167
during the initial start-up of each LNG train, before each LNG train has reached its full steady-
state capacity and begun its commercial exports pursuant to Delfin’s long-term contracts.
399
The
Commissioning Volumes will not be counted against the maximum level of volumes previously
authorized in Delfin’s FTA authorization (DOE/FE Order No. 3393) or in this Order.
Delfin will be permitted to continue exporting for a total of three years following the end
of the 20-year term established in this Order, solely to export any Make-Up Volume that it was
unable to export during the original export period. The three-year term during which the Make-
Up Volume may be exported shall be known as the “Make-Up Period.”
The Make-Up Period does not affect or modify the total volume of LNG previously
authorized in Delfin’s FTA authorization (DOE/FE Order No. 3393) or in this Order. Insofar as
Delfin may seek to export additional volumes not previously authorized for export, it will be
required to obtain appropriate authorization from DOE/FE.
D.
Transfer, Assignment, or Change in Control
DOE/FE’s natural gas import/export regulations prohibit authorization holders from
transferring or assigning authorizations to import or export natural gas without specific
authorization by the Assistant Secretary for Fossil Energy.
400
As a condition of the similar
authorization issued to Sabine Pass in DOE/FE Order No. 2961, DOE/FE found that the
requirement for prior approval by the Assistant Secretary under its regulations applies to any
change of effective control of the authorization holder either through asset sale or stock transfer
or by other means. This condition was deemed necessary to ensure that, prior to any transfer or
399
For additional discussion of Commissioning Volumes and the Make-Up Period referenced below, see Freeport
LNG Expansion, L.P., et al., DOE/FE Order Nos. 3282-B & 3357-A, FE Docket Nos. 10-161-LNG & 11-161-LNG,
Order Amending DOE/FE Order Nos. 3282 and 3357, at 4-9 (June 6, 2014).
400
10 C.F.R. § 590.405.
168
change in control, DOE/FE will be given an adequate opportunity to assess the public interest
impacts of such a transfer or change.
DOE/FE construes a change in control to mean a change, directly or indirectly, of the
power to direct the management or policies of an entity whether such power is exercised through
one or more intermediary companies or pursuant to an agreement, written or oral, and whether
such power is established through ownership or voting of securities, or common directors,
officers, or stockholders, or voting trusts, holding trusts, or debt holdings, or contract, or any
other direct or indirect means. A rebuttable presumption that control exists will arise from the
ownership or the power to vote, directly or indirectly, 10 percent or more of the voting securities
of such entity.
401
E.
Agency Rights
Delfin requests authorization to export LNG from the Delfin Liquefaction Facility on its
own behalf and as agent for other entities that hold title to the LNG at the time of export,
pursuant to long-term contracts. DOE/FE previously addressed the issue of Agency Rights in
Order No. 2913, which granted Freeport LNG Expansion, L.P., et al. (FLEX) authority to export
LNG to FTA countries.
402
In that order, DOE/FE approved a proposal by FLEX to register each
LNG title holder for whom FLEX sought to export LNG as agent. DOE/FE found that this
proposal was an acceptable alternative to the non-binding policy adopted by DOE/FE in Dow
Chemical, which established that the title for all LNG authorized for export must be held by the
401
For information on DOE/FE’s procedures governing a change in control, see U.S. Dep’t of Energy, Procedures
for Changes in Control Affecting Applications and Authorizations to Import or Export Natural Gas, 79 Fed. Reg.
65,541 (Nov. 5, 2014) [hereinafter Procedures for Changes in Control].
402
Freeport LNG Expansion, L.P., et al., DOE/FE Order No. 2913, FE Docket No. 10-160-LNG, Order Granting
Long-Term Authorization to Export Liquefied Natural Gas from Freeport LNG Terminal to Free Trade Nations
(Feb. 10, 2011) [hereinafter Freeport LNG].
169
authorization holder at the point of export.
403
We find that the same policy considerations that
supported DOE/FE’s acceptance of the alternative registration proposal in Order No. 2913 apply
here as well.
DOE/FE has reiterated its policy on Agency Rights procedures in prior authorizations,
including in Cameron LNG, LLC, DOE/FE Order No. 3846.
404
In that order, DOE/FE
determined that, in LNG export orders in which Agency Rights have been granted, DOE/FE shall
require registration materials filed for, or by, an LNG title-holder (Registrant) to include the
same company identification information and long-term contract information of the Registrant as
if the Registrant had filed an application to export LNG on its own behalf.
405
To ensure that the public interest is served, the authorization granted herein shall be
conditioned to require that where Delfin proposes to export LNG from the Delfin Liquefaction
Facility as agent for other entities that hold title to the LNG (Registrants), it must register with
DOE/FE those entities on whose behalf it will export LNG in accordance with the procedures
and requirements described herein.
F.
Contract Provisions for the Sale or Transfer of LNG to be Exported
DOE/FE’s regulations require applicants to supply transaction-specific factual
information “to the extent practicable.”
406
Additionally, DOE/FE regulations allow confidential
treatment of the information supplied in support of or in opposition to an application if the
submitting party requests such treatment, shows why the information should be exempted from
403
Dow Chem. Co., DOE/FE Order No. 2859, FE Docket No. 10-57-LNG, Order Granting Blanket Authorization to
Export Liquefied Natural Gas, at 7-8 (Oct. 5, 2010), discussed in Freeport LNG, DOE/FE Order No. 2913, at 7-8.
404
See Cameron LNG, LLC, DOE/FE Order No. 3846.
405
See id. at 128-29 (citation omitted).
406
10 C.F.R. § 590.202(b).
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