[Federal Register Volume 88, Number 80 (Wednesday, April 26, 2023)]
[Rules and Regulations]
[Pages 25272-25278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08805]


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DEPARTMENT OF ENERGY

10 CFR Part 590


Policy Statement on Export Commencement Deadlines in 
Authorizations To Export Natural Gas to Non-Free Trade Agreement 
Countries

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                                                    Docket Nos.
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Lake Charles Exports, LLC...............  11-59-LNG.
Gulf LNG Liquefaction Company, LLC......  12-101-LNG.
Golden Pass LNG Terminal LLC............  12-156-LNG.
Lake Charles LNG Export Co., LLC........  13-04-LNG.
Magnolia LNG, LLC.......................  13-132-LNG.
Delfin LNG LLC..........................  13-147-LNG.
Alaska LNG Project LLC..................  14-96-LNG.
Pieridae Energy (USA) Ltd...............  14-179-LNG.
Texas LNG Brownsville LLC...............  15-62-LNG.
Cameron LNG, LLC........................  15-90-LNG.
Port Arthur LNG, LLC....................  15-96-LNG.
Rio Grande LNG, LLC.....................  15-190-LNG.
Venture Global Plaquemines LNG, LLC.....  16-28-LNG.
Lake Charles LNG Export Co., LLC........  16-109-LNG.
Lake Charles Exports, LLC...............  16-110-LNG.
Driftwood LNG LLC.......................  16-144-LNG.
Freeport LNG Expansion, L.P. & FLNG       18-26-LNG.
 Liquefaction 4, LLC.
Mexico Pacific Limited LLC..............  18-70-LNG.
Corpus Christi Liquefaction, LLC........  18-78-LNG.
ECA Liquefaction, S. de R.L. de C.V.....  18-144-LNG.
Energ[iacute]a Costa Azul, S. de R.L. de  18-145-LNG.
 C.V.
Epcilon LNG LLC.........................  20-31-LNG.
Vista Pacifico LNG, S.A.P.I. de C.V.....  20-153-LNG.
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AGENCY: Office of Fossil Energy and Carbon Management, Department of 
Energy.

ACTION: Policy statement.

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SUMMARY: The Department of Energy (DOE) is reaffirming the seven-year 
deadline for authorization holders to commence exports of domestically 
produced natural gas, including liquefied natural gas (LNG), to non-
free trade agreement (non-FTA) countries set forth in long-term 
authorizations issued under the Natural Gas Act. For existing and 
future non-FTA authorizations for the export of LNG, DOE will allow

[[Page 25273]]

authorizations to expire on the export commencement deadline originally 
set forth in the order and will not consider an application for an 
extension, unless the authorization holder demonstrates both that: it 
has physically commenced construction on the associated export 
facility, and its inability to comply with the existing export 
commencement deadline is the result of extenuating circumstances 
outside of its control. Authorization holders unable to make this 
demonstration may submit a new non-FTA application, which will be 
considered without prejudice. This policy will increase transparency 
for non-FTA authorization holders and pending applicants who have not 
yet commenced exports, while providing greater certainty about DOE's 
approvals for the LNG export market. Concurrently with the issuance of 
this Policy Statement, DOE is issuing final orders on three pending 
applications for a commencement extension.

DATES: This Policy Statement is applicable on April 21, 2023.

FOR FURTHER INFORMATION CONTACT: Amy Sweeney or Jennifer Wade, U.S. 
Department of Energy (FE-34), Office of Regulation, Analysis, and 
Engagement, Office of Fossil Energy and Carbon Management, Forrestal 
Building, Room 3E-042, 1000 Independence Avenue SW, Washington, DC 
20585; (202) 586-2627 or (202) 586-4749; [email protected] or 
[email protected]; Cassandra Bernstein, U.S. Department of 
Energy (GC-76), Office of the Assistant General Counsel for Energy 
Delivery and Resilience, Forrestal Building, Room 6D-033, 1000 
Independence Avenue SW, Washington, DC 20585; (202) 586-9793; 
[email protected].

SUPPLEMENTARY INFORMATION: 
    Acronyms and Abbreviations. Acronyms and abbreviations used in this 
document are set forth below for reference.

Bcf/d Billion Cubic Feet per Day
DOE United States Department of Energy
FERC Federal Energy Regulatory Commission
FTA Free Trade Agreement
LNG Liquefied Natural Gas
MARAD Maritime Administration
NEPA National Environmental Policy Act of 1969
NGA Natural Gas Act of 1938
Tcf Trillion Cubic Feet

Table of Contents

I. Statutory Background
II. Regulatory Background
    A. Long-Term Non-FTA Authorizations Issued to Date
    B. Seven-Year Commencement Deadline for Exports to Non-FTA 
Countries
    C. Applications To Extend the Export Commencement Deadline
    1. Orders Extending the Export Commencement Deadline Granted in 
2020
    2. Applications for Commencement Extensions Submitted Since 2022
III. Policy Statement
    A. Basis for Change in DOE's Treatment of Applications for 
Commencement Extensions
    B. Policy and Implementation
    C. Policy Objectives
    D. Applicability of Policy Statement
IV. Administrative Benefits
V. Approval of the Office of the Secretary

I. Statutory Background

    DOE is responsible for authorizing exports of domestically produced 
natural gas, including LNG,\1\ to foreign countries under section 3 of 
the Natural Gas Act (NGA).\2\ The policy announced in this Policy 
Statement is specific to authorizations \3\ for the export of natural 
gas to countries with which the United States does not have a free 
trade agreement (FTA) requiring national treatment for trade in natural 
gas and with which trade is not prohibited by U.S. law or policy (non-
FTA countries).\4\ NGA section 3(a) authorizes the exportation of 
natural gas from the United States unless DOE determines that doing so 
``will not be consistent with the public interest.'' \5\ DOE, as 
affirmed by the U.S. Court of Appeals for the District of Columbia 
Circuit, has consistently interpreted this provision as creating a 
rebuttable presumption that a proposed export of natural gas to non-FTA 
countries is in the public interest.\6\ Accordingly, DOE will conduct 
an informal adjudication and grant an application requesting a non-FTA 
authorization unless DOE finds that the proposed exportation will not 
be consistent with the public interest.\7\ NGA section 3(a) also 
authorizes DOE, ``after opportunity for hearing, and for good cause 
shown,'' to issue any supplemental order ``as it may find necessary or 
appropriate.'' \8\
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    \1\ In referring to natural gas in this Policy Statement, DOE 
refers primarily, but not exclusively, to LNG. Some DOE proceedings 
have involved (and, in the future, may involve) other types of 
natural gas, including compressed natural gas and compressed gas 
liquid. See 15 U.S.C. 717a(5) (definition of natural gas); 10 CFR 
590.102(i).
    \2\ 15 U.S.C. 717b. The Secretary's authority was established by 
the Department of Energy Organization Act, 42 U.S.C. 7151(b), which 
transferred jurisdiction over import and export authorizations from 
the Federal Power Commission to the Secretary of Energy; see also 42 
U.S.C. 7172(f). The authority to regulate the imports and exports of 
natural gas, including LNG, under NGA section 3 has been delegated 
to the Assistant Secretary for Fossil Energy and Carbon Management 
(FECM) in Redelegation Order No. S4-DEL-FE1-2023, issued on April 
10, 2023.
    \3\ For purposes of this Policy Statement, DOE uses the terms 
``authorization'' and ``order'' interchangeably.
    \4\ 15 U.S.C. 717b(a). This Policy Statement does not apply to 
exports to FTA countries under NGA section 3(c), 15 U.S.C. 717b(c). 
Section 3(c) of the NGA, as amended by section 201 of the Energy 
Policy Act of 1992 (Pub. L. 102-486), requires that applications to 
export natural gas to FTA countries ``shall be deemed to be 
consistent with the public interest'' and granted ``without 
modification or delay.'' 15 U.S.C. 717b(c). Additionally, as of 
August 24, 2018, qualifying ``small-scale natural gas exports'' to 
non-FTA countries are deemed to be consistent with the public 
interest under NGA section 3(a). See 10 CFR 590.102(p); 10 CFR 
590.208(a); see also U.S. Dep't of Energy, Small-Scale Natural Gas 
Exports; Final Rule, 83 FR 35106 (July 25, 2018). Because small-
scale orders contain different terms than non-FTA orders involving 
larger volumes of exports (specifically, requiring authorization 
holders to commence small-scale exports within two years), this 
Policy Statement also does not apply to small-scale exports of 
natural gas.
    \5\ 15 U.S.C. 717b(a).
    \6\ See Sierra Club v. U.S. Dep't of Energy, 867 F.3d 189, 203 
(D.C. Cir. 2017) (``We have construed [NGA section 3(a)] as 
containing a `general presumption favoring [export] authorization.' 
'') (quoting W. Va. Pub. Serv. Comm'n v. U.S. Dep't of Energy, 681 
F.2d 847, 856 (D.C. Cir. 1982)).
    \7\ Id. (``there must be `an affirmative showing of 
inconsistency with the public interest' to deny the application'' 
under NGA section 3(a)) (quoting Panhandle Producers & Royalty 
Owners Ass'n v. Econ. Regulatory Admin., 822 F.2d 1105, 1111 (D.C. 
Cir. 1987)).
    \8\ 15 U.S.C. 717b(a).
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    DOE's authorization is solely with respect to the export (or 
import) of natural gas and does not extend to authorization over the 
siting, construction, and operation of the liquefaction and export 
facilities. For LNG terminals located onshore or in state waters, the 
agency responsible for permitting the export facilities is the Federal 
Energy Regulatory Commission (FERC) pursuant to NGA section 3(e).\9\ 
For LNG terminals located offshore beyond state waters, the responsible 
agency is the Maritime Administration (MARAD) within the Department of 
Transportation pursuant to the Deepwater Ports Act of 1974.\10\
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    \9\ 15 U.S.C. 717b(e); see also 15 U.S.C. 717a(11) (definition 
of LNG terminal); 18 CFR 153.2(d); Sierra Club v. Fed. Energy 
Regulatory Comm'n, 827 F.3d 36, 40 (D.C. Cir. 2016) (observing that, 
while DOE ``maintains exclusive authority over the export of natural 
gas as a commodity,'' DOE has delegated to FERC the authority to 
approve or deny an application for the siting, construction, 
operation, or expansion of an LNG terminal under NGA section 3(e)).
    \10\ See 33 U.S.C. 1502(9), 1503(a). The Deepwater Port Act 
originally applied only to oil import terminals, but was amended to 
include natural gas terminals. See Maritime Transportation Security 
Act of 2002, sec. 106, Public Law 107-295, 116 Stat. 2064.
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    Although most approved non-FTA exports originate (or will 
originate) from existing or proposed projects to be built in the United 
States, DOE has also approved non-FTA exports in extraterritorial 
proceedings involving

[[Page 25274]]

Mexico or Canada. In such proceedings, DOE approves the export of U.S.-
sourced natural gas by pipeline to Mexico or Canada under NGA section 
3(c), and authorizes the re-export \11\ of the U.S.-sourced natural gas 
in the form of LNG from a liquefaction and export facility to be built 
in Mexico or Canada, respectively, to non-FTA countries under NGA 
section 3(a).\12\
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    \11\ For purposes of these proceedings, ``re-export'' means to 
ship or transmit U.S.-sourced natural gas in its various forms (gas, 
compressed, or liquefied) subject to DOE's jurisdiction under the 
NGA, 15 U.S.C. 717b, from one foreign country (i.e., a country other 
than the United States) to another foreign country.
    \12\ See, e.g., Vista Pacifico LNG, S.A.P.I. de C.V., DOE/FECM 
Order No. 4929, Docket No. 20-153-LNG, Order Granting Long-Term 
Authorization to Re-Export U.S.-Sourced Natural Gas in the Form of 
Liquefied Natural Gas from Mexico to Non-Free Trade Agreement 
Nations, 1-7 (Dec. 20, 2022).
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    Before reaching a final decision on any non-FTA application, DOE 
must also comply with the National Environmental Policy Act of 1969 
(NEPA).\13\
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    \13\ 42 U.S.C. 4321 et seq.
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II. Regulatory Background

A. Long-Term Non-FTA Authorizations Issued to Date

    Although NGA section 3(a) establishes a broad public interest 
standard and a presumption favoring export authorizations, the statute 
does not define ``public interest'' or identify criteria that must be 
considered. In prior decisions, DOE has identified a range of factors 
that it evaluates when reviewing an application to export LNG to non-
FTA countries. These factors include economic impacts, international 
impacts, security of natural gas supply, and environmental impacts, 
among others. To conduct this review, DOE looks to record evidence 
developed in the application proceeding.\14\
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    \14\ See, e.g., Sabine Pass Liquefaction, LLC, DOE/FECM Order 
No. 4800, Docket No. 19-125-LNG, Order Granting Long-Term 
Authorization to Export Liquefied Natural Gas to Non-Free Trade 
Agreement Nations, 10-28 (Mar. 16, 2022).
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    Currently, there are 41 long-term orders \15\ authorizing the 
export of LNG sourced from the United States (both the lower-48 states 
and Alaska) to non-FTA countries under NGA section 3(a).\16\ These 
orders authorize a cumulative volume of non-FTA exports equivalent to 
47.28 billion cubic feet (Bcf) per day (Bcf/d) of natural gas sourced 
from the lower-48 United States and 2.55 Bcf/d sourced from Alaska, or 
approximately 17.3 trillion cubic feet (Tcf) and 0.9 Tcf per year, 
respectively.\17\ This cumulative volume includes 43.52 Bcf/d of U.S.-
sourced natural gas authorized for export from facilities built (or 
proposed to be built) in the United States (including Alaska), and 6.31 
Bcf/d of U.S-sourced natural gas authorized for re-export in the form 
of LNG from facilities to be built in Mexico or Canada.\18\ It does not 
include volumes from long-term non-FTA orders that DOE has vacated \19\ 
or orders authorizing small-scale exports of natural gas.\20\
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    \15\ Under DOE practice, ``long-term'' refers to orders greater 
than two years in duration. See U.S. Dep't of Energy, Including 
Short-Term Export Authority in Long-Term Authorizations for the 
Export of Natural Gas on a Non-Additive Basis; Policy Statement, 86 
FR 2243 (Jan. 12, 2021).
    \16\ See Freeport LNG Expansion, L.P., et al., DOE/FECM Order 
No. 4961, Docket No. 21-98-LNG, Order Granting Long-Term 
Authorization to Export Liquefied Natural Gas to Non-Free Trade 
Agreement Nations, at 72-76 (Mar. 3, 2023) (identifying final non-
FTA authorizations sourced from the lower-48 states); see also 
Alaska LNG Project LLC, DOE/FE Order No. 3643-A, Docket No. 14-96-
LNG, Final Opinion and Order Granting Long-Term Authorization to 
Export Liquefied Natural Gas to Non-Free Trade Agreement Nations 
(Aug. 20, 2020), reh'g granted in part, DOE/FE Order No. 3643-B 
(Apr. 15, 2021), order aff'd, DOE/FECM Order No. 3643-C (Apr. 13, 
2023).
    \17\ See Freeport LNG Expansion, L.P., et al., DOE/FECM Order 
No. 4961, at 72; see also Alaska LNG Project LLC, DOE/FE Order No. 
3643-A, at 5, 40. Following issuance of Freeport LNG Expansion, 
L.P., et al., DOE/FECM Order No. 4961, DOE vacated one long-term 
non-FTA authorization at the request of the authorization holder, 
Eagle LNG Partners Jacksonville II LLC (0.01 Bcf/d). See infra note 
19.
    \18\ See Freeport LNG Expansion, L.P., et al., DOE/FECM Order 
No. 4961, at 72-76; see also Vista Pacifico LNG, DOE/FECM Order No. 
4929, at 7.
    \19\ To date, DOE has vacated nine long-term authorizations to 
export LNG to non-FTA countries (none over the objection of the 
authorization holder) in the following proceedings: Eagle LNG 
Partners Jacksonville II LLC, Docket No. 17-79-LNG (Mar. 12, 2023); 
Bear Head Energy Inc. and Bear Head LNG (USA), LLC, Docket No. 15-
33-LNG (Jan. 20, 2023); Jordan Cove Energy Project L.P., Docket No. 
12-32-LNG (Apr. 22, 2022); Air Flow N. Am. Corp., Docket No. 14-206-
LNG (Dec. 30, 2021); Emera CNG, LLC, Docket No. 13-157-CNG (Oct. 20, 
2021); Annova LNG Common Infrastructure, LLC, Docket No. 19-34-LNG 
(Apr. 23, 2021); Floridian Natural Gas Storage Co., LLC, Docket No. 
15-38-LNG (Oct. 22, 2020); Carib Energy (USA) LLC, Docket No. 11-
141-LNG (Nov. 17, 2020); Flint Hills Res., LP, Docket No. 15-168-LNG 
(Feb. 5, 2019).
    \20\ See 10 CFR 590.102(p); 10 CFR 590.208(a); see supra note 4.
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    Of the 49.83 Bcf/d in approved non-FTA export volumes as of today 
(sourced from both the lower-48 states and Alaska), the cumulative 
total of U.S. and Mexico LNG export capacity that is operating or under 
construction across 11 mid- or large-scale export projects is 24.19 
Bcf/d of natural gas.\21\ The remaining 25.64 Bcf/d in approved non-FTA 
export volumes represent possible future export capacity from numerous 
other proposed LNG export projects, but these proposed projects have 
not yet progressed to the construction phase. Some of these projects 
received approval for non-FTA exports as far back as 2016.\22\
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    \21\ This 24.19 Bcf/d volume representing export capacity 
approved to non-FTA countries currently operating or under 
construction is comprised of:
    (i) 23.75 Bcf/d of non-FTA volumes under construction or 
operating in the United States at the end of March 2023 (see U.S. 
Energy Info. Admin., U.S. Liquefaction Capacity (Apr. 17, 2023), 
https://www.eia.gov/naturalgas/U.S.liquefactioncapacity.xlsx, 
calculated by adding Column N in ``Existing & Under Construction'' 
worksheet); and
    (ii) 0.44 Bcf/d in U.S.-sourced natural gas to be re-exported in 
the form of LNG by ECA Liquefaction, S. de R.L. de C.V. from the ECA 
Mid-Scale Project Phase 1, under construction in Mexico, to non-FTA 
countries (see Docket No. 18-144-LNG).
    \22\ See, e.g., Pieridae Energy (USA) Ltd., DOE/FE Order No. 
3768, Docket No. 14-179-LNG, Opinion and Order Granting Long-Term, 
Multi-Contract Authorization to Export U.S.-Sourced Natural Gas 
Natural Gas by Pipeline to Canada for Liquefaction and Re-Export in 
the Form of Liquefied Natural Gas to Non-Free Trade Agreement 
Countries (Feb. 5, 2016), discussed infra.
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B. Seven-Year Commencement Deadline for Exports to Non-FTA Countries

    Both the NGA and DOE's regulations provide DOE with broad authority 
to attach conditions to non-FTA export authorizations. NGA section 3(a) 
states that DOE may grant an application for a non-FTA export 
authorization ``upon such terms and conditions as the [Secretary] may 
find necessary or appropriate.'' \23\ Similarly, under 10 CFR 590.404, 
DOE may ``issue a final opinion and order and attach such conditions 
thereto as may be required by the public interest after completion and 
review of the final record.'' \24\ Neither NGA section 3(a) nor DOE's 
regulations prescribe a specific time period for a non-FTA 
authorization. For this reason, DOE has determined that it has 
discretion under 10 CFR 590.404 to impose suitable terms.
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    \23\ 15 U.S.C. 717b(a).
    \24\ 10 CFR 590.404.
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    For long-term orders authorizing the export of U.S.-sourced LNG to 
non-FTA countries, DOE provides each authorization holder with a period 
of seven years to commence export operations, set from the date the 
order is issued.\25\ The end of this seven-year period is often 
referred to as the ``commencement deadline,'' after which point the 
non-FTA authorization expires. If the authorization holder commences 
exports of LNG from its facility within this seven-year period, its 
export term (whether for 20 years or for a term extending through 
December 31,

[[Page 25275]]

2050) \26\ begins upon the date of first commercial export.\27\
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    \25\ The non-FTA exceptions are: (i) the Alaska LNG non-FTA 
authorization, which has a 12-year commencement deadline due to the 
unique aspects of that proposed project, see Alaska LNG Project LLC, 
DOE/FE Order No. 3643-A, at 41 (Ordering Para. D), and (ii) orders 
authorizing small-scale exports of natural gas, which have a two-
year commencement deadline (see supra note 4).
    \26\ See U.S. Dep't of Energy, Extending Natural Gas Export 
Authorizations to Non-Free Trade Agreement Countries Through the 
Year 2050; Notice of Final Policy Statement and Response to 
Comments, 85 FR 52237 (Aug. 25, 2020).
    \27\ See, e.g., Magnolia LNG LLC, DOE/FECM Order No. 3909-C, 
Docket No. 13-132-LNG, Order Amending Long-Term Authorization to 
Export Liquefied Natural Gas to Non-Free Trade Agreement Nations, at 
67-68 (Apr. 27, 2022) (Ordering Paras. A, D).
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    This practice began in 2011, when DOE issued its first conditional 
long-term export authorization involving domestically produced LNG to 
Sabine Pass Liquefaction, LLC (Sabine Pass).\28\ In its application, 
Sabine Pass had requested ``that its authorization commence on the 
earlier of the date of first export or five years from the date of the 
issuance of the authorization.'' \29\ After reviewing the record 
evidence, DOE determined that a period of seven years for Sabine Pass 
to commence its non-FTA exports was consistent with the public 
interest.\30\
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    \28\ See Sabine Pass Liquefaction, LLC, DOE/FE Order No. 2961, 
Docket No. 10-111-LNG, Opinion and Order Conditionally Granting 
Long-Term Authorization to Export Liquefied Natural Gas from Sabine 
Pass LNG Terminal to Non-Free Trade Agreement Nations (May 20, 
2011). DOE incorporated this seven-year commencement period in 
Sabine Pass's final order (DOE/FE Order No. 2961-A), issued on 
August 7, 2012.
    \29\ Sabine Pass Liquefaction, LLC, DOE/FE Order No. 2961, at 2.
    \30\ Id. at 33, 43 (Ordering Para. C).
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    In reaching this conclusion, DOE first explained that the purpose 
of the commencement deadline ``is to ensure that other entities that 
may seek similar authorizations are not frustrated in their efforts to 
obtain those authorizations by authorization holders that are not 
engaged in actual export operations.'' \31\ Next, DOE stated that ``a 
seven-year operations commencement date has been selected as a 
reasonable accommodation given [Sabine Pass's] representation that it 
plans to be ready to commence operations by 2015-2016.'' \32\ DOE 
reasoned that a seven-year commencement period ``provides approximately 
two years beyond [Sabine Pass's] current planned commencement date 
before the condition must be met,'' and thus ``will allow for time lost 
due to unplanned delays in licensing and construction of the planned 
liquefaction facilities.'' \33\
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    \31\ Id. at 33.
    \32\ Id.
    \33\ Id.
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    Since 2011, DOE has continued to provide a seven-year period for 
authorization holders to commence exports to non-FTA countries. This 
seven-year commencement deadline is set forth in both the Terms and 
Conditions and the Ordering Paragraphs of each long-term non-FTA 
order.\34\ Specifically, in the Terms and Conditions, DOE continues to 
cite the need for the seven-year commencement deadline ``to ensure that 
other entities that may seek similar authorizations are not frustrated 
in their efforts to obtain those authorizations by authorization 
holders that are not engaged in actual export [or re-export] 
operations.'' \35\ In the relevant Ordering Paragraph of each non-FTA 
order, DOE states that the authorization holder ``must commence export 
[or re-export] operations using the planned liquefaction facilities no 
later than seven years from the date of issuance of [the Order].'' \36\
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    \34\ If an authorization holder has already commenced export 
operations from its facility and is requesting to export additional 
volumes, this term is unnecessary and is therefore omitted from 
successive orders. See, e.g., Sabine Pass, DOE/FECM Order No. 4800, 
at 68-75.
    \35\ E.g., Corpus Christi Liquefaction Stage III, LLC, DOE/FE 
Order No. 4490, Docket No. 18-78-LNG, Opinion and Order Granting 
Long-Term Authorization to Export Liquefied Natural Gas to Non-Free 
Trade Agreement Nations, at 49 (Term and Condition B) (Feb. 10, 
2020); see also Vista Pacifico LNG, S.A.P.I. de C.V., DOE/FECM Order 
No. 4929, at 73-74 (Term and Condition B) (Dec. 20, 2022).
    \36\ Magnolia LNG LLC, DOE/FECM Order No. 3909-C, at 68 
(Ordering Para. C). The exact phrasing of this Ordering Paragraph 
may vary among orders, but the seven-year commencement deadline is 
consistent.
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    To date, all seven large-scale export facilities using U.S.-sourced 
natural gas that have commenced exports of LNG have done so before the 
seven-year commencement deadline established in the authorization 
holders' corresponding non-FTA authorization(s).\37\
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    \37\ The authorization holders that have commenced exports 
before their commencement deadline are: (i) Sabine Pass; (ii) Cove 
Point LNG, LP; (iii) Southern LNG Company, L.L.C.; (iv) Cheniere 
Marketing, LLC and Corpus Christi Liquefaction, LLC (joint 
authorization holders); (v) Cameron LNG, LLC; (vi) Freeport LNG 
Expansion, L.P., FLNG Liquefaction, LLC, FLNG Liquefaction 2, LLC, 
and FLNG Liquefaction 3, LLC (joint authorization holders); and 
(vii) Venture Global Calcasieu Pass, LLC. See supra note 21.
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C. Applications To Extend the Export Commencement Deadline

    Several authorization holders have filed applications (or requests) 
asking DOE to extend their original seven-year commencement deadline to 
a later date, based on the circumstances associated with their proposed 
LNG facility.
1. Orders Extending the Export Commencement Deadline Granted in 2020
    In 2020, DOE granted extensions of the commencement deadline in six 
non-FTA orders (held by four different authorization holders), as 
follows:
     Golden Pass LNG Terminal LLC, DOE/FE Order No. 3978-C, 
Docket No. 12-156-LNG, Order Granting Request for Extension of Export 
Commencement Deadlines (Mar. 24, 2020) (extending commencement deadline 
from April 25, 2024, to September 30, 2025);
     Lake Charles LNG Export Company, LLC, DOE/FE Order Nos. 
3868-A and 4010-A, Docket Nos. 13-04-LNG and 16-109-LNG, Order Granting 
Application for Extension of Commencement Deadlines (Oct. 6, 2020) 
(extending commencement deadlines in two non-FTA orders from July 29, 
2023 or June 29, 2024, respectively, to December 16, 2025);
     Lake Charles Exports, LLC, DOE/FE Order Nos. 3324-B and 
4011-A, Docket Nos. 11-59-LNG and 16-110-LNG, Order Granting 
Application to Amend Long-Term Authorizations (Oct. 6, 2020) (extending 
commencement deadlines in two non-FTA orders from July 29, 2023 or June 
29, 2024, respectively, to December 16, 2025); and
     Cameron LNG, LLC, DOE/FE Order No. 3846-A, Docket No. 15-
90-LNG, Order Granting Application for Extension of Commencement 
Deadlines (Nov. 2, 2020) (extending commencement deadline from July 15, 
2023, to May 5, 2026).
    Although DOE evaluated these authorization holders' extension 
applications on a case-by-case basis, DOE considered the same general 
factors in each proceeding.
    First, DOE considered whether FERC--the agency approving the 
siting, construction, and operation of the LNG export facility in each 
proceeding--had approved an extension of its own ``construction and in-
service deadline'' for the proposed facility.\38\ In each of these 
proceedings, DOE found that FERC had already approved an extension for 
the facility's original construction and in-service deadline.
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    \38\ FERC's authorizations for proposed LNG export facilities 
under NGA section 3(e), 15 U.S.C. 717b(e), include a deadline for 
the authorization holder to complete construction of the facility 
and to make it available for service--typically five years from the 
date of the order, which may be extended for good cause. See, e.g., 
Rio Grande LNG, LLC, Order Granting Extension of Time Request, 181 
FERC ] 61032, P 10 (Oct. 14, 2022).
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    Second, DOE considered the project-specific facts presented in the 
extension application, including the authorization holder's progress in 
constructing the proposed export facility,\39\ the

[[Page 25276]]

additional time necessary for the authorization holder to commence 
exports, and any unique delays and challenges faced by the 
authorization holder.\40\
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    \39\ Among the proceedings identified, progress on the proposed 
facility noted by DOE has included, for example, obtaining all 
required federal, state, and local authorizations; conducting or 
completing front-end engineering and design; awarding engineering, 
procurement, and construction contracts for the facility; and 
receiving authorization from FERC to proceed with site clearance.
    \40\ For example, the Lake Charles entities stated that they 
experienced an unforeseen construction delay resulting from a 
commercial merger in their corporate ownership. See, e.g., Lake 
Charles LNG Export Co., LLC, DOE/FE Order Nos. 3868-A and 4010-A, at 
5.
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    Finally, DOE published each application for a commencement 
extension in the Federal Register and provided the public with 15 days 
to submit protests, motions to intervene, and comments in response to 
the application.\41\ As part of DOE's final order on each application, 
DOE considered any responses received during this comment period.\42\
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    \41\ See, e.g., U.S. Dep't of Energy, Cameron LNG, LLC; Request 
for Extension of Commencement Deadline for Non-Free Trade Agreement 
Authorization, 85 FR 20993 (Apr. 15, 2020).
    \42\ See, e.g., Golden Pass LNG Terminal LLC, DOE/FE Order No. 
3978-C, at 4, 8-10.
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    In each of these proceedings, DOE found good cause to grant the 
application for the commencement extension and concluded that extending 
the export commencement deadline would not alter DOE's public interest 
determination in granting the original non-FTA authorization.\43\
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    \43\ Id. at 8-10.
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2. Applications for Commencement Extensions Submitted Since 2022
    DOE has continued to receive new applications for commencement 
extensions. In 2022, Lake Charles LNG Export Company, LLC and Lake 
Charles Exports, LLC filed an application requesting their second 
commencement extension across a total of four non-FTA orders,\44\ and 
Port Arthur LNG, LLC filed an application requesting its first 
commencement extension.\45\ Most recently, in 2023, Pieridae Energy 
(USA) Ltd.\46\ and Magnolia LNG, LLC \47\ have each filed an 
application requesting their first commencement extension.\48\
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    \44\ See Docket Nos. 11-59-LNG, 16-110-LNG, 13-04-LNG, and 16-
109-LNG.
    \45\ See Docket No. 15-96-LNG.
    \46\ See Pieridae Energy (USA) Ltd., Request for Extension for 
Long-Term, Multi-Contract Authorization to Export U.S. Sourced 
Natural Gas by Pipeline to Canada for Liquefaction and Re-Export in 
the Form of Liquefied Natural Gas, Docket No. 14-179-LNG (Feb. 2, 
2023). Pieridae filed this extension application three days before 
the export commencement deadline set forth in its non-FTA order 
(DOE/FE Order No. 3768), which was February 5, 2023. Therefore, 
although Pieridae's non-FTA order has technically expired, its 
extension application remains under review.
    \47\ See Magnolia LNG, LLC, Request for Limited Extension to 
Start Date of Term of Authorization, Docket No. 13-132-LNG (Mar. 20, 
2023).
    \48\ See infra Sec.  III.D.
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III. Policy Statement

A. Basis for Change in DOE's Treatment of Applications for Commencement 
Extensions

    When DOE originally adopted a seven-year export commencement 
deadline for Sabine Pass's non-FTA authorization in 2011, it did so 
based upon an explicit recognition that an authorization holder would 
need time to construct its proposed facility before commencing exports 
of LNG--and that this time period must be sufficiently long to allow 
for ``unplanned delays in the licensing and construction'' of the 
facility.\49\ In the following 12 years, DOE's conclusion that seven 
years was an adequate and reasonable amount of time for authorization 
holders to commence exports after initial authorization, and the 
reasoning underlying that conclusion, have been validated. All 
authorization holders currently exporting from the seven large-scale 
export facilities in the United States commenced exports within their 
original seven-year commencement period--some while facing the 
particularly challenging delays and uncertainties associated with the 
COVID-19 pandemic.\50\ Most recently, Venture Global Calcasieu Pass, 
LLC (Calcasieu Pass) constructed and began operating its LNG export 
facility in Cameron Parish, Louisiana, within three years from the date 
it received its non-FTA authorization from DOE,\51\ demonstrating that 
it is possible for major LNG projects to be placed in-service well 
within the seven-year commencement period, even during the COVID-19 
pandemic.
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    \49\ Sabine Pass, DOE/FECM Order No. 4800, at 33; see supra 
Sec.  II.B.
    \50\ See supra note 37.
    \51\ Calcasieu Pass received its non-FTA export authorization, 
DOE/FE Order No. 4346, on March 5, 2019. On March 1, 2022, Calcasieu 
Pass loaded its first cargo of LNG at the newly constructed Venture 
Global Calcasieu Pass Project, and it has exported dozens of cargoes 
to date. See Venture Global Calcasieu Pass, LLC, Semi-Annual Status 
Report, Dockets No. 13-69-LNG, et al., at 2 (Mar. 31, 2023), https://www.energy.gov/sites/default/files/2023-04/VG%20Calcasieu%20Pass_April%202023%20DOE%20Progress%20Report%20%28final%29.pdf.
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    Nonetheless, not all authorization holders have successfully moved 
forward with their projects and commenced exports within the seven-year 
deadline. Some have asked DOE to vacate their authorization prior to 
the commencement deadline,\52\ whereas others (as discussed herein) 
have filed applications requesting more time.\53\ Indeed, as part of 
its analysis in non-FTA orders, DOE has long noted the ``continuing 
uncertainty that all or even most of the proposed LNG export projects 
will ever be realized because of the time, difficulty, and expense of 
commercializing, financing, and constructing LNG export terminals, as 
well as the uncertainties and competition inherent in the global market 
for LNG.'' \54\ Yet, DOE anticipates that authorization holders will 
continue to file applications requesting a commencement extension in an 
effort to keep their non-FTA authorization active, even if the 
likelihood of completing construction and commencing exports from their 
facility is uncertain. DOE notes, for example, that by the end of 2026, 
the export commencement deadline in 14 long-term non-FTA authorizations 
will expire.\55\
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    \52\ See supra note 19.
    \53\ DOE notes that, of the authorization holders that have 
applied for and received an extension to their export commencement 
deadline (see supra Sec.  II.C.1), none have yet commenced export 
operations.
    \54\ Freeport LNG Expansion, L.P., et al., DOE/FECM Order No. 
4961, at 71.
    \55\ These 14 authorizations are: Magnolia LNG, LLC (DOE/FECM 
Order No. 3909-C); Delfin LNG, LLC (DOE/FE Order No. 4028-C); Golden 
Pass LNG Terminal LLC (DOE/FECM Order No. 3978-E); Lake Charles 
Exports, LLC (DOE/FE Order Nos. 3324-B, 4011-A); Lake Charles LNG 
Export Co., LLC (DOE/FE Order Nos. 3868-A, 4010-A); Mexico Pacific 
Ltd. LLC (DOE/FECM Order No. 4312-A); ECA Liquefaction, S. de R.L. 
de C.V. (DOE/FE Order No. 4364-B); Energ[iacute]a Costa Azul, S. de 
R.L. de C.V. (DOE/FECM Order No. 4365-B); Cameron LNG, LLC (DOE/FE 
Order No. 3846-B); Port Arthur LNG, LLC (DOE/FE Order No. 4372-A); 
Driftwood LNG LLC (DOE/FE Order No. 4373-A); Freeport LNG Expansion, 
L.P., et al. (DOE/FE Order No. 4374-A); Gulf LNG Liquefaction Co., 
LLC (DOE/FE Order No. 4410-A); and Venture Global Plaquemines LNG, 
LLC (DOE/FE Order No. 4446-A).
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    Further, in monitoring market developments as the impact of 
successive authorizations of LNG exports unfolds, DOE has recognized 
new challenges involving the growing volume of approved non-FTA exports 
associated with facilities that are not currently operating or under 
construction. Over time, as more authorization holders are authorized 
to export or re-export U.S.-sourced LNG to non-FTA countries--but are 
not engaged in actual export or re-export operations--this approval 
gap, or ``authorization overhang,'' has widened, with detrimental 
effects.\56\
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    \56\ See supra II.A.
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    For example, in October 2019, DOE had issued final orders 
authorizing exports of LNG to non-FTA countries totaling 38.06 Bcf/d of 
natural gas, with 15.54 Bcf/d of export capacity then operating or 
under construction--a difference of 22.52 Bcf/d in approved exports. As 
of today, however, that difference has grown to 25.64 Bcf/d--with 
approved non-FTA exports from

[[Page 25277]]

the United States totaling 49.83 Bcf/d,\57\ and 24.19 Bcf/d of export 
capacity operating or under construction.\58\ This overhang of 
authorized exports--25.64 Bcf/d of natural gas--is even larger than 
today's ``proven'' U.S. LNG export market at 24.19 Bcf/d. This overhang 
obscures an accurate picture of investment-backed commitments involving 
U.S. LNG.
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    \57\ This total represents 47.28 Bcf/d in approved exports of 
LNG sourced from the lower-48 states and 2.55 Bcf/d sourced from 
Alaska. See supra II.A.
    \58\ See supra note 21.
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    When DOE's cumulative volume of approved non-FTA exports is greater 
than the physical capacity to export these volumes, there is no 
assurance of when the full export capacity will be available, or 
whether it will become available at all. This uncertainty has become 
increasingly disruptive to DOE's planning, economic forecasting, and 
market analysis of the U.S. LNG export market as reviews of non-FTA 
export applications continue. Since 2019, DOE has received eight new 
applications requesting long-term authority to export LNG to non-FTA 
countries in a combined volume equivalent to 9.8 Bcf/yr of natural 
gas.\59\ With the non-FTA volumes already approved and these 
applications for new non-FTA exports under review, it is important for 
DOE to have a clear picture of the U.S. LNG export market, including 
what amount of export capacity may be commercialized within seven 
years. Further, DOE has become aware of the challenges this continuing 
uncertainty presents to participants in the U.S. and global LNG export 
markets, including U.S. allies and trading partners. The authorization 
overhang also may serve to discourage or delay potential new entrants 
to the U.S. export market--including those that seek to utilize newer 
technology and to adopt better environmental practices.
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    \59\ These eight applications under review are: Commonwealth 
LNG, LLC (1.21 Bcf/d) (Docket No. 19-134-LNG); Port Arthur LNG Phase 
II, LLC (1.91 Bcf/d) (Docket No. 20-23-LNG); Venture Global CP2 LNG, 
LLC (3.96 Bcf/d) (Docket No. 21-131-LNG); New Fortress Energy 
Louisiana FLNG LLC (0.40 Bcf/d) (Docket No. 22-39-LNG); NFE Altamira 
FLNG, S. de R.L. de C.V. (0.40 Bcf/d) (Docket No. 22-110-LNG); 
Mexico Pacific Limited LLC (0.80 Bcf/d) (Docket No. 22-167-LNG); 
Gulfstream LNG Development, LLC (0.65 Bcf/d) (Docket No. 23-34-LNG); 
Corpus Christi Liquefaction, LLC, CCL Midscale 8-9, LLC, and 
Cheniere Marketing, LLC (0.47 Bcf/d) (Docket No. 23-46-LNG); see 
also U.S. Dep't of Energy, Office of Fossil Energy and Carbon 
Management, Long Term Applications Received by DOE to Export 
Domestically Produced LNG, CNG, CGL from the Lower-48 States (as of 
Mar. 14, 2023), https://www.energy.gov/sites/default/files/2023-03/Summary%20of%20LNG%20Export%20Applications%203-14-23_0.pdf. Not 
included are two applications for an amended non-FTA volume which, 
if granted, would not receive a new seven-year export commencement 
deadline.
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    Finally, DOE notes that its public interest analysis supporting 
each non-FTA authorization under NGA section 3(a) may become stale 
after seven years, as the natural gas market and supporting analyses 
continue to evolve.\60\ In the normal course, the NGA does not require 
DOE to affirmatively reevaluate whether exports remain in the public 
interest during the term of an existing export authorization. However, 
new DOE decisions regarding non-FTA exports, such as actions in 
response to the pending expiration of an authorization holder's export 
commencement deadline, should be made on the basis of the latest market 
information and analytical approaches available at the time of DOE's 
decision.
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    \60\ See supra II.A.
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B. Policy and Implementation

    For the reasons set forth herein, DOE reaffirms the seven-year 
export commencement deadline set forth in long-term authorizations to 
export domestically produced LNG to non-FTA countries.\61\ The timely 
commencement of exports from all seven large-scale export facilities 
currently operating in the United States demonstrates that seven years 
is a reasonable, achievable period of time for an authorization holder 
both to construct its facility and to commence exports of LNG.\62\
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    \61\ As noted, this Policy Statement does not apply to orders 
authorizing small-scale exports of natural gas (see supra note 4); 
see also supra note 1.
    \62\ See supra note 37.
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    Accordingly, DOE is giving notice that, in general, it intends to 
allow non-FTA authorizations to expire at the end of the seven-year 
commencement period set forth in each authorization. As such, DOE will 
no longer consider applications for extensions to export commencement 
deadlines, unless an authorization holder submits an application prior 
to its commencement deadline demonstrating that:

    (i) The authorization holder (or its affiliate) has physically 
commenced construction on the associated export facility before the 
request for additional time to commence exports is made; and
    (ii) The authorization holder's inability to comply with its 
export commencement deadline is the result of extenuating 
circumstances outside of the authorization holder's control, 
including but not limited to acts of God.\63\
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    \63\ For purposes of this Policy Statement, an ``act of God'' 
means a severe natural event outside of human control, such as a 
hurricane, flash flood, or other natural disaster.

    An authorization holder seeking to apply for an extension under 
this Policy Statement should submit its application to DOE at least 90 
days prior to the commencement deadline in its non-FTA order.\64\ This 
will ensure that DOE has sufficient time to provide notice of the 
extension application in the Federal Register for a 30-day public 
comment period, and to evaluate the application and any public filings 
received in response to the notice of application prior to the 
expiration of the non-FTA order.\65\ In the extension application, the 
authorization holder should provide evidence, including any supporting 
documentation, to meet both parts of the required demonstration.\66\
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    \64\ 10 CFR 590.201(b) (``Applications shall be filed at least 
ninety (90) days in advance of the proposed import or export or 
other requested action, unless a later date is permitted for good 
cause shown.'').
    \65\ See supra Sec.  II.C.1; 10 CFR 590.205 (Notice of 
applications).
    \66\ An application for an export commencement extension must 
also meet other requirements set forth in DOE's regulations 
governing the export of natural gas, 10 CFR part 590.
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    Evidence that an authorization holder (or its affiliate) has 
physically commenced construction on its export facility may include, 
for example: (i) a copy of its most recent status report or other 
update submitted to FERC or MARAD, if available (or, for 
extraterritorial projects, the comparable federal regulatory agency), 
describing the current construction status of the export facility; \67\ 
(ii) a verified statement of the construction costs incurred to date, 
as compared to the total projected costs for construction; and/or (iii) 
documentation showing that the contractor has met one or more 
completion targets under the relevant engineering, procurement, and 
construction agreement.
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    \67\ DOE notes that FERC's authorizations of LNG terminals under 
NGA section 3(e) require the authorization holder to provide status 
reports to FERC on a monthly basis until all construction activities 
are complete. These status reports must include the ``current 
construction status of the project and work planned for the 
following reporting period.'' See, e.g., Commonwealth LNG, LLC, 
Order Granting Authorization Under Section 3 of the Natural Gas Act, 
181 FERC ] 61,143, Appendix A (Enviro. Condition #8) (Nov. 17, 
2022), www.ferc.gov/media/c-2-cp19-502-000.
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    Although the two-part demonstration described above is required for 
DOE to consider an application for a commencement extension, it does 
not guarantee that DOE will approve the request. Following the 30-day 
comment period, DOE will issue an order evaluating the application, and 
any responses received in response to the notice of application, under 
the good cause standard provided by NGA section 3(a), with appropriate

[[Page 25278]]

consideration of the public interest.\68\ Further, DOE will consider 
extending an export commencement deadline only for such time as DOE 
deems necessary for the authorization holder to commence exports, based 
on the extenuating circumstances identified in the application.
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    \68\ See, e.g., Cameron LNG, LLC, DOE/FE Order No. 3846-A, at 6 
(evaluating extension application under NGA section 3(a) to 
determine whether there is good cause shown for extending the 
commencement deadline, and whether such extension would alter DOE's 
public interest determination in granting the original non-FTA 
export authorization).
---------------------------------------------------------------------------

    If an authorization holder reaches the end of the seven-year export 
commencement period set forth in its non-FTA authorization, and cannot 
make such a demonstration, the non-FTA authorization will expire on the 
deadline set forth in the order.\69\ DOE will consider any new export 
application under NGA section 3(a) without prejudice, which would be 
evaluated pursuant to the policies and analytical tools in use at the 
time of the new application.
---------------------------------------------------------------------------

    \69\ Because this Policy Statement does not apply to FTA export 
authorizations issued under NGA section 3(c) (see supra note 4), any 
related FTA authorization would not be affected by the expiration of 
a non-FTA authorization.
---------------------------------------------------------------------------

C. Policy Objectives

    Over time, this policy should reduce the authorization overhang, as 
authorizations expire on their commencement deadline (unless an 
authorization holder makes the demonstration set forth above and DOE 
determines there is good cause to grant the commencement extension). As 
a result, the total volume of exports approved under DOE's non-FTA 
orders should become more aligned with the export capacity under 
construction or operating using U.S.-sourced LNG. This, in turn, will 
allow DOE to better assess whether any new non-FTA applications are in 
the public interest; provide more certainty to the U.S. and global LNG 
export markets; and ensure that DOE is making decisions utilizing the 
latest market information and analytical tools available. It should 
also encourage authorization holders to develop their export facilities 
in a timely manner, without excessive delays. Based on its analysis of 
the U.S. natural gas export market, and as discussed herein, DOE 
believes these changes are in the public interest.

D. Applicability of Policy Statement

    In order to provide industry and the public with fair notice of the 
change in DOE policy described herein, this Policy Statement will apply 
to all existing and future long-term non-FTA authorizations, except for 
those authorizations for which an application requesting an export 
commencement extension was filed prior to issuance of this Policy 
Statement on April 21, 2023. DOE will review and act on those 
applications filed before April 21, 2023, at the appropriate time, 
using the case-by-case factual review undertaken by DOE prior to 
issuance of this Policy Statement.
    Specifically, concurrently with this Policy Statement, DOE is 
issuing final orders on commencement extension applications filed by 
Lake Charles LNG Export Company, LLC; Lake Charles Exports, LLC; and 
Port Arthur LNG, LLC in their respective dockets. Because these 
applications were filed in 2022, DOE is not taking action on these 
applications under this Policy Statement, but rather under DOE's prior 
practice based on the record in each commencement extension 
proceeding.\70\
---------------------------------------------------------------------------

    \70\ See supra at II.C.2.
---------------------------------------------------------------------------

    Likewise, because the commencement extension applications filed 
recently by Pieridae Energy (USA) Ltd. and Magnolia LNG, LLC (on 
February 2, 2023, and March 20, 2023, respectively) were filed before 
issuance of this Policy Statement, they will not be reviewed under this 
Policy Statement. At the appropriate time after the public comment 
period for each of these applications is complete, DOE will issue an 
order taking action on each application under DOE's prior practice 
based on the record in each commencement extension proceeding.\71\
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    \71\ See supra notes 46-47; see also Pieridae Energy (USA) Ltd., 
Request for Extension for Long-Term Authorization to Export 
Liquefied Natural Gas, 88 FR 18530 (Mar. 29, 2023) (establishing 30-
day public comment period for Pieridae's application requesting an 
extension to its commencement deadline); Magnolia LNG, LLC, Request 
for Limited Extension to Start Date of Term of Authorization, 88 FR 
23020 (Apr. 14, 2023) (establishing 30-day public comment period for 
Magnolia's application requesting an extension to its commencement 
deadline).
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IV. Administrative Benefits

    In this Policy Statement, DOE is not proposing any new requirements 
for applicants or authorization holders under 10 CFR part 590. Rather, 
DOE's intent is to provide greater transparency to authorization 
holders and participants in the U.S. natural gas export market, and to 
minimize administrative burdens.

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this policy 
statement.

Signing Authority

    This document of the Department of Energy was signed on April 21, 
2023, by Brad Crabtree, Assistant Secretary, Office of Fossil Energy 
and Carbon Management, pursuant to delegated authority from the 
Secretary of Energy. That document with the original signature and date 
is maintained by DOE. For administrative purposes only, and in 
compliance with requirements of the Office of the Federal Register, the 
undersigned DOE Federal Register Liaison Officer has been authorized to 
sign and submit the document in electronic format for publication, as 
an official document of the Department of Energy. This administrative 
process in no way alters the legal effect of this document upon 
publication in the Federal Register.

    Signed in Washington, DC, on April 21, 2023.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2023-08805 Filed 4-25-23; 8:45 am]
BILLING CODE 6450-01-P