[Federal Register Volume 77, Number 57 (Friday, March 23, 2012)]
[Notices]
[Pages 17009-17012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6406]


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OFFICE OF THE FEDERAL COORDINATOR FOR ALASKA NATURAL GAS TRANSPORTATION 
PROJECTS


Review of Federal Permit Conditions

AGENCY: Office of the Federal Coordinator for Alaska Natural Gas 
Transportation Projects.

ACTION: Notice and request for public comment.

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SUMMARY: The Office of the Federal Coordinator for Alaska Natural Gas 
Transportation Projects is proposing to implement its statutory 
responsibilities under the Alaska Natural Gas Pipeline Act (15 U.S.C. 
720) with respect to federal permit conditions imposed on the gas 
pipeline project. This policy statement will establish the agency's 
procedures for determining whether certain conditions included in a 
certificate, right-of-way, permit, lease, or other authorization for an 
Alaska natural gas transportation project by other federal agencies are 
prohibited under the Alaska Natural Gas Pipeline Act.

DATES: Submit comments on or before April 23, 2012.

ADDRESSES: Address all comments concerning this notice to Frank 
Richards, Deputy Federal Coordinator, Office of the Federal Coordinator 
for Alaska Natural Gas Transportation Projects; 188 W. Northern Lights 
Blvd., Suite 600; Anchorage, AK 99503. Submit electronic comments to: 
[email protected].

FOR FURTHER INFORMATION CONTACT: Frank Richards, Deputy Federal 
Coordinator, Alaska Natural Gas Transportation Projects, 907-271-5240.

SUPPLEMENTARY INFORMATION:

I. Background

    Congress enacted the Alaska Natural Gas Pipeline Act in 2004 (15 
U.S.C. 720) to encourage completion of a pipeline to deliver natural 
gas from Alaska's North Slope to the Lower 48 states. The Alaska 
Natural Gas Pipeline Act establishes a new process for approval and 
construction of the pipeline, either a project that completes the 
Alaska Natural Gas Transportation System that President Carter approved 
in 1977 pursuant to the Alaska Natural Gas Transportation Act of 1976 
(15 U.S.C. 719), or a different pipeline project under the Natural Gas 
Act. The Alaska Natural Gas Pipeline Act of 2004 created the Office of 
the Federal Coordinator for Alaska Natural Gas Transportation Projects 
and charged the Federal Coordinator, the agency head, with four primary 
responsibilities: (1) Coordinate the expeditious discharge of all 
activities by all federal agencies with respect to an Alaska natural 
gas pipeline; (2) Ensure that all federal agencies comply with the 
Alaska Natural Gas Pipeline Act; (3) Prohibit federal agencies from 
imposing permit conditions that would prevent or impair in any 
significant respect the expeditious construction and operation of the 
project unless the conditions are required by law. The act directs the 
Federal Coordinator to determine whether a term or condition would 
prevent or impair in any significant respect the expeditious 
construction and operation of the project; and (4) Participate with the 
state of Alaska in a joint construction surveillance and monitoring 
agreement.
    In addition, Congress transferred to the Federal Coordinator all of 
the responsibilities and authorities of the Federal Inspector under the 
Alaska Natural Gas Transportation Act of 1976. These responsibilities 
will be applicable if the Alaska Natural Gas Transportation System gas 
line is completed or if the 1980's prebuilt sections of that project 
are expanded or modified within the United States to handle Alaska gas.
    This policy addresses the third of the four statutory requirements 
listed above by explaining how the Federal Coordinator will determine 
whether conditions that federal agencies intend to impose on permits, 
rights-of-way or other authorizations for an Alaska gas transportation 
project will prevent or impair in any significant respect the 
expeditious construction and operation of the project.
    Several sections of the Alaska Natural Gas Pipeline Act require the 
Federal Coordinator to consider permit conditions imposed by federal 
agencies with respect to the pipeline. Section 106(d)(2), Public Law 
108-324, 118 Stat. 1255 prohibits agencies from including

[[Page 17010]]

certain conditions in permits and other approvals, it states:

    (2) PROHIBITION OF CERTAIN TERMS AND CONDITIONS--No Federal 
agency may include in any certificate, right-of-way, permit, lease, 
or other authorization issued to an Alaska natural gas 
transportation project any term or condition that may be permitted, 
but is not required, by any applicable law if the Federal 
Coordinator determines that the term or condition would prevent or 
impair in any significant respect the expeditious construction and 
operation, or an expansion, of the Alaska natural gas transportation 
project.

    Thus, the Alaska Natural Gas Pipeline Act of 2004 prohibits 
conditions that may be included but are not required by any applicable 
law if the Federal Coordinator determines that the condition would 
prevent or impair in any significant respect the expeditious 
construction and operation, or an expansion, of the Alaska natural gas 
transportation project. The Federal Coordinator's function with regard 
to some conditions is limited. Under the Alaska Natural Gas Pipeline 
Act, Division C, Section 106(d)(4), Public Law 108-324 denies the 
Federal Coordinator any authority to override the Federal Energy 
Regulatory Commission's implementation of open seasons for the project 
or the Commission's orders for expansion of the project under Section 
105 of the Alaska Natural Gas Pipeline Act, or to add or impose any 
terms or conditions to the Federal Energy Regulatory Commission 
certificate or any agency's permit or other authorization for the 
project. Division C, Section 106(d)(4), Public Law 108-324 states:

    (4) LIMITATION--The Federal Coordinator shall not have authority 
to--
    (A) Override--
    (i) The implementation or enforcement of regulations issued by 
the Commission under section 103; or
    (ii) An order by the Commission to expand the project under 
section 105; or
    (B) Impose any terms, conditions, or requirements in addition to 
those imposed by the Commission or any agency with respect to 
construction and operation, or an expansion of, the project.

The Alaska Natural Gas Pipeline Act also prohibits federal agencies 
from amending any previously issued permit or authorization to add 
conditions determined by the Federal Coordinator to prevent or impair 
in any significant respect the expeditious construction and operation 
of the pipeline.

    (3) PROHIBITION OF CERTAIN ACTIONS--Unless required by law, no 
Federal agency shall add to, amend, or abrogate any certificate, 
right-of-way, permit, lease, or other authorization issued to an 
Alaska natural gas transportation project if the Federal Coordinator 
determines that the action would prevent or impair in any 
significant respect the expeditious construction and operation, Or 
an expansion, of the Alaska natural gas transportation project. 
ANGPA Sec.  106(d)(3).

    The prohibition of permit conditions which would prevent or impair 
in any significant respect expeditious construction and operation does 
not apply to conditions adopted by state agencies, even those issued 
pursuant to programs encouraged or funded by the federal government. 
However, if a state-issued permit includes a condition which is 
incorporated into a federal permit by a federal agency, the Federal 
Coordinator may review the condition that the federal agency adopted. 
Any determination the Federal Coordinator makes would not affect the 
state condition, just the applicability of the federal permit 
condition.

II. Discussion of Proposed Policy

    The Office of the Federal Coordinator for Alaska Natural Gas 
Transportation Projects proposes to implement provisions of the Alaska 
Natural Gas Transportation Act of 2004 by policy, which will establish 
the process by which the Federal Coordinator will exercise its 
responsibility to determine whether permit conditions would interfere 
with completion of the project. This policy will apply to the agency's 
review of conditions initially included in a permit or authorization 
for an Alaska natural gas transportation project, as well as any 
renewal or reissuance of permits or other authorizations.

A. Intention To Work With Other Agencies

    It is the Office of the Federal Coordinator for Alaska Natural Gas 
Transportation Projects' intention to work closely with other federal 
agencies before, during and after the National Environmental Policy Act 
process and during the permit application review process of each agency 
in order to identify the likely need for permit conditions early and to 
determine as soon as possible whether a particular permit condition 
would be inconsistent with the Alaska Natural Gas Pipeline Act's 
statutory prohibition. The Office of the Federal Coordinator for Alaska 
Natural Gas Transportation Projects expects that through coordination 
with other federal agencies and the permit applicant, it should be able 
to resolve concerns about most terms and conditions early on and either 
avoid a formal review process or conclude it expeditiously.

B. Definitions

    (1) Condition: The agency proposes to define term or condition of 
the Alaska Natural Gas Pipeline Act, Section 106(d) (2), Public Law 
108-324, 118 Stat. 1255--referred to in this policy as condition--to 
mean any obligation not proposed by the applicant but proposed to be 
added to the permit or authorization by a federal agency. That includes 
all terms, stipulations or conditions required by the agency and any 
other requirement imposed by a federal agency. It excludes any 
obligation included by the applicant in its application, even if the 
obligation is suggested by an agency.
    (2) Certificate, Right-Of-Way, Permit, Lease, or Other 
Authorization: The agency proposes to define certificate, right-of-way, 
permit, lease or other authorization to mean any certificate, right-of-
way, permit, lease, approval or other authorization required in order 
to construct or operate an Alaska natural gas transportation project, 
but excludes permissions for useful, but not required authorizations. 
Accordingly, federal loan guarantees, licenses for communications 
equipment not necessary for the project and other such permissions 
would not be subject to OFC review.
    (3) Alaska Natural Gas Transportation Project: The agency does not 
intend to propose a definition of Alaska natural gas transportation 
project, as that term is defined in the Alaska Natural Gas Pipeline Act 
in Section 102 of Public Law 108-324, 118 Stat. 1255. It is important 
to note that the definition includes the entire system, not simply the 
pipeline. Therefore, this permit review policy will cover conditions 
addressing support facilities, compressor stations, the gas treatment 
plant, and other parts of the project.
    (4) Prevent or Impair in Any Significant Respect the Expeditious 
Construction and Operation of the Project: The agency does not intend 
to define prevent or impair in any significant respect the expeditious 
construction and operation of the project because the agency believes 
this should be interpreted based on the circumstances of the project at 
the time of an agency's action, the agency's intention and 
justification in crafting the proposed condition, and the condition's 
effect on the project. Prevent or impair in any significant respect 
cannot be well-defined in the absence of specific circumstances. As an 
example, a condition that causes a significant delay in the first in-
service date contractually agreed to between the

[[Page 17011]]

pipeline owner and/or operator and a shipper could, if extreme, be 
deemed to impair expeditious construction and operation of the project. 
However, such a determination could only be made if the contractual in-
service date were reasonable in light of the complexity of the project 
and other circumstances.

C. Process for Review of Permit Conditions

    The Office of the Federal Coordinator for Alaska Natural Gas 
Transportation Projects does not intend to review every condition on 
every permit. Rather, the agency will review permit conditions at the 
request of the applicant or permittee. In addition, agency reserves the 
right to select conditions for review on its own initiative. When the 
permitting agency's practice or regulations allow that agency or the 
Office of the Federal Coordinator to share a draft permit condition 
with an applicant, the Office of the Federal Coordinator will work with 
the applicant and the agency as early as possible to identify 
problematic permit conditions. An applicant may request review of a 
permit condition by the Office of the Federal Coordinator prior to 
issuance if the applicant believes it may prevent or impair in any 
significant respect the expeditious construction and operation of the 
project.
    If the practice of the permitting agency does not allow draft 
permit conditions to be shared with an applicant, the permittee will 
have to wait to request review of a permit condition until after the 
permit is issued.
    Requests from the applicant or the permittee for review of permit 
conditions should specify what specific condition will prevent or 
impair expeditious construction and operation of the project and should 
explain why the condition will have a detrimental impact on the 
project.

D. Information Required for Review

    The Office of the Federal Coordinator will need background 
information from the agency in order to conduct its review, including:
    (1) The language of the specific condition.
    (2) A citation to the legal requirement for the condition.
    (3) Any analysis the agency has prepared of the cost of 
implementing the condition.
    (4) Any other information that explains the agency's reasons to 
include the condition, especially the circumstances that require its 
inclusion. This should include any discussion of the benefits of the 
conditions, or a cost-benefit analysis if one has been prepared.
    (5) If the permit has not been issued, a statement addressing 
whether it is permissible under the agency's practice to share the 
draft condition with the applicant.
    The Office of the Federal Coordinator expects this information 
should be readily available from the agency and will not impose a 
burden on the agency, as it should have already documented the need for 
the condition as part of the administrative record. Accordingly, the 
Office of the Federal Coordinator anticipates that the agency will be 
able to provide this information within ten (10) calendar days of 
Office of the Federal Coordinator's notification of a review and 
request for additional information.
    Based on Office of the Federal Coordinator's review of the proposed 
condition, the Federal Coordinator will determine whether the condition 
would prevent or impair in any significant respect the expeditious 
construction and operation of the project. In most cases, the Office of 
the Federal Coordinator's review should be completed in less than 
thirty (30) days after a project applicant requests a review. The 
Federal Coordinator will provide notice of its decision and reasoning 
to the applicant and the agency. If the Federal Coordinator determines 
that the condition or proposed condition would prevent or impair in any 
significant respect the expeditious construction and operation of the 
project, the Office of the Federal Coordinator will facilitate a 
meeting between the permittee or applicant and the issuing agency and, 
if appropriate, other experts, in order to help resolve the issue.

III. Proposed Policy for Review of Federal Permit Conditions for an 
Alaska Natural Gas Pipeline Project

    The purpose of this policy is to explain how the Office of the 
Federal Coordinator (OFC) will exercise its responsibilities with 
respect to review of permit conditions under Section 106(d) of the 
Alaska Natural Gas Pipeline Act (ANGPA). This policy applies to the 
issuance of initial permits, as well as the renewal or reissuance of 
permits for an Alaska natural gas transportation project.
    It is the OFC's intention to work closely with other federal 
agencies before, during and after the National Environmental Policy Act 
process and during the permit application review process of each agency 
in order to identify the likely need for permit conditions early and to 
determine as soon as possible whether a particular permit condition 
would be precluded by ANGPA's statutory prohibition. The OFC expects 
that through coordination with other federal agencies and the permit 
applicant, it should be able to resolve concerns about most terms and 
conditions early on and either avoid a formal review process or 
conclude it expeditiously.

1. Definitions

    (a) Term or condition in Section 106(d)(2) of ANGPA--referred to in 
this policy as condition--means any obligation not proposed by the 
applicant but proposed to be added to the permit or authorization by a 
federal agency. This includes all terms, stipulations, conditions or 
additions to the application and any other requirement imposed by an 
agency. It excludes any obligation included by the applicant in its 
application, even if the obligation is suggested by an agency.
    (b) Certificate, right-of-way, permit, lease or other authorization 
means any certificate, right-of-way, permit, lease, approval or other 
authorization required in order to construct or operate an Alaska 
natural gas transportation project.

2. Review of Proposed Terms or Conditions

    (a) Review of permit conditions by request of applicant.
    (1) An applicant for a permit or a permittee for any permit, 
certificate, right-of-way or other authorization for an Alaska natural 
gas transportation project may request the Federal Coordinator to 
review any condition included in or proposed for inclusion in a permit, 
certificate, right-of-way or other authorization.
    (2) Such requests must be made to the Federal Coordinator no later 
than 30 days after permit issuance.
    (3) The request shall include a specific identification of each 
condition which the applicant or permittee believes is inconsistent 
with ANGPA and an explanation of the basis of that belief, including 
information that supports the contention that the permit condition 
would prevent or impair in any significant respect the expeditious 
construction and operation of the project.
    (4) The Federal Coordinator may review a permit condition even if 
the permittee has not requested review.
    (b) Materials necessary for review.
    If the Federal Coordinator receives a request for review of any 
condition, the OFC will notify the issuing agency of the request. The 
OFC will need the following information from the agency:

[[Page 17012]]

    (1) The language of the specific condition.
    (2) A citation to the legal requirement for the condition.
    (3) Any analysis the agency has prepared of the cost of 
implementing the condition.
    (4) Any other information that explains the agency's reasons to 
include the condition, especially the circumstances that require its 
inclusion. This should include any discussion of the benefits of the 
conditions, or a cost-benefit analysis if one has been prepared.
    (5) If the permit has not yet been issued, a statement addressing 
whether agency practice or regulations would allow OFC to discuss the 
proposed condition with the applicant.
    (c) Permit condition review.
    In determining whether a proposed permit condition would prevent or 
impair expeditious construction and operation of the project, the OFC 
will consider:
    (1) Any delays in project construction and operation caused by the 
condition.
    (2) All other available information, including, if available, the 
project's cost of meeting the condition.
    (3) The statutory and regulatory basis for the condition, as 
provided by the issuing agency.
    (4) The views of the applicant.
    (d) The OFC will endeavor to complete its review within 30 days 
after a request from an applicant or permittee.
    (e) The Federal Coordinator's decision
    (1) The Federal Coordinator will determine whether the proposed 
condition would prevent or impair in any significant respect the 
expeditious construction and operation of an Alaska natural gas 
transportation project or expansion of that project. The Federal 
Coordinator's decision will be sent to the agency and the applicant or 
permittee.
    (2) If the Federal Coordinator determines that the condition or 
proposed condition would prevent or impair in any significant respect 
the expeditious construction and operation of the project, the OFC will 
facilitate a meeting between the permittee or applicant and the issuing 
agency and, if appropriate, other experts, in order to help resolve the 
issue.

    Dated: March 9, 2012.
Larry Persily,
Federal Coordinator.
[FR Doc. 2012-6406 Filed 3-22-12; 8:45 am]
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