[Senate Report 110-178]
[From the U.S. Government Publishing Office]
Calendar No. 376
110th Congress Report
SENATE
1st Session 110-178
======================================================================
AMEND THE ALASKA NATURAL GAS PIPELINE ACT
_______
September 17, 2007.--Ordered to be printed
_______
Mr. Bingaman, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 1089]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 1089) to amend the Alaska Natural Gas
Pipeline Act to allow the Federal Coordinator for Alaska
Natural Gas Transportation Projects to hire employees more
efficiently, and for other purposes, having considered the
same, reports favorably thereon with an amendment and
recommends that the bill, as amended, do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. ADMINISTRATION.
Section 106 of the Alaska Natural Gas Pipeline Act (15 U.S.C. 720d)
is amended by adding at the end the following:
``(h) Administration.--
``(1) Personnel appointments.--
``(A) In general.--The Federal Coordinator may
appoint and terminate such personnel as the Federal
Coordinator determines to be appropriate.
``(B) Authority of federal coordinator.--Personnel
appointed by the Federal Coordinator under subparagraph
(A) shall be appointed without regard to the provisions
of title 5, United States Code, governing appointments
in the competitive service.
``(2) Compensation.--
``(A) In general.--Subject to subparagraph (B),
personnel appointed by the Federal Coordinator under
paragraph (1)(A) shall be paid without regard to the
provisions of chapter 51 and subchapter III of chapter
53 of title 5, United States Code (relating to
classification and General Schedule pay rates).
``(B) Maximum level of compensation.--The rate of pay
for personnel appointed by the Federal Coordinator
under paragraph (1)(A) shall not exceed the maximum
level of rate payable for level III of the Executive
Schedule.
``(C) Applicability of section 5941.--Section 5941 of
title 5, United States Code, shall apply to personnel
appointed by the Federal Coordinator under paragraph
(1)(A).
``(3) Temporary services.--
``(A) In general.--The Federal Coordinator may
procure temporary and intermittent services in
accordance with section 3109(b) of title 5, United
States Code.
``(B) Maximum level of compensation.--The level of
compensation of an individual employed on a temporary
or intermittent basis under subparagraph (A) shall not
exceed the maximum level of rate payable for level III
of the Executive Schedule.
``(4) Fees, charges, and commissions.--
``(A) In general.--The Federal Coordinator shall have
the authority to establish, change, and abolish
reasonable filing and service fees, charges, and
commissions, require deposits of payments, and provide
refunds as provided to the Secretary of the Interior in
section 304 of the Federal Land Policy and Management
Act of 1976 (43 U.S.C. 1734), except that the authority
shall be with respect to the duties of the Federal
Coordinator, as described in this Act.
``(B) Authority of secretary of the interior.--
Subparagraph (A) shall not affect the authority of the
Secretary of the Interior to establish, change, and
abolish reasonable filing and service fees, charges,
and commissions, require deposits of payments, and
provide refunds under section 304 of the Federal Land
Policy and Management Act of 1976 (43 U.S.C. 1734).
``(C) Use of funds.--The Federal Coordinator is
authorized to use, without further appropriation,
amounts collected under subparagraph (A) to carry out
this section.''.
SEC. 2. CLARIFICATION OF AUTHORITY.
Section 107(a) of the Alaska Natural Gas Pipeline Act (15 U.S.C.
720e(a)) is amended by striking paragraph (3) and inserting the
following:
``(3) the validity of any determination, permit, approval,
authorization, review, or other related action taken under any
provision of law relating to a gas transportation project
constructed and operated in accordance with section 103,
including--
``(A) subchapter II of chapter 5, and chapter 7, of
title 5, United States Code (commonly known as the
`Administrative Procedure Act');
``(B) the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.);
``(C) the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.);
``(D) the National Historic Preservation Act (16
U.S.C. 470 et seq.); and
``(E) the Alaska National Interest Lands Conservation
Act (16 U.S.C. 3101 et seq.).''.
Purpose
The purpose of S. 1089 is to amend the Alaska Natural Gas
Pipeline Act to allow the Federal Coordinator for Alaska
Natural Gas Transportation Projects to hire employees more
efficiently.
Background and Need
The Office of the Federal Coordinator for Alaska Natural
Gas Transportation Projects was authorized by the Alaska
Natural Gas Pipeline Act (15 U.S.C. 720a-720n). That Act
provides a process for approval by the Federal Energy
Regulatory Commission of a natural gas pipeline project that
would deliver natural gas from Alaska to markets in the lower
48 states. To encourage construction of the nearly 3,000 mile
pipeline, the Act includes provisions to reduce the risks of
regulatory delays or excessive litigation. These include
expedited and streamlined judicial review, required timelines
for FERC's issuance of the certificate of public convenience
and the establishment of the Office of the Federal Coordinator
(OFC).
The OFC is currently a small office staffed only by the
Federal Coordinator. Once a project has been selected the OFC
will need to hire qualified personnel very quickly. S. 1089
provides the OFC with the necessary flexibility to do so. The
Office of the Federal Coordinator is a temporary agency that
will not be fully staffed until an Alaska natural gas
transportation project is selected by the State of Alaska and
will terminate one year after the construction of a project. In
addition the field of qualified applicants available to the OFC
will be limited due to the specialized nature of the project.
For these reasons, it will be useful for the OFC to be able to
hire and terminate certain staff outside of the regular hiring
process.
S. 1089 also allows the Federal Coordinator to impose fees
for reviewing federal permits related to the pipeline project.
In addition, S. 1089 expands the expedited judicial review
provision to include suits filed under the Administrative
Procedures Act, the Endangered Species Act, the Historic
Preservation Act, and the Alaska National Interest Lands Act.
Legislative History
Senator Murkowski introduced S. 1089, for herself and
Senator Stevens, on April 11, 2007. The bill was referred to
the Committee on Energy and Natural Resources. On May 22, 2007,
the Subcommittee on Energy conducted a hearing on the measure.
The Committee on Energy and Natural Resources ordered the bill
reported with an amendment in the nature of a substitute on
July 25, 2007.
Committee Recommendation
The Committee on Energy and Natural Resources, in open
business session on July 25, 2007, by a voice vote of a quorum
present, recommends that the Senate pass S. 1089, if amended as
described herein.
Section-by-Section Analysis
Section 1 amends section 106 of the Alaska Natural Gas
Pipeline Act (15 U.S.C. 720d) by adding a new subsection (h).
Paragraph (1) of the new subsection (h) authorizes the
Federal Coordinator to hire and fire personnel as appropriate
and without regard to the provisions of title 5 of the United
States Code governing appointments in the competitive service.
Paragraph (2) of the new subsection (h) authorizes the
Federal Coordinator to pay personnel without regard to the
provisions of title 5 of the United States Code governing
classification and pay rates, but not in excess of level III of
the Executive Schedule. Subparagraph (C) of paragraph (2)
provides that the provisions of title 5 permitting cost of
living allowances will apply to OFC personnel.
Paragraph (3) of the new subsection (h) authorizes the
Federal Coordinator to obtain the temporary services of experts
or consultants pursuant to existing authority (5 U.S.C.
3109(b)), and limits the level of compensation paid to
temporary experts or consultants to the rate payable for level
III of the Executive Schedule.
Paragraph (4) of the new subsection (h) authorizes the
Federal Coordinator to establish reasonable filing and service
fees and charges and commissions and to require deposits of
payments and provide refunds, for its services related to
regulatory coordination, monitoring and oversight of the
project. This authority is parallel to authority provided to
the Secretary of the Interior under the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1734).
Section 2 amends section 170(a) of the Alaska Natural Gas
Pipeline Act (15 U.S.C. 720e(a) to give the United States Court
of Appeals for the District of Columbia Circuit original and
exclusive jurisdiction over additional cases and controversies.
Under the current section 170(a), the District of Columbia
circuit has original and exclusive jurisdiction over (1) the
validity of any final order or action under the Act, (2) the
constitutionality of any provision of the Act or decision made
or action taken thereunder, and (3) the adequacy of any
environmental impact statement relating to an action under the
Act. Section 2 extends the District of Columbia Circuit's
original and exclusive jurisdiction to actions taken under any
provision of law relating to an Alaska natural gas pipeline
project constructed and operated under the Act, including
actions brought under the Administrative Procedure Act, the
Endangered Species Act of 1973, the National Environmental
Policy Act of 1969, the National Historic Preservation Act, and
the Alaska National Interest Lands Conservation Act.
Cost and Budgetary Considerations
The following estimate of costs of this measure has been
provided by the Congressional Budget Office:
September 10, 2007.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1089, a bill to
amend the Alaska Natural Gas Pipeline Act to allow the Federal
Coordinator for Alaska Natural Gas Transportation Projects to
hire employees more efficiently, and for other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan
Carroll.
Sincerely,
Peter R. Orszag.
Enclosure.
S. 1089--A bill to amend the Alaska Natural Gas Pipeline Act to allow
the Federal Coordinator for Alaska Natural Gas Transportation
Projects to hire employees more efficiently, and for other
purposes
The Alaska Natural Gas Pipeline Act, enacted in 1976,
established a regulatory and administrative framework for
federal consideration of proposals to build a pipeline to
transport natural gas from northern Alaska to the continental
United States. Under that act, the Office of the Federal
Coordinator for Alaska Natural Gas Transportation Projects is
responsible for coordinating regulatory activities of several
federal agencies that have a role in administering such
proposals.
S. 1089 would amend current law to provide the coordinator
with greater flexibility in hiring staff and retaining services
from consultants and temporary workers. The bill also would
authorize the coordinator to establish fees that could be
spent, without further appropriation, for activities authorized
under current law.
Based on information from the office of the coordinator,
CBO estimates that enacting S. 1089 would increase offsetting
receipts (a credit against direct spending) from fees paid by
sponsors of proposed projects. The magnitude of such fees could
vary from less than $500,000 to a few million dollars annually
over several years, depending on the complexity of proposals
and the length of time required to administer them. CBO
expects, however, that any such fees would be mostly spent in
the same year they are collected; therefore, we estimate that
any net changes in direct spending under S. 1089 would be
negligible for each year. S. 1089 would not affect revenues.
S. 1089 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Megan Carroll.
This estimate was approved by Peter H. Fontaine, Assistant
Director for Budget Analysis.
Regulatory Impact Evaluation
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 1089.
The bill is not a regulatory measure in the sense of
imposing Government-established standards or significant
economic responsibilities on private individuals and
businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 1089, as ordered reported.
Executive Communications
The Office of the Federal Coordinator for Alaska Natural
Gas Transportation Projects provided the views of the
Administration on May 22, 2007. The testimony is attached.
Statement of Drue Pearce, Federal Coordinator Office of the Federal
Coordinator for Alaska Natural Gas Transportation Projects
Thank you Mr. Chairman and Committee Members for this
opportunity to speak before the Subcommittee. The Legislation
before the Committee has not gone through the Administration's
formal interagency policy review process, and therefore I will
be presenting the Administration's preliminary views on the
bill. However, there are several aspects of the bill that will
need technical correction or modification to conform to
policies that apply more generally elsewhere in the government
and we look forward to working with Committee to address those
concerns.
For over thirty years there have been sustained efforts to
bring Alaska natural gas to the marketplace both in Alaska and
the 48 contiguous states. This effort is more important than
ever to help assure adequate natural gas supplies for the
United States as the country develops a comprehensive energy
solution to take this great country through the century.
Technology and conservation will be an ever important part of
managing our energy needs. However, in the interim, certainty
of supply is critical. Marketizing the vast Alaskan North Slope
natural gas resources is an important step in assuring energy
demand is met.
Recently, the State of Alaska has taken an important step
in helping to secure a pipeline to transport natural gas to the
American people. The State legislature enacted Governor Palin's
legislation, the Alaska Gasline Inducement Act (AGIA),
providing inducements, including financial contributions, for
construction of the pipeline. This is an important complement
to the inducements provided by the United States in ANGPA and
previously in the Alaska Natural Gas Transportation Act of 1976
(ANGTA).
Despite the fact that efforts have been underway for thirty
years to encourage private sector construction of a pipeline
project from Alaska through Canada into upper Midwestern
markets, timely permitting still remains critical to the
success of any project of this magnitude. Estimates now place
the cost of one potential project, a nearly 3,000 mile
pipeline, at $30 Billion. Regulatory delays or excessive
litigation can spell certain doom in the effort to bring this
vast natural gas reserve to domestic markets. First gas will
not even be shipped until ten years at the earliest after the
initial private investment. Congress recognized these concerns
and took several steps to facilitate the permitting process
including expedited and streamlined judicial review in the
United States Circuit Court of Appeals for the District of
Columbia, required timelines for FERC's issuance of the
certificate of public convenience and establishment of the
Office of the Federal Coordinator.
The Office of the Federal Coordinator has a variety of
responsibilities, including coordination of federal
participation with the expectation that the federal regulatory
process will be streamlined and delay eliminated and, in
coordination with the state of Alaska, responsibility for
monitoring and oversight of construction. The OFC also is
vested with authority for implementation of ANGTA authorities,
for which a right of way has been issued and is subject to
renewal/expiration in 2010. Other federal agencies also have
roles. It is anticipated that no fewer than 18 federal agencies
will participate in the decision process. For instance, the
Department of Energy is responsible for federal loan guarantee
implementation and the Federal Energy Regulatory Commission is
responsible for pipeline (National Environmental Protection Act
(NEPA) compliance and issuance of the certificate of public
convenience.
The OFC currently is a small office permanently staffed
only by the Federal Coordinator. The Federal Coordinator has
supplemented OFC staff resources by personnel details from the
Department of the Interior. The OFC plans to remain a small
office, with as few as five or six professionals pending
selection of a project by the state of Alaska. The composition
of the team necessary for proper functioning of the OFC is
highly dependent on the nature of the project selected by the
state of Alaska. Upon project selection, it is crucial that the
OFC be able to quickly hire personnel from the limited pool of
individuals with the qualifications necessary to efficiently
carry out the functions of the OFC. OFC staff will be
concentrated in Washington D.C. and Alaska.
personnel authorities
This amendment provides the OFC authority to appoint and
terminate personnel without regard to the provisions of Title 5
of the United States Code governing appointments in the
competitive service. The OFC is a temporary agency which
sunsets one year after construction of a project. The staffing
levels and employee skill sets will vary depending upon the
project phases. For instance, the skill sets needed during the
permitting phase differ substantially from those necessary
during the construction phase. The office will maintain
staffing at a core level pending identification of a specific
project for construction by the state of Alaska. Not until a
project is identified will it be prudent to more fully staff
the OFC. Project staff for a pipeline only project may be very
different from a project composed of a pipeline and
liquefaction facilities. In addition, there is a limited field
of qualified applicants available to assist the OFC given the
specialized nature of the potential projects and the OFC role.
These limitations combined with the need for timely efforts by
the OFC make it useful to be able to hire and terminate certain
staff outside the regular federal hiring process in order to
remain responsive to project demands. The bill would address
those concerns with a blanket exemption from standard personnel
hiring procedures that apply to most other Federal agencies.
While this type of exemption would be advantageous for hiring
of certain highly-qualified staff, and is sometimes granted to
agencies to fill positions with special skills, it is rare for
an exemption to extend to an entire organization.
This authority is sometimes used for small agencies,
especially those with limited roles or fixed life spans. For
instance, other agencies with this authority include the Denali
Commission and the Vietnam Memorial Commission.
This amendment also gives the OFC authority to obtain the
temporary or intermittent services of experts or consultants
pursuant to already existing authority contained in 5 U.S.C.
Sec. 3109(b). This authority allows for the hire of necessary
staff resources on a temporary or intermittent basis to deal
with short term staffing, particularly with regard to technical
matters and short term needs. It is anticipated that a variety
of technical and professional services will be required on a
temporary or intermittent basis given the specialized nature of
the project to be constructed and the OFC functions.
Personnel hired pursuant to this authority may be
compensated at a rate not to exceed the maximum rate of basic
pay authorized for senior-level positions under 5 U.S.C.
Sec. 5376.
cost reimbursement authorities
Given the regulatory coordination, monitoring and oversight
role of the OFC, it is appropriate to assess costs to the
project proponent for these services. This same approach has
been adopted by the federal government for other projects, such
as with the Federal Land Policy and Management Act of 1976
(FLPMA, 43 U.S.C. Sec. 1734). Cost reimbursement authority
would provide supplemental funds to offset the cost to the
federal government of the OFC and reduce costs to the federal
taxpayer.
We understand that the intention of the amendment is to
grant the OFC discretion to establish or change reasonable
filing and service fees, charges and commissions and to allow
the OFC to require deposits of payments and provide refunds in
the same manner as currently is authorized for the Secretary of
the Interior under FLPMA.
We have concerns, however, that the language as drafted
would not provide such parallel authority to the OFC but would,
in fact, result in stripping the similar authority granted to
the Secretary of the Interior in FLPMA. We have developed
amended language that will address this issue and will provide
it to the Committee. Because we do not want to disrupt the
Department of the Interior's land management program under
FLPMA, this issue must be addressed.
closing
This concludes my remarks on the proposed amendments to
ANGPA. To summarize, the Administration has not completed its
full review of the bill and looks forward to further
discussions with you and your staff. The preceding comments
represent the Administration's preliminary views on the bill.
The Office of the Federal Coordinator is open for business and
is excited about the prospects for the future of a natural gas
pipeline to deliver clean natural gas to domestic markets from
Alaska reserves. The Alaska state legislature has taken a big
step in assisting by passage of Governor Palin's Alaska Gasline
Inducement Act. We anticipate that the Governor will select a
project in early 2008. The Office of the Federal Coordinator
will play an important role in assuring a timely, safe and
environmentally friendly project. Thank you for your interest
in this project so important to our Nation's energy
infrastructure.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill S. 1089, as ordered reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman):
THE ALASKA NATURAL GAS PIPELINE ACT
Division C of Public Law 108-324--Oct. 13, 2004
15 U.S.C. 720-720n
* * * * * * *
SEC.106. FEDERAL COORDINATOR.
(a) Establishment.--There is established, as an independent
office in the executive branch, the Office of the Federal
Coordinator for the Alaska Natural Gas Transportation Project.
* * * * * * *
(h) Administration.--
(1) Personnel appointments.--
(A) In general.--The Federal Coordinator may
appoint and terminate such personnel as the
Federal Coordinator determines to be
appropriate.
(B) Authority of federal coordinator.--
Personnel appointed by the Federal Coordinator
under subparagraph (A) shall be appointed
without regard to the provisions of title 5,
United States Code, governing appointments in
the competitive service.
(2) Compensation.--
(A) In general.--Subject to subparagraph (B),
personnel appointed by the Federal Coordinator
under paragraph (1)(A) shall be paid without
regard to the provisions of chapter 51 and
subchapter III of chapter 53 of title 5, United
States Code (relating to classification and
General Schedule pay rates).
(B) Maximum level of compensation.--The rate
of pay for personnel appointed by the Federal
Coordinator under paragraph (1) (A) shall not
exceed the maximum level of rate payable for
level III of the Executive Schedule.
(C) Applicability of section 5941.--Section
5941 of title 5, United States Code, shall
apply to personnel appointed by the Federal
Coordinator under paragraph (1) (A).
(3) Temporary services.--
(A) In general.--The Federal Coordinator may
procure temporary and intermittent services in
accordance with section 3109(b) of title 5,
United States Code.
(B) Maximum level of compensation.--The level
of compensation of an individual employed on a
temporary or intermittent basis under
subparagraph (A) shall not exceed the maximum
level of rate payable for level III of the
Executive Schedule.
(4) Fees, charges, and commissions.--
(A) In general.--The Federal Coordinator
shall have the authority to establish, change,
and abolish reasonable filing and service fees,
charges, and commissions, require deposits of
payments, and provide refunds as provided to
the Secretary of the Interior in section 304 of
the Federal Land Policy and Management Act of
1976 (43 U.S.C. 1734), except that the
authority shall be with respect to the duties
of the Federal Coordinator, as described in
this Act.
(B) Authority of secretary of the interior.--
Subparagraph (A) shall not affect the authority
of the Secretary of the Interior to establish,
change, and abolish reasonable filing and
service fees, charges, and commissions, require
deposits of payments, and provide refunds under
section 304 of the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1734).
(C) Use of funds.--The Federal Coordinator is
authorized to use, without further
appropriation, amounts collected under
subparagraph (A) to carry out this section.
SEC. 107. JUDICIAL REVIEW.
(a) Exclusive Jurisdiction.--Except for review by the
Supreme Court on writ of certiorari, the United States Court of
Appeals for the District of Columbia Circuit shall have
original and exclusive jurisdiction to determine--
(1) the validity of any final order or action
(including a failure to act) of any Federal agency or
officer under this subtitle; or
(2) the constitutionality of any provision of this
subtitle; or
[(3) the adequacy of any environmental impact
statement prepared under the National Environmental
Policy Act of 1969 ( 42 U.S.C. 4321 et seq.) with
respect to any action under this subtitle.]
(3) the validity of any determination, permit,
approval, authorization, review, or other related
action taken under any provision of law relating to a
gas transportation project constructed and operated in
accordance with section 103, including--
(A) Subchapter II of chapter 5, and chapter
7, of title 5, United States Code (commonly
known as the ``Administrative Procedure Act'');
(B) the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.);
(C) the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.);
(D) the National Historic Preservation Act
(16 U.S.C. 470 et seq.); and
(E) the Alaska National Interest Lands
Conservation Act (16 U.S.C. 3101 et seq.).