ Under the 
industry standards used for purposes of the RFA, a natural gas pipeline 
company qualifies as ``a small entity'' if it has annual revenues of 
$6.5 million or less. Most companies regulated by the Commission do not 
fall within the RFA's definition of a small entity.\28\
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    \26\ 5 U.S.C. 601-612 (2000).
    \27\ 5 U.S.C. 605(b) (2000).
    \28\ 5 U.S.C. 601(3), citing to section 3 of the Small Business 
Act, 15 U.S.C. 623 (2000). Section 3 of the Small Business Act 
defines a ``small-business concern'' as a business which is 
independently owned and operated and which is not dominant in its 
field of operation.
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    30. State agencies acting under federally delegated authority do 
not fall under the RFA definition of a small entity; \29\ they are not 
described by the subsection pertaining to small businesses,\30\ the 
subsection pertaining to small organizations,\31\ or the subsection 
defining small governmental jurisdictions.\32\ RFA section 601(5) 
defines ``small governmental jurisdiction'' as governments of cities,

[[Page 30637]]

counties, towns, and similar entities with a population of less than 
fifty thousand. The Commission concludes that no state agencies acting 
under federally delegated authority meet this definition.
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    \29\ 5 U.S.C. 601(6) (2000).
    \30\ 5 U.S.C. 601(3) (2000).
    \31\ 5 U.S.C. 601(4) (2000).
    \32\ 5 U.S.C. 601(5) (2000).
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    31. The procedural modifications proposed herein should have no 
significant economic impact on those entities--be they large or small--
subject to the Commission's regulatory jurisdiction under NGA section 3 
or 7, and no significant economic impact on state agencies. 
Accordingly, the Commission certifies that this notice's proposed 
regulations, if promulgated, will not have a significant economic 
impact on a substantial number of small entities.

V. Information Collection Statement

    32. The Office of Management and Budget (OMB) regulations require 
that OMB approve certain reporting, record keeping, and public 
disclosure requirements (collections of information) imposed by an 
agency.\33\ Therefore, the Commission is providing notice of its 
proposed information collections to OMB for review in accordance with 
section 3507(d) of the Paperwork Reduction Act of 1995.\34\ Upon 
approval of a collection of information, OMB will assign an OMB control 
number and an expiration date.
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    \33\ 5 CFR 1320.11 (2005).
    \34\ 44 U.S.C. 3507(d) (2000).
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    33. FERC-539, ``Gas Pipeline Certificates: Import/Export Related,'' 
identifies the Commission's information collections relating to part 
153 of its regulations, which apply to facilities to import or export 
natural gas and for which authorization under section of the NGA is 
necessary. FERC-537, ``Gas Pipeline Certificates: Construction, 
Acquisition and Abandonment,'' identifies the Commission's information 
collections relating to part 157 of its regulations, which apply to 
natural gas facilities for which authorization under section 7 of the 
NGA is required. The proposed rulemaking will add two new information 
collection categories under part 385 of the Commission's regulations: 
FERC-606, ``Notification of Request for Federal Authorization and 
Requests for Further Information,'' which requires agencies or 
officials issuing, conditioning, or denying requests for federal 
authorizations necessary for a proposed natural gas project to inform 
the Commission of requests received and additional information, if any, 
requested of the applicant by the agency or official, and FERC-607, 
``Report on Decision or Action on Request for Federal Authorization,'' 
which requires agencies or officials to submit to the Commission a copy 
of a decision or action on a request for federal authorization and an 
accompanying index to the documents and materials relied on in reaching 
a conclusion.
    34. The Commission has attempted to restrict additional reporting 
requirements to information essential to enable it to meet its EPAct 
2005 mandate to establish a schedule for Federal authorizations and to 
maintain a complete consolidated record with the minimal additional 
information. The proposed additional reporting requirements are 
summarized below.

A. Natural Gas Companies

    35. Project sponsors will be required to submit an additional 
exhibit with each application. However, the information in the new 
exhibit already should be readily available to the project sponsor; the 
new reporting requirement merely directs that this information be 
summarized and presented in tabular form.
    36. The proposed new Sec.  153.4--which specifies that the 
procedural filing requirements of part 157 of the Commission's 
regulations that apply to applications under NGA section 7, also apply 
to applications under NGA section 3--codifies current practice. As 
noted, project sponsors submitting NGA section 3 applications have 
heretofore adhered to the general filing procedures set forth in part 
157 of the regulations; thus, the Commission does not view its 
endorsement of this past practice as imposing any additional reporting 
burden on NGA section 3 applicants.

B. Federal and State Agencies and Officials Issuing, Conditioning, or 
Denying Federal Authorizations

    37. The proposed new Sec.  385.2013 requires agencies and officials 
responsible for issuing, conditioning, or denying requests for federal 
authorizations necessary for a proposed natural gas project to report 
to the Commission regarding the status of an authorization request. 
This reporting requirement is intended to allow agencies to assist the 
Commission to make better informed determinations in establishing due 
dates for agencies' decisions. The proposed new Sec.  385.2014 requires 
the same agencies and officials to file with the Commission a copy of, 
or summary of, a decision and an index to the record of the proceeding.
    38. The Commission anticipates that only minor modifications to 
current practice and procedure will be necessary to satisfy these 
proposed requirements. The Commission assumes that upon initial receipt 
of a request for federal authorizations, agencies make an initial 
assessment to verify whether the request is ready for processing. 
Proposed Sec.  385.2013 directs the agency or official to forward that 
initial assessment to the Commission. If in the course of processing a 
request, an agency or official finds additional information from the 
applicant is needed, proposed new Sec.  385.2013 directs the agency or 
official to forward to the Commission a copy of any data request sent 
to the applicant. With respect to proposed Sec.  385.2014, the 
Commission assumes that in considering a request for a federal 
authorization, agencies compile and title the documents and materials 
they rely upon in reaching a decision. The Commission is not proposing 
a specific format for an index; thus, an agency's in-house 
recordkeeping may be presented as an index as long as it functions as a 
table of contents to the documents and materials. Note that in 
estimating the burden to provide the information specified in the 
proposed new Sec. Sec.  385.2013 and 385.2014, only state agencies 
acting pursuant to federally delegated authority under the CWA, CAA, 
CZMA, and NHPA are included.\35\
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    \35\ See 44 U.S.C. 3502(3)(A) (2000) and 5 CFR 1320.3(c )(4) 
(2005), stating that ``[a]gency requests for State or local 
governments to provide the agency with information constitute a 
collection of information requiring OMB approval, as are agency 
requests for respondents to provide information to State or local 
governments,'' and 5 CFR 1320.3(d) (2005), stating that 
``[c]ollections of information conducted by State or local agencies 
under contract or in cooperation with a Federal agency are 
considered to be sponsored by the Federal agency and need to be 
approved by OMB.''
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    39. The Commission estimates that on an annual basis the burden to 
comply with this proposed rule will be as follows:

----------------------------------------------------------------------------------------------------------------
                                                     Number of       Number of       Hours per
                 Data collection                    respondents      responses       response       Total hours
----------------------------------------------------------------------------------------------------------------
FERC-537........................................              76             815             0.5             408
FERC-539........................................              12              12             0.5               6

[[Page 30638]]

 
FERC-606........................................              48            1702             4.4            7489
FERC-607........................................              48            1654             6.3          10,423
----------------------------------------------------------------------------------------------------------------

    Total Annual Hours for Collection: 18,326 hours.
    These are mandatory information collection requirements.
    Information Collection Costs: Because of the regional differences 
and the various staffing levels that will be involved in preparing the 
documentation (legal, technical and support) the Commission is using an 
hourly rate of $150 to estimate the costs for filing and other 
administrative processes (reviewing instructions, searching data 
sources, completing and transmitting the collection of information). 
The estimated cost is anticipated to be $2,748,900.
    Title: FERC-539, FERC-537, FERC-606, and FERC-607.
    Action: Proposed Data Collection.
    OMB Control No.: To be determined.
    Respondents: Natural gas pipeline companies and state agencies and 
officers.
    Frequency of Responses: On occasion.
    Necessity of Information: On August 8, 2005, Congress enacted EPAct 
2005. Section 313 of EPAct 2005 directs the Commission (1) to establish 
a schedule for state and federal agencies and officers to act on 
requests for federal authorizations required for NGA section 3 and 7 
gas projects and (2) to maintain a complete consolidated record of all 
decisions or actions by the Commission and other agencies and officers 
with respect to federal authorizations. The Commission considers the 
regulatory revisions proposed herein the minimal necessary to be able 
to implement this Congressional mandate.
    40. The Commission requests comments on the utility of the proposed 
information collection in meeting the mandates of EPAct 2005, the 
accuracy of the burden estimates, how the quality, quantity, and 
clarity of the information to be collected might be enhanced, and any 
suggested methods for minimizing the respondent's burden and meeting 
the EPAct 2005 mandate, including the use of automated information 
techniques. Interested persons may obtain information on the reporting 
requirements or submit comments by contacting the Federal Energy 
Regulatory Commission, 888 First Street, NE., Washington, DC 20426 
(Attention: Michael Miller, Office of the Executive Director, 202-502-
8415 or e-mail [email protected]). Comments may also be sent to 
the Office of Management and Budget (Attention: Desk Officer for the 
Federal Energy Regulatory Commission, fax: 202-395-7285 or e-mail: 
[email protected].)

VI. Public Comments

    41. The Commission invites interested persons to submit comments on 
the matters and issues proposed in this notice to be adopted, including 
any related matters or alternative proposals that commenters may wish 
to discuss. Comments are due by July 31, 2006. Comments must refer to 
Docket No. RM06-1-000, and must include the commenter's name, the 
organization represented, if applicable, and address in the comments. 
Comments may be filed either in electronic or paper format. The 
Commission encourages electronic filing.
    42. Comments may be filed electronically via the eFiling link on 
the Commission's Web site at http://www.ferc.gov. The Commission 
accepts most standard word processing formats and requests commenters 
to submit comments in a text-searchable format rather than a scanned 
image format. Commenters filing electronically do not need to make a 
paper filing. Commenters unable to file comments electronically must 
send an original and 14 copies of their comments to: Federal Energy 
Regulatory Commission, Secretary of the Commission, 888 First Street, 
NE., Washington, DC 20426.
    43. All comments will be placed in the Commission's public files 
and may be viewed, printed, or downloaded remotely as described in the 
Document Availability section below. Commenters on this proposal are 
not required to serve copies of their comments on other commenters.

VII. Document Availability

    44. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and print the contents of this document via the 
Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's 
Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. 
Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.

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.

18 CFR Part 385

    Administrative practice and procedure, Electric power, Penalties, 
Pipelines, Reporting and recordkeeping requirements.

    By direction of the Commission.
Magalie R. Salas,
Secretary.
    In consideration of the foregoing, the Commission proposes to amend 
parts 153, 157, 375, and 385, 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 153.4 is added to read as follows:


Sec.  153.4  General requirements.

    The procedures in Sec. Sec.  157.5, 157.6, 157.8, 157.9, 157.10, 
157.11, and 157.12 of this chapter are applicable to applications under 
section 3 of the Natural Gas Act filed pursuant to subpart B of this 
part.
    3. In Sec.  153.8, paragraph (a)(9) is added to read as follows:


Sec.  153.8  Required exhibits.

    (a) * * *
    (9) Exhibit H. A statement identifying each Federal authorization 
that the proposal will require; the Federal

[[Page 30639]]

agency or officer, or State agency or officer acting pursuant to 
delegated Federal authority, which will issue each authorization; the 
date each request for authorization was submitted; and the date by 
which final action on each Federal authorization has been requested or 
is expected.
* * * * *

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

    4. 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.

    5. In Sec.  157.9, the heading is revised, the current single 
paragraph is designated as paragraph (a), and a new paragraph (b) is 
added to read as follows:


Sec.  157.9  Notice of application and notice of schedule for Federal 
authorizations.

    (a) * * *
    (b) Notice of each application may itemize each permit, special use 
authorization, certificate, opinion, or other approval that will be 
required under Federal law, and may specify a schedule for each Federal 
agency or officer, or State agency or officer acting pursuant to 
delegated Federal authority, to act on a request for Federal 
authorization. Final action on a request for Federal authorization is 
due no later than 90 days after the issuance of the Commission's final 
environmental document, or final order if no environmental document is 
issued, unless a schedule is otherwise established by Federal law or by 
the Commission.
    6. In Sec.  157.14, paragraph (a)(12) is added to read as follows:


Sec.  157.14  Exhibits.

    (a) * * *
    (12) Exhibit J--Federal authorizations. A statement identifying 
each Federal authorization that the proposal will require; the Federal 
agency or officer, or State agency or officer acting pursuant to 
delegated Federal authority, which will issue each authorization; the 
date each request for authorization was submitted; and the date by 
which final action on each Federal authorization has been requested or 
is expected.
* * * * *

PART 375--THE COMMISSION

    7. 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.

    8. In Sec.  375.308, paragraph (bb) is added to read as follows:


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

* * * * *
    (bb) Establish a schedule consistent with Federal law for each 
Federal agency or officer, or State agency or officer acting pursuant 
to delegated Federal authority, to issue or deny Federal authorizations 
required for applications under section 3 or 7 of the Natural Gas Act.

PART 385--RULES OF PRACTICE AND PROCEDURE

    9. The authority citation for part 385 continues to read as 
follows:

    Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717z, 3301-3432; 16 
U.S.C. 791a-825r, 2601-2645; 28 U.S.C. 2461; 31 U.S.C. 3701, 9701; 
42 U.S.C. 7101-7352; 49 U.S.C. 60502; 49 App. U.S.C. 1-85 (1988).

    10. Section 385.2013 is redesignated as Sec.  385.2015, and new 
Sec. Sec.  385.2013 and 385.2014 are added to read as follows:


Sec.  385.2013  Notification of requests for Federal authorizations and 
requests for further information.

    (a) For each Federal authorization--i.e., permit, special use 
authorization, certification, concurrence, opinion, or other approval--
required under Federal law with respect to an application for 
authorization under section 3 of the Natural Gas Act or a certificate 
of public convenience and necessity under section 7 of the Natural Gas 
Act, each Federal or State agency or officer responsible for a Federal 
authorization must file with the Commission, by electronic means, 
within thirty days of the date of receipt of a request for a Federal 
authorization, notice of the following:
    (1) Whether the application is ready for processing, and if not, 
what additional information or materials will be necessary to assess 
the merits of the request;
    (2) The time the agency or official will allot the applicant to 
provide the necessary additional information or materials;
    (3) What, if any, studies will be necessary in order to evaluate 
the request;
    (4) The anticipated effective date of the agency's or official's 
decision; and
    (5) If applicable, the schedule set by Federal law for the agency 
or official to act.
    (b) A Federal or State agency or officer considering a request for 
a Federal authorization that submits a data request to an applicant 
must file a copy of the data request with the Commission, by electronic 
means, within three days of submitting the request to the applicant.


Sec.  385.2014  Petitions for appeal or review of Federal 
authorizations.

    (a) For each Federal authorization--i.e., permit, special use 
authorization, certification, concurrence, opinion, or other approval--
required under Federal law with respect to an application for 
authorization under section 3 of the Natural Gas Act or a certificate 
of public convenience and necessity under section 7 of the Natural Gas 
Act, the Federal or State agency or officer responsible for each 
Federal authorization must file with the Commission, by electronic 
means, within three days of the effective date of a decision or action 
on a request for a Federal authorization or the expiration of the time 
provided to act, the following:
    (1) A copy of any final decision or action;
    (2) An index identifying all documents and materials--including 
pleadings, comments, evidence, exhibits, testimony, project 
alternatives, studies, and maps--relied upon by the agency or official 
in reaching a decision or action; and
    (3) The designation ``Consolidated Record'' and the Commission 
docket number for the proceeding applicable to the requested Federal 
authorization.
    (b) The agencies' and officers' decisions, actions, and indices, 
and the Commission's record in each proceeding, constitute the complete 
consolidated record. The original documents and materials that make up 
the complete consolidated record must be retained by agencies, 
officers, and the Commission for at least three years from the 
effective date of a decision or action or until an appeal or review is 
concluded.
    (c) Upon appeal or review of a Federal authorization, agencies, 
officers, and the Commission will transmit to the reviewing authority, 
as requested, documents and materials that constitute the complete 
consolidated record.

[FR Doc. E6-8205 Filed 5-26-06; 8:45 am]
BILLING CODE 6717-01-P