In Depth: FERC’s Recent Notice of Proposed Rulemaking

On May 18, 2006, the Federal Energy Regulatory Commission (FERC) issued a Notice of Proposed Rulemaking (NOPR) intended to implement certain authority granted by the Energy Policy Act of 2005 (EPAct 2005).  In the NOPR, FERC proposes procedures  to coordinate the processing of necessary authorizations under federal law for Section 3 and Section 7 natural gas projects, and to assemble a complete consolidated record of all decisions and actions taken regarding those authorizations.

To facilitate concurrent review of a proposed project by federal and state agencies, FERC would require that each project sponsor submit all requests for necessary federal authorizations no later than the date the sponsor files its project application with FERC.  Beyond this minimum requirement, FERC suggests that the project sponsor submit its requests for federal authorization in advance of filing with FERC.  FERC further proposes that when an agency receives an authorization request,  that agency electronically submit to FERC, within 30 days of receiving the request, its assessment of the completeness of the request, any additional information and/or studies it needs to evaluate the request, and the expected date of the agency’s decision.

FERC or the Director of the Office of Energy Products may set a schedule for the agencies to respond to requests for authorizations.  If FERC or the director do not exercise this authority, a default deadline will require the agencies to respond no more than 90 days after FERC issues the final environmental document on the proposed project (or the final order, if an environmental assessment is not issued).  FERC notes that it cannot alter the schedules established under federal law for other agencies.

To fulfill EPAct 2005’s mandate that FERC maintain the complete consolidated record on each gas project application, FERC would require that each agency electronically file with FERC a copy of its decisions and/or actions taken with respect to authorizations; this filing would be required to be made within three days of the effective date of each final decision or action. Agencies also would be required under the rule to file an index identifying all documents and materials relevant to its final decision or action on each request for an authorization.

The NOPR is available in the FERC e-library.  Comments on the proposed rule will be due sixty days after the NOPR is published in the Federal Register.

For more information on this topic please contact David Wochner or Michael Brooks.