Applications for Permits To Site Interstate Electric Transmission Facilities

AGENCY:

Federal Energy Regulatory Commission.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Federal Energy Regulatory Commission proposes to revise its existing regulations governing applications for permits to site electric transmission facilities under section 216 of the Federal Power Act, as amended by the Infrastructure Investment and Jobs Act of 2021.

DATES:

Comments are due April 17, 2023.

ADDRESSES:

Comments, identified by docket number, may be filed in the following ways. Electronic filing through http://www.ferc.gov is preferred.

• Electronic Filing: Documents must be filed in acceptable native applications and print-to-PDF, but not in scanned or picture format.

• For those unable to file electronically, comments may be filed by U.S. Postal Service mail or by hand (including courier) delivery.

○ Mail via U.S. Postal Service only: Addressed to: Federal Energy Regulatory Commission, Office of the Secretary, 888 First Street NE, Washington, DC 20426.

○ For delivery via any other carrier (including courier): Deliver to: Federal Energy Regulatory Commission, Office of the Secretary, 12225 Wilkins Avenue, Rockville, MD 20852.

The Comment Procedures section of this document contains more detailed filing procedures.

FOR FURTHER INFORMATION CONTACT:

Brandon Cherry (Technical Information), Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8328, brandon.cherry@ferc.gov.

Cleo Deschamps (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8377, cleo.deschamps@ferc.gov.

SUPPLEMENTARY INFORMATION:

United States of America

Federal Energy Regulatory Commission

Applications for Permits To Site Interstate Electric Transmission Facilities Docket No. RM22-7-000

Notice of Proposed Rulemaking

Table of Contents

181 FERC ¶ 61,205

United States of America

Federal Energy Regulatory Commission

Before Commissioners: Richard Glick, Chairman; James P. Danly, Allison Clements, Mark C. Christie, and Willie L. Phillips.

Applications for Permits to Site Interstate Electric Transmission Facilities Docket No. RM22-7-000

Notice of Proposed Rulemaking

(Issued December 15, 2022)

1. On November 15, 2021, the Infrastructure Investment and Jobs Act (IIJA) became law. The IIJA, among other things, amended section 216 of the Federal Power Act (FPA), which provides for Federal siting of electric transmission facilities under certain circumstances. The Federal Energy Regulatory Commission (Commission) proposes to amend its regulations governing applications for permits to site electric transmission facilities to ensure consistency with the IIJA's amendments to FPA section 216, to modernize certain regulatory requirements, and to incorporate other updates and clarifications to provide for the efficient and timely review of permit applications.

I. Background

A. Energy Policy Act of 2005 and FPA Section 216

2. The authority to site electric transmission facilities has traditionally resided solely with the States. However, the August 8, 2005 enactment of the Energy Policy Act of 2005 (EPAct 2005) established a limited Federal role in electric transmission siting by adding section 216 to the FPA. Under section 216, Federal siting authority for electric transmission facilities (as defined in that section) is divided between the Department of Energy (DOE) and the Commission. Section 216(a) directs DOE, on a triennial basis, to conduct a study and issue a report on electric transmission congestion and permits DOE to designate certain transmission-constrained or congested geographic areas as national interest electric transmission corridors (National Corridors). Section 216(b) authorizes the Commission in certain instances to issue permits for the construction or modification of electric transmission facilities in areas that DOE has designated as National Corridors.

3. As originally enacted in EPAct 2005, section 216(b)(1) authorized the Commission to issue permits to construct or modify electric transmission facilities in a National Corridor if it found that: (A) a State in which such facilities are located lacks the authority to approve the siting of the facilities or consider the interstate benefits expected to be achieved by the proposed construction or modification of transmission facilities in the State; (B) the permit applicant is a transmitting utility but does not qualify to apply for a permit or siting approval in a State because the applicant does not serve end-use customers in the State; or (C) a State commission or entity with siting authority has withheld approval of the facilities for more than one year after an application is filed or one year after the designation of the relevant National Corridor, whichever is later, or the State conditions the construction or modification of the facilities in such a manner that the proposal will not significantly reduce transmission congestion in interstate commerce or is not economically feasible.

4. In addition, before issuing a permit, sections 216(b)(2) through (6) required the Commission to find that the proposed facilities: (1) will be used for the transmission of electricity in interstate commerce; (2) are consistent with the public interest; (3) will significantly reduce transmission congestion in interstate commerce and protect or benefit consumers; (4) are consistent with sound national energy policy and will enhance energy independence; and (5) will maximize, to the extent reasonable and economical, the transmission capabilities of existing towers or structures.

5. Section 216(e) authorized a permit holder, if unable to reach agreement with a property owner, to use eminent domain to acquire the necessary right-of-way for the construction or modification of transmission facilities for which the Commission has issued a permit under section 216(b). Federal and State-owned land was expressly excluded from the purview of section 216(e) and thus could not be acquired via eminent domain.

6. Section 216(h)(2) designated DOE as the lead agency for purposes of coordinating all Federal authorizations and related environmental reviews needed to construct proposed electric transmission facilities. To ensure timely and efficient reviews and permit decisions, under section 216(h)(4)(A), DOE is required to establish prompt and binding intermediate milestones and ultimate deadlines for all Federal reviews and authorizations required for a proposed electric transmission facility. Under section 216(h)(5)(A), DOE, as lead agency, in consultation with other affected agencies, is required to prepare a single environmental review document that would be used as the basis for all decisions for proposed projects under Federal law.

7. On May 16, 2006, the Secretary of DOE delegated to the Commission authority to implement parts of section 216(h), specifically paragraphs (2), (3), (4)(A)-(B), and (5), for the proposed transmission facilities in designated National Corridors for which an applicant has applied to the Commission for issuance of a permit under section 216(b). Specifically, the Secretary delegated DOE's lead agency responsibilities to the Commission for the purposes of coordinating all applicable Federal authorizations and related environmental reviews and preparing a single environmental review document for proposed facilities under the Commission's siting jurisdiction.

8. As discussed further below, the IIJA amended certain provisions of section 216 that pertain to the Commission's permitting authority.

B. Order No. 689

9. Section 216(c)(2) of the FPA required the Commission to issue rules specifying the form of, and the information to be contained in, an application for proposed construction or modification of electric transmission facilities in National Corridors, and the manner of service of notice of the permit application on interested persons. Pursuant to this statutory requirement, on November 16, 2006, the Commission issued Order No. 689, which implemented new regulations for section 216 permit applications by adding part 50 to the Commission's regulations. In addition, Order No. 689 adopted certain modifications to the Commission's regulations implementing the National Environmental Policy Act of 1969 (NEPA) in part 380 to ensure that the Commission is provided sufficient information to conduct an environmental analysis of a proposed electric transmission project.

10. In Order No. 689, the Commission addressed a question of statutory interpretation raised by commenters concerning the text of section 216(b)(1)(C), which, at the time, conferred jurisdiction to the Commission whenever a State had withheld approval of a State siting application for more than one year. The Commission interpreted the phrase “withheld approval” to include any action that resulted in an applicant not receiving State approval within one year, including a State's express denial of an application to site transmission facilities.

C. Piedmont & California Wilderness Judicial Decisions

11. In 2009, the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit), in Piedmont Environmental Council v. FERC, held that the Commission's interpretation of “withheld approval” was contrary to the plain meaning of the statute, and that the Commission's permitting authority does not apply when a State has affirmatively denied a permit application within the one-year deadline. In addition, the Fourth Circuit vacated the Commission's transmission-related amendments to its regulations implementing NEPA, finding that the Commission had failed to consult with the Council on Environmental Quality (CEQ) before adopting the revisions.

12. Two years later, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit), in California Wilderness Coalition v. DOE, considered petitions for review challenging DOE's actions following the enactment of section 216. In August 2006, DOE had issued a Congestion Study, which identified two critically congested areas in the Mid-Atlantic and Southern California. Based on the results of the Congestion Study, in October 2007, DOE formally designated two National Corridors, the Mid-Atlantic and the Southwest Area Corridors. The Ninth Circuit vacated DOE's Congestion Study and National Corridor designations, finding that the agency: (1) failed to properly consult with affected States in preparing the Congestion Study, as required by section 216; and (2) failed to consider the environmental effects of the National Corridor designations under NEPA.

13. Since the Ninth Circuit decision in 2011, DOE has not designated any National Corridors, and the Commission has not received any applications for permits to site electric transmission facilities.

D. IIJA Amendments to FPA Section 216

14. On November 15, 2021, the IIJA amended section 216 of the FPA. As relevant to the Commission's permitting authority, the IIJA amended section 216(b)(1)(C) by deleting the phrase “withheld approval” and by incorporating revisions to the statutory text. As amended, section 216(b)(1)(C) provides that the Commission's permitting authority is triggered when a State commission or other entity with authority to approve the siting of the transmission facilities: (i) has not made a determination on an application by one year after the later of the date on which the application was filed or the date on which the relevant National Corridor was designated; (ii) has conditioned its approval such that the proposed project will not significantly reduce transmission capacity constraints or congestion in interstate commerce or is not economically feasible; or (iii) has denied an application. This statutory amendment resolves the jurisdictional issue at the heart of Piedmont by giving the Commission permitting authority when a State has denied an application.

15. Additionally, the IIJA amended section 216(e), which grants a permit holder the right to acquire the necessary right-of-way by eminent domain. As amended, section 216(e)(1) requires the Commission to determine, as a precondition to such eminent domain authority, that a permit holder has made good faith efforts to engage with landowners and other stakeholders early in the applicable permitting process.

16. With respect to DOE's authority, the IIJA amended section 216(a)(2) to expand the circumstances under which DOE may designate a National Corridor. In addition to geographic areas currently experiencing transmission capacity constraints or congestion that adversely affects consumers, DOE may designate National Corridors in geographic areas expected to experience such constraints or congestion. The IIJA also amended section 216(a)(4) to expand the factors that DOE may consider in determining whether to designate a National Corridor.

II. Discussion

A. Commission Jurisdiction and State Siting Proceedings

17. Section 216(b)(1)(C) of the FPA addresses instances where a State commission or other State entity with authority to site transmission facilities has acted, or has failed to act, triggering the Commission's jurisdiction. Below, the Commission proposes to revise § 50.6 of its regulations to reflect the IIJA's amendments to section 216(b)(1)(C) and announces a policy change with respect to the commencement of the Commission's pre-filing process for cases where the Commission's jurisdiction rests on section 216(b)(1)(C).

1. IIJA Amendments to FPA Section 216(b)(1)(C)

18. As discussed above, the IIJA amended FPA section 216(b)(1)(C) by revising the statutory text to expressly state that the Commission may issue a permit for the construction or modification of electric transmission facilities in National Corridors if a State has denied an applicant's request to site transmission facilities. Therefore, the Commission proposes to revise § 50.6 of its regulations, which describes the information that is required in each application filed pursuant to our part 50 regulations. As relevant here, § 50.6(e) requires the applicant to demonstrate that its proposed project would satisfy the requirements of section 216(b)(1) through (6). To reflect the IIJA's amendments to section 216(b)(1)(C), the Commission proposes corresponding revisions to § 50.6(e)(3) to provide that the applicant is required to submit evidence demonstrating that a State has: (i) not made a determination on an application; (ii) conditioned its approval in such a manner that the proposed facilities would not significantly reduce transmission capacity constraints or congestion in interstate commerce or is not economically feasible; or (iii) denied an application.

2. Commencement of Pre-Filing

19. The Commission has recognized that Congress, in enacting section 216 of the FPA, adopted a statutory scheme that allows simultaneous State and Commission siting processes. As explained in Order No. 689, the statute provides for this potential overlap by allowing the Commission to issue a permit one year after the State siting process has begun and requiring an expeditious pre-application mechanism for all permit decisions under Federal law. Thus, the Commission has recognized that our pre-filing process can occur at the same time as simultaneous State proceedings.

20. Notwithstanding that the statute allows simultaneous State and Federal proceedings, the Commission in the preamble to Order No. 689 announced a policy that, in cases where its jurisdiction rests on section 216(b)(1)(C), the pre-filing process would not commence until one year after the relevant State applications have been filed. This approach, the Commission explained, would provide the States one full year to process an application without any intervening Federal proceedings, including both the pre-filing and application processes, after which time an applicant might seek to commence the Commission's pre-filing process. However, the Commission noted that it would reconsider this issue if it later determined that requiring applicants to wait one year before commencing the Commission's pre-filing process was delaying projects or otherwise not in the public interest.

21. We are now reconsidering that policy. To ensure that permit applicants receive as timely a decision as possible from the Commission, we propose to eliminate the one-year delay before the Commission's pre-filing process may commence. The purpose of the pre-filing process is to facilitate maximum participation from all stakeholders to provide them with an opportunity to present their views and recommendations with respect to the environmental impacts of the facilities early in the planning stages of the proposed facilities. In addition to gathering stakeholder input, during the pre-filing process Commission staff will work with the applicant to ensure the applicant has compiled the necessary information for a complete application under §§ 50.6 and 50.7, and begin our coordination with other agencies as required under section 216(h). Therefore, to encourage the development of needed transmission infrastructure and to minimize the risk of delays, we propose to allow simultaneous processing of State applications and Commission pre-filing proceedings.

22. The Commission continues to recognize the primacy of the States' role in siting transmission infrastructure but, as discussed, believes that allowing for simultaneous processing could facilitate a more efficient process. In addition, we note that, the applicant could potentially collect information that is relevant to both State and Federal proceedings only once, avoiding the need to re-do or update analysis needed to meet Federal permit requirements. While states and other interested stakeholders are free to submit information in the pre-filing process, they are under no obligation to participate and will not waive any rights or otherwise be prejudiced if they choose not to do so. No rights are adjudicated in the pre-filing process, nor are findings of fact made. The pre-filing process is intended to facilitate the development of a complete application that can be acted upon expeditiously.

23. Though the statute does not limit when the Commission's pre-filing process may begin, the Commission intends to entertain requests to commence pre-filing, and may grant such requests, at any time after the relevant State applications have been filed. However, out of respect for State siting processes, the Commission proposes to provide an additional opportunity for State input before we determine that the pre-filing process is complete and that an application may be filed. Specifically, one year after the commencement of the Commission's pre-filing process, if a State has not made a determination on an application, we propose to provide a 90-day window for the State to provide comments on any aspect of the pre-filing process, including any information submitted by the applicant. We also seek comment on the advantages or disadvantages of the Commission entertaining requests to commence the pre-filing process before a State application has been filed.

B. Eminent Domain Authority and Applicant Efforts To Engage With Landowners and Other Stakeholders

24. As described above, the IIJA amended FPA section 216(e)(1) to require the Commission to determine, as a precondition to receiving eminent domain authority, that the permit holder has made good faith efforts to engage with landowners and stakeholders early in the permitting process. Therefore, the Commission proposes to supplement the existing landowner and stakeholder participation provisions in part 50 of its regulations.

25. Section 50.4 of the regulations requires the applicant to develop and file a Project Participation Plan early in the pre-filing process and to distribute, by mail and newspaper publication, project participation notices early in both the pre-filing and application review processes. Specifically, under § 50.4(a), the Project Participation Plan must: (1) identify specific tools and actions to facilitate stakeholder communications and public information; (2) list locations throughout the project area where the applicant will provide copies of all project filings; and (3) explain how the applicant intends to respond to requests for information from the public and other entities. Under § 50.4(c), the project participation notices must provide a range of information on the proposed project and permitting process, including a general description of the property an applicant would need from an affected landowner and a brief summary of what rights an affected landowner has at the Commission and in proceedings under the eminent domain rules of the relevant State.

26. To address the IIJA's amendment to section 216(e)(1), we propose to supplement the regulatory requirements in § 50.4 by adding a new § 50.12. Under proposed § 50.12, an applicant may demonstrate that it has met the statutory good faith efforts standard by complying with an Applicant Code of Conduct in its communications with affected landowners. The Applicant Code of Conduct in proposed § 50.12(a) includes particular recordkeeping and information-sharing requirements for engagement with affected landowners, as well as more general prohibitions against certain misconduct in such engagement. For example, an applicant that chooses to comply with the Applicant Code of Conduct set forth in proposed § 50.12(a) must: retain an affected landowner contact log; provide affected landowners with certain information about the project and the Commission; ensure communications with affected landowners are factually correct, devoid of misrepresentation, and respectful; obtain affected landowner permission to enter property and leave when asked; and, if applicable, provide an affected landowner with a copy of any appraisal prepared by, or on behalf of, the applicant for that landowner's property.

27. Under proposed § 50.12(b)(1), an applicant that chooses to show good faith by complying with the Applicant Code of Conduct must file, as part of the pre-filing request required under § 50.5(c), an affirmative statement indicating its intent to comply with the Applicant Code of Conduct. Under proposed § 50.12(b)(2), such an applicant must, as part of the monthly status reports required under § 50.5(e), demonstrate compliance by: (i) affirming that the applicant and its representatives have complied with the Applicant Code of Conduct; or (ii) explaining any instances of non-compliance during the relevant month and any remedial actions taken or planned. Under proposed § 50.12(b)(3), an applicant must also identify any known instances of non-compliance that were not disclosed in prior monthly status reports and explain any remedial actions taken to remedy such instances of non-compliance.

28. We emphasize that voluntary compliance with the Applicant Code of Conduct is one way, but not the only way, that an applicant may demonstrate that it has met the “good faith efforts” standard in section 216(e)(1). However, we believe that the Applicant Code of Conduct reflects principles that are broadly relevant to determining whether an applicant has made good faith efforts to engage with landowners and other stakeholders early in the applicable permitting process. We propose to require under § 50.12 that an applicant that chooses not to rely on compliance with the Applicant Code of Conduct must specify its alternative method of demonstrating that it meets the good faith efforts standard, including any specific commitments to record-keeping and information-sharing. The applicant must explain how its alternative method is equal to or superior to compliance with the Applicant Code of Conduct as a means to ensure the good faith efforts standard is met. The applicant should specifically explain, for each deviation from the Applicant Code of Conduct in its alternative method, its reasoning for not following that provision of the Applicant Code of Conduct and why the alternative method is an equal or better means to ensure the good faith standard is met notwithstanding that deviation.

29. An applicant bears the burden of demonstrating it has met the good faith efforts standard in a permit application proceeding. For an applicant that elects to rely on compliance with the Applicant Code of Conduct, the Commission will assess “good faith efforts” by evaluating whether evidence in the record shows the applicant substantially complied with the provisions of the Applicant Code of Conduct in its engagement with landowners and other stakeholders. For an applicant that elects to rely on an alternative method to show good faith efforts, the Commission will first assess whether the applicant's alternative method is equal to or superior to the Applicant Code of Conduct as a means to ensure the good faith efforts standard is met. If so, the Commission will then assess “good faith efforts” by evaluating whether evidence in the record shows the applicant substantially complied with the commitments of its alternative method.

C. Environmental Justice Public Engagement Plan

30. As described above, applicants are currently required by § 50.4(a) to develop and file a Project Participation Plan early in the pre-filing process. This requirement is intended to facilitate stakeholder communication and the dissemination of public information about the proposed project. Consistent with that goal, we believe that applicants should, early in the pre-filing process, meaningfully engage with potentially affected environmental justice communities. As discussed in this notice of proposed rulemaking (NOPR), the term “environmental justice community” includes disadvantaged communities that have been historically marginalized and overburdened by pollution. The term also includes, but may not be limited to, minority populations, low-income populations, or indigenous peoples. Applicants will identify potential environmental justice communities using the identification methods consistent with current Commission practice. This engagement would be consistent with: (1) Executive Order 12898, which directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority and low-income populations ( i.e., environmental justice communities); (2) Executive Order 14008, which directs agencies to develop “programs, policies, and activities to address the disproportionately high and adverse human health, environmental, climate-related and other cumulative impacts on disadvantaged communities, as well as the accompanying economic challenges of such impacts;” (3) Executive Order 13985, which requires Federal agencies to conduct Equity Assessments to identify and remove barriers to underserved communities and “to increase coordination, communication, and engagement with community-based organizations and civil rights organizations;” and (4) the Environmental Protection Agency's (EPA) Promising Practices report. This engagement would also be consistent with the Commission's Equity Action Plan adhering to Executive Order 13985, which promotes equitable processes and outcomes for underserved communities, including environmental justice communities, at the Commission.

31. Therefore, the Commission proposes to require applicants to develop and file an Environmental Justice Public Engagement Plan as part of their Project Participation Plan under § 50.4(a)(4). The Environmental Justice Public Engagement Plan must describe the applicant's completed and planned outreach activities that are targeted to identified environmental justice communities. The plan must also summarize comments received from potentially impacted environmental justice communities during any previous outreach activities, if applicable, and describe planned outreach activities during the permitting process, including efforts to identify, engage, and accommodate non-English speaking groups or linguistically isolated communities. The plan should also describe the manner in which the applicant will reach out to environmental justice communities about potential mitigation.

D. Other Proposed Revisions to 18 CFR Part 50

1. Section 50.1—Definitions

32. Section 50.1 sets forth the definitions for part 50 of the Commission's regulations. The Commission proposes to add a definition for the term “Indian Tribe” for consistency with its regulations governing other types of energy infrastructure projects. Specifically, the Commission proposes to define the term “Indian Tribe” as a Tribe that is recognized by treaty, by Federal statute, or by the U.S. Department of the Interior in its periodic publication of Tribal governments. We also propose to add a definition for the term “environmental justice community” to assist applicant compliance with the requirement in proposed § 50.4(a)(4) that an applicant develop and file an Environmental Justice Public Engagement Plan. Specifically, the Commission proposes to define the term “environmental justice community” as any disadvantaged community that has been historically marginalized and overburdened by pollution, including, but not limited to, minority populations, low-income populations, or indigenous peoples. We seek comment on the proposed definition of “environmental justice community” and whether the Commission should consider adopting an alternative definition, and, if so, why? The Commission also proposes to revise the definitions of: (1) “national interest electric transmission corridor” to include any geographic area that is expected to experience energy transmission capacity constraints or congestion, for consistency with the IIJA's amendments to section 216(a); (2) “permitting entity,” for clarity and consistency with the statute; and (3) “stakeholder,” for clarity and to ensure that environmental justice community members and other interested persons or organizations are covered by the definition.

33. Section 50.1 defines “affected landowners” as owners of property interests, as noted in the most recent county/city tax records as receiving the tax notice, whose property: (1) is directly affected ( i.e., crossed or used) by the proposed activity including all facility sites, rights-of-way, access roads, staging areas, and temporary workspace; or (2) abuts either side of an existing right-of-way or facility site owned in fee by any utility company, or abuts the edge of a proposed facility site or right-of-way which runs along a property line in the area in which the facilities would be constructed, or contains a residence within 50 feet of a proposed construction work area. The Commission is not proposing to revise the definition of “affected landowners.” Nevertheless, we seek comment on whether the Commission should revise the definition of “affected landowners” to include landowners located within a certain geographic distance from the proposed project facilities to address effects on visual (or other) resources, and, if so, what geographic distance should be used and why?

2. Section 50.3—Filing and Formatting Requirements

34. Section 50.3 establishes the filing and formatting requirements for submissions in the Commission's pre-filing and application processes. The Commission proposes to revise § 50.3(b) to eliminate the requirement that applications, amendments, and all exhibits and other submissions must be submitted in an original and seven conformed copies. Instead, to reduce waste, applicants would only be required to make these submissions in electronic format.

3. Section 50.4—Stakeholder Participation

i. Project Participation Plan

35. As described above, § 50.4(a) requires each applicant to develop and file a Project Participation Plan for use during the pre-filing and application processes to ensure that stakeholders have access to timely and accurate information on the proposed project and permitting process. The Project Participation Plan must, among other things, identify specific tools and actions to facilitate stakeholder communications and public information, including a regularly updated website. The Commission proposes to revise § 50.4(a)(1) to specify that an applicant's website must include an interactive mapping component to provide users with the ability to locate the proposed facilities in relation to specific properties and other features. Additionally, as discussed above, the Commission proposes to require an applicant to develop and file an Environmental Justice Public Engagement Plan early in the pre-filing process, which would describe an applicant's outreach to environmental justice communities.

ii. Project Notification Requirements

36. As described above, § 50.4(c) sets forth the project notification requirements for applicants. Section 50.4(c)(1) requires the applicant to distribute, by mail and newspaper publication, project participation notices within a specified time following notice that the pre-filing process has commenced and notice that an application has been filed. Section 50.4(c)(1) directs the applicant to notify, among others, all affected landowners and landowners with a residence within a quarter mile from the edge of the construction right-of-way for the proposed project. The Commission proposes to revise § 50.4(c)(1) for clarity and to ensure that applicants provide notice of the proposed project to all interested individuals and organizations. We seek comment on whether a quarter-mile limit is sufficient and, if not, what geographic distance should be used and why?

37. Section 50.4(c)(2)(i) describes the required contents of the pre-filing notice. For clarity and to avoid confusion, the Commission proposes organizational changes in the regulations to distinguish the requirements that pertain to any pre-filing notice that is sent by mail or published in a newspaper (proposed § 50.4(c)(2)(i)) from the requirements that pertain only to any pre-filing notice that is sent by mail to an affected landowner (proposed § 50.4(c)(2)(ii)).

38. In addition to this reorganization, we propose to add a requirement that any pre-filing notice mailed to an affected landowner also include a copy of a Commission document titled “ Landowner Bill of Rights in Federal Energy Regulatory Commission Electric Transmission Proceedings ” (Landowner Bill of Rights). We seek comment on a draft version of the Landowner Bill of Rights provided in the Appendix to this NOPR. The Commission believes that requiring the applicant to provide this information at the outset of the permitting process would help ensure that affected landowners are informed of their rights in dealings with the applicant, in Commission proceedings, and in eminent domain proceedings. We also propose to require that any pre-filing notice sent by mail or published in the newspaper include information clarifying that the Commission's pre-filing and application processes are separate from any simultaneous State siting proceeding and explaining how to participate in any such State siting proceeding.

39. The Commission expects applicants to make a good faith effort to ensure that individuals and organizations entitled to receive project participation notices can comprehend the contents of such notices. Accordingly, applicants should consider the need for project participation notices in languages other than English as part of the Environmental Justice Public Engagement Plan described above. Additionally, we seek comment on what methods of notice beyond mail and newspaper publication might be utilized in order to effectively reach the largest number of stakeholders as possible.

4. Section 50.5—Pre-Filing Procedures

40. Section 50.5 describes the required pre-filing procedures for applicants seeking a permit under FPA section 216. Section 50.5(c) describes the information that an applicant must provide in the pre-filing request. The Commission proposes to require that any pre-filing request include a detailed description of how the proposed project will reduce capacity constraints and congestion on the transmission system (proposed § 50.5(c)(8)) and, as described above, a statement indicating whether an applicant intends to comply with the Applicant Code of Conduct (proposed § 50.5(c)(9)).

41. Section 50.5(e) describes the information that an applicant must provide once the Director of the Office of Energy Projects has issued a notice commencing the pre-filing process, and the respective deadlines for filing such information. The Commission proposes clarifications to § 50.5(e)(3) and (4) to ensure consistency with the project notification requirements in § 50.4(c). We also propose to require an applicant to file congestion-related information earlier in the Commission's permitting process to provide sufficient time for Commission staff to evaluate the adequacy of information needed to conduct the required analyses under section 216(b)(4). Specifically, within 30 days of the notice commencing the pre-filing process, we propose to require an applicant to file a draft version of Exhibit H, System analysis data, required by § 50.7 (proposed § 50.5(e)(8)), showing how the proposed project will reduce capacity constraints and congestion on the transmission system. In addition to a draft version of Exhibit H, we also propose to require an applicant to file additional supporting information such as system impact study reports, relevant regional transmission plans, and, if applicable, expert witness testimony and other relevant information submitted with the State application(s) (proposed § 50.5(e)(7)).

5. Section 50.6—General Content of Applications

42. Section 50.6 describes the information that must be provided as part of an application for a permit under FPA section 216. In § 50.6(c), the Commission proposes to update certain terminology for clarity ( e.g., deleting origin and termination points and replacing those terms with point of receipt and point of delivery, respectively). We also propose to revise § 50.6(d) to specify that verification that the proposed route lies within a DOE-designated National Corridor must include the date of designation.

43. Each application filed under part 50 of the Commission's regulations must provide evidence demonstrating that one of the jurisdictional bases set forth in section 216(b)(1) applies to the proposed facilities. To ensure consistency with section 216(b)(1)(A), as amended by the IIJA, the Commission proposes to add to § 50.6(e)(1) the phrase “or interregional benefits” to clarify that an application may provide evidence that a State does not have the authority to consider the interstate benefits or interregional benefits expected to be achieved by the proposed facilities. While the statute, as amended by the IIJA, does not define the term “interregional,” the Commission for the purposes of this NOPR proposes to apply a meaning that is consistent with Order No. 1000, which defines an interregional transmission facility as one that is located in two or more transmission planning regions. As discussed above, we also propose revisions to § 50.6(e)(3) to ensure that the regulatory text tracks the IIJA's amendments to section 216(b)(1)(C).

6. Section 50.7—Application Exhibits

44. Section 50.7 identifies the exhibits that applicants must file with an application and describes the technical data that must be provided in each exhibit. Section 50.7(g) requires each applicant to submit Exhibit G— Engineering data, which must include a detailed project description. For consistency and clarity, the Commission proposes revisions to ensure that the project description includes points of receipt and delivery (§ 50.7(g)(1)(i)), line design features that minimize audible corona noise during rain or fog (§ 50.7(g)(1)(vi)), and overhead and underground structures (§ 50.7(g)(2)(ii)).

45. The Commission also proposes revisions to § 50.7(h), which describes the requirements for Exhibit H— System analysis data. Specifically, we propose to: (1) require the analysis to include project impacts on transmission capacity constraints (§ 50.7(h)(1)); (2) clarify that the analysis must include steady-state, short-circuit, and dynamic power flow cases, as applicable, and consider planned and forecasted forced outage rate for generation and transmission and generation dispatch scenarios (§ 50.7(h)(2)); and (3) require the analysis to identify how the proposed project will affect congestion on neighboring transmission systems (§ 50.7(h)(3)). This information is necessary for Commission staff to evaluate whether the proposed facilities would significantly reduce transmission congestion and protect or benefit consumers, as required by section 216(b)(4).

7. Section 50.11—General Permit Conditions

46. Section 50.11 lists the general conditions that would apply to any permit issued under part 50 of the Commission's regulations. The Commission proposes clarifying edits to §§ 50.11(a) and (b). The proposed revision to § 50.11(b) is intended to foreclose a situation where an applicant would need to accept a permit in instances where rehearing has been denied by operation of law and the applicant has appealed, but the Commission intends to issue a future order before the record is filed with the court of appeals.

47. In addition, to balance our commitment to expeditiously respond to parties' concerns in comprehensive orders on rehearing and the serious concerns posed by the possibility of construction proceeding prior to the completion of Commission review, we propose to add language to § 50.11(d) that would, under certain circumstances and for a limited time, preclude the issuance of authorizations to proceed with construction of transmission facilities authorized under FPA section 216 while requests for rehearing of orders issuing permits remain pending before the Commission. This proposed addition, which mirrors a regulation that the Commission previously adopted in the natural gas context, would ensure that construction of approved transmission facilities does not begin during 30-day rehearing period and, if a qualifying rehearing request is filed, until that request is no longer pending before the Commission, the record of the proceeding is filed with the court of appeals, or 90 days has elapsed since the rehearing request was deemed denied by operation of law.

8. Proposed Clarifying Revisions to 18 CFR Part 50

48. In addition to the proposed revisions discussed above, we propose minor, non-substantive edits throughout part 50 of our regulations. These proposed revisions are intended to clarify or streamline existing requirements, to correct grammatical errors and cross-references, and to maintain consistency.

E. Regulations Implementing NEPA

49. In Order No. 689, in addition to establishing the requirements for applications filed under FPA section 216, the Commission also adopted several amendments to its NEPA regulations. These amendments included revisions or additions to: § 380.3(c) (adding electric transmission projects to the list of project types for which applicants must provide environmental information), § 380.5(b)(14) (adding electric transmission facilities to the list of project types for which the Commission will prepare an Environmental Assessment), § 380.6(a)(5) (adding major electric transmission facilities using right-of-way in which there is no existing facility to the list of project types for which the Commission will prepare an Environmental Impact Statement), § 380.8 (designating the Office of Energy Projects as responsible for the preparation of environmental documents for electric transmission facilities), § 380.10(a)(2)(iii) (clarifying that pre-filing proceedings for electric transmission facilities are not open to motions to intervene), and § 380.15 (stating that electric transmission project sponsors must comply with the National Electric Safety Code and transmission rights-of-way are subject to the same construction and maintenance requirements as natural gas pipelines).

50. The Commission also added a new section to its NEPA regulations, 18 CFR 380.16, which describes the specific environmental information that must be included in applications for permits to site transmission facilities under section 216. Section 380.16 currently requires each applicant to submit an environmental report that includes eleven resource reports, as follows.

51. Resource Report 1 requires the applicant to describe the project and proposed construction methods and requirements; submit topographic maps, aerial images and/or photographs showing the proposed project facilities; identify all authorizations and mitigation measures required to construct the proposed project; and provide the names and addresses of all affected landowners.

52. Resource Report 2 requires the applicant to provide information necessary to determine the impact of the proposed project on water use and water quality and proposed mitigation measures.

53. Resource Report 3 requires the applicant to describe aquatic life, wildlife, and vegetation in the vicinity of the proposed project; the expected impacts on these resources; and proposed mitigation measures.

54. Resource Report 4 requires the applicant to provide information necessary for the Commission to consider the effect of a proposed project on cultural resources in furtherance of the Commission's obligations under section 106 of the National Historic Preservation Act (NHPA).

55. Resource Report 5 requires the applicant to describe the socioeconomic impact area and to identify and quantify the impacts of constructing and operating the proposed project on factors affecting towns and counties in the project vicinity.

56. Resource Report 6 requires the applicant to describe geological resources and hazards in the project area that might be directly or indirectly affected by the proposed facility or may place the proposed facility at risk, the potential effects of those hazards on the facility, and the methods to reduce the effects or risks.

57. Resource Report 7 requires the applicant to describe the soils that will be affected by the proposed project and measures proposed to minimize or avoid impacts.

58. Resource Report 8 requires the applicant to provide information concerning the uses of land in the project area and proposed mitigation measures to protect and enhance existing land use.

59. Resource Report 9 requires the applicant to describe alternatives to the project, including the “no action” alternative, and to compare the environmental impacts of such alternatives.

60. Resource Report 10 requires the applicant to address reliability and safety considerations, including the potential hazard to the public from the proposed facilities resulting from accidents or natural catastrophes; how these events would affect reliability; and the procedures and design features employed to reduce potential hazards.

61. Finally, Resource Report 11 requires the applicant to provide design and engineering data, including general design and engineering drawings of all major project structures, and a supporting design report.

62. As explained above, the Fourth Circuit's 2009 Piedmont decision vacated Order No. 689's amendments to the Commission's NEPA regulations because the court found that the Commission had failed to consult with CEQ prior to issuing the revised regulations. Notwithstanding the Fourth Circuit's vacatur, the NEPA amendments set forth in Order No. 689 are still reflected in 18 CFR part 380. We seek comment on the whole of the Commission's NEPA regulations pertaining to electric transmission facilities, as well as the specific proposed changes to those regulations described further below. The Commission will consult with CEQ on the proposed changes to its NEPA regulations described below as well as those originally implemented by Order No. 689.

1. Tribal Resources Resource Report

63. The Commission recognizes the unique relationship between the United States and Indian Tribes, acknowledges its trust responsibility to Indian Tribes, and endeavors to work with tribes on a government-to-government basis, seeking to address the effects of proposed projects on Tribal rights and resources through consultation. To evaluate the effects of proposed transmission facilities on Tribal rights and resources, the Commission's existing regulations require an applicant to submit information describing the project's effects on Tribes, Tribal lands, and Tribal resources as part of the Land use, recreation, and aesthetics resource report. Specifically, the applicant must identify Tribes that may attach religious and cultural significance to historic properties within the right-of-way or in the project vicinity; provide available information on traditional cultural and religious properties; and ensure that specific site or location information, disclosure of which will create a risk of harm, theft, or destruction or violate Federal law, is not disclosed.

64. The Commission proposes to relocate the existing Tribal resource-related information requirements to a new, standalone resource report, Resource Report 6— Tribal resources, in proposed § 380.16(h). In addition to consolidating the existing requirements in a new resource report, we also propose to require an applicant to identify potentially-affected Tribes (proposed § 380.16(h)(1)); describe the impacts of project construction, operation, and maintenance on Tribes and Tribal interests, including impacts related to enumerated resource areas (proposed § 380.16(h)(2)); and describe project impacts that may affect Tribal interests that are not necessarily associated with particular resource areas ( e.g., treaties, Tribal practices, or agreements) (proposed § 380.16(h)(3)). The Commission believes this information is necessary to fully evaluate the effects of a proposed project in furtherance of the Commission's trust responsibility and our statutory obligations under the FPA and NEPA.

2. Environmental Justice Resource Report

65. In conducting NEPA reviews of proposed transmission facilities, the Commission intends to follow the instruction of Executive Orders 12898, 14008, and 13985, as described above, and relevant CEQ guidance and EPA's Promising Practices report on assessing impacts on environmental justice communities under NEPA. Section 380.16 does not currently require an applicant to submit information on the potential project impacts on environmental justice communities. Therefore, the Commission proposes to add a new resource report, Resource Report 7— Environmental justice, in proposed § 380.16(i). Specifically, the resource report would require the applicant to identify environmental justice communities within the project's area of potential impacts (proposed § 380.16(i)(1)); describe the impacts of project construction, operation, and maintenance on environmental justice communities, including whether any impacts would be disproportionately high and adverse (proposed § 380.16(i)(2)); discuss cumulative impacts on environmental justice communities, including whether any cumulative impacts would be disproportionately high and adverse (proposed § 380.16(i)(3)); and describe any proposed mitigation measures intended to avoid or minimize impacts on environmental justice communities, including any community input received on the proposed measures and how the input informed the proposed measures (proposed § 380.16(i)(4)).

66. The Commission also proposes a corresponding addition to § 380.2, which sets forth the definitions for the Commission's NEPA regulations. Specifically, the Commission proposes to define the term “environmental justice community” in proposed § 380.2(f). The proposed definition of the term “environmental justice community” is identical to the definition that the Commission proposes to add to § 50.1.

67. Finally, while we recognize that EPA and CEQ are in the process of updating their guidance regarding environmental justice, we expect applicants to utilize the latest guidance and data from CEQ, EPA, the Census Bureau, and other authoritative sources. The Commission intends to review and incorporate any updated guidance from CEQ and EPA in our future analyses, as appropriate.

3. Air Quality and Environmental Noise Resource Report

68. Section 380.16(l)(7) requires applicants, as part of the existing Reliability and safety resource report, to indicate the noise level generated by the proposed transmission line and compare the noise level to any known noise ordinances for the zoning districts through which the line will pass. Section 380.16 does not currently require information on proposed project emissions and the corresponding effects on air quality and the environment.

69. To fully evaluate the effects of a proposed project in furtherance of our obligations under NEPA, the Commission believes additional information on emissions, air quality, and environmental noise is necessary. Therefore, the Commission proposes to add a new resource report, Resource Report 11— Air quality and environmental noise, in proposed § 380.16(m). Proposed Resource Report 11 would require the applicant to estimate emissions from the proposed project and the corresponding impacts on air quality and the environment, estimate the impact of the proposed project on the noise environment, and describe proposed measures to mitigate the impacts. Consistent with the Commission's requirements for natural gas compressor stations, we also propose to establish a noise limit for proposed substations and appurtenant facilities at pre-existing noise-sensitive areas, such as schools, hospitals, or residences.

70. Under proposed § 380.16(m)(1), the Air quality and environmental noise resource report must describe the existing air quality in the project area, indicate if any project facilities are located within a designated nonattainment or maintenance area under the Clean Air Act, and provide the distance from the project facilities to any Class I area in the project vicinity. Under proposed § 380.16(m)(3), the resource report must estimate emissions from the proposed project and the corresponding impacts on air quality and the environment. Specifically, the applicant must provide the reasonably foreseeable emissions from construction, operation, and maintenance of the project facilities; provide a comparison of emissions with applicable General Conformity thresholds (40 CFR part 93) for each designated nonattainment or maintenance area; identify the corresponding impacts on communities and the environment in the project area; and describe any proposed mitigation measures to control emissions.

71. Under proposed § 380.16(m)(2), the resource report must, for proposed substations and appurtenant facilities, quantitatively describe existing noise levels at nearby noise-sensitive areas. Under proposed § 380.16(m)(4), the resource report must provide a quantitative estimate of project operation (including proposed transmission lines, substations, and other appurtenant facilities) on noise levels. The operational noise estimates must demonstrate that the proposed project will comply with applicable State and local noise regulations and that noise attributable to any proposed substation or appurtenant facility does not exceed a day-night sound level (L_dn ) of 55 dBA at any pre-existing noise-sensitive area. Additionally, the resource report must describe the impact of proposed construction activities on the noise environment and any proposed mitigation measures to reduce noise impacts.

4. Visual Resources

72. Section 380.16(j)(11) requires applicants, as part of the existing Land use, recreation, and aesthetics resource report, to describe the visual characteristics of the lands and waters affected by the project, including how the transmission line facilities will impact the visual character of the project right-of-way and surrounding vicinity and related mitigation measures. The Commission's existing regulations encourage, but do not require, applicants to supplement this description with visual aids.

73. The Commission believes that more specific information is needed to evaluate the effects of the proposed project facilities on visual resources. Above ground high-voltage transmission lines may cause substantial visual contrast and be a major focus for viewer attention. To assess visual impacts of infrastructure projects, including high-voltage transmission lines, Commission staff has, in some cases, used the Bureau of Land Management's Visual Resource Management methodology, and other agencies have used the Federal Highway Administration's Visual Impact Assessment for Highway Projects. The Commission seeks comment on whether either of these tools, or any other tools, are appropriate for our analysis. Additionally, we believe that visual aids are necessary to support this evaluation. Therefore, in proposed § 380.16(l)(10), we propose to require the applicant to identify the area of potential visual effects from the proposed project; describe any visually sensitive areas, visual classifications, and key viewpoints in the project vicinity; and provide visual aids to support the evaluation of visual impacts from the proposed project.

5. Additional Proposed Revisions to 18 CFR 380.16

74. Because the Commission proposes to add to § 380.16 three new resource reports ( Tribal resources, Environmental justice and Air quality and environmental noise), we propose to redesignate all resource reports after Resource Report 5— Socioeconomics as follows: Resource Report 6— Tribal resources (proposed § 380.16(h)); Resource Report 7— Environmental justice (proposed § 380.16(i)); Resource Report 8— Geological resources (proposed § 380.16(j)); Resource Report 9— Soils (proposed § 380.16(k)); Resource Report 10— Land use, recreation, and aesthetics (proposed § 380.16(l)); Resource Report 11— Air quality and environmental noise (proposed § 380.16(m)); Resource Report 12— Alternatives (proposed § 380.16(n)); Resource Report 13— Reliability and safety (proposed § 380.16(o)); and Resource Report 14— Design and engineering (proposed § 380.16(p)).

75. In addition to the proposed addition of three new resource reports and the proposed changes to the visual resources requirements described above, the Commission proposes revisions throughout § 380.16. We discuss the main substantive revisions below.

76. In § 380.16(b)(3), we propose to clarify the scope of cumulative effects that must be identified in each resource report for consistency with the definition of cumulative effects in CEQ's NEPA regulations.

77. In § 380.16(c)(2), we propose to revise Resource Report 1— General project description to more clearly identify the types of facilities that must be depicted on the topographic maps and aerial images or photo-based alignment sheets. We also propose to add requirements to describe any proposed horizontal directional drilling and pile driving that may be necessary (§ 380.16(c)(3)), indicate the days of the week and times of the day during which construction activities would occur, and describe any proposed nighttime construction activities (§ 380.16(c)(4)).

78. In § 380.16(d)(6), the Commission proposes to add a requirement that Resource Report 2— Water use and quality describe the impact of proposed land clearing and vegetation management practices on water resources. In § 380.16(e), the Commission proposes to clarify that Resource Report 3— Fish, wildlife, and vegetation must describe potential impacts on interior forest (§ 380.16(e)(3)), as well as the impact of proposed land clearing and vegetation management practices on fish, wildlife, and vegetation (§ 380.16(e)(4)).

79. In § 380.16(k)(4), the Commission proposes to add a requirement that Resource Report 9— Soils describe any proposed mitigation measures intended to reduce the potential for adverse impacts to soils or agricultural productivity.

80. In § 380.16(l)(4), the Commission proposes to add a requirement that Resource Report 10— Land use, recreation, and aesthetics identify the area of direct effect of the proposed facilities on interior forest. The Commission also proposes to: (1) clarify the scope of facilities ( e.g., buildings, electronic installations, airstrips, airports, and heliports) in the project vicinity that must be identified; (2) clarify the corresponding requirements to depict such facilities on the maps and photographs in Resource Report 1 (§ 380.16(l)(5)); and (3) require copies of any consultation with the Federal Aviation Administration (§ 380.16(l)(5)(iii)).

81. In § 380.16(o)(3), the Commission proposes to add a requirement that Resource Report 13— Reliability and safety include a discussion of any proposed measures intended to ensure that the facilities proposed by the applicant would be resilient against future climate change impacts. We also propose to clarify the existing requirement that the Reliability and safety resource report discuss contingency plans for maintaining service or reducing downtime by adding that such contingency plans should ensure that the proposed facilities would not adversely affect the bulk electric system in accordance with applicable North American Electric Reliability Corporation reliability standards (§ 380.16(o)(4)). Finally, given the addition of new Resource Report 11— Air quality and environmental noise, the Commission proposes to eliminate from the Reliability and safety resource report the now redundant requirement that the applicant must indicate the noise level generated by the transmission line.

82. For all of the proposed revisions discussed above, we seek comment on, as appropriate, whether the Commission has authority to impose such changes and, if it does, whether it should impose such changes. We also propose minor, non-substantive edits throughout § 380.16. These proposed revisions are intended to clarify or streamline existing requirements, to correct grammatical errors and cross-references, and to maintain consistency.

6. Proposed Revisions to 18 CFR 380.13 and 380.14

83. Finally, the Commission also proposes to amend §§ 380.13 (Compliance with the Endangered Species Act) and 380.14 (Compliance with the NHPA) to add cross-references to the appropriate paragraphs of § 380.16. We believe the prior omission of such cross-references to be an oversight. Section 380.14 also contains a proposed revision to correct the legal citation for section 106 of the NHPA, following the act's recodification in title 54 of the U.S. Code.

III. Information Collection Statement

84. The Paperwork Reduction Act requires each Federal agency to seek and obtain the Office of Management and Budget's (OMB) approval before undertaking a collection of information directed to ten or more persons or contained in a rule of general applicability. OMB regulations require approval of certain information collection requirements contemplated by proposed rules. Upon approval of a collection of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of a rule will not be penalized for failing to respond to the collection of information unless the collection of information displays a valid OMB control number.

85. Public Reporting Burden: In this NOPR, the Commission proposes to revise its regulations governing applications for permits to site transmission facilities under section 216 of the FPA. This proposed rule would modify certain reporting and recordkeeping requirements included in FERC-729 (OMB Control No. 1902-0239).

86. The proposed revisions to the Commission's regulations associated with the FERC-729 information collection are intended to ensure consistency with section 216 of the FPA, as amended by the IIJA. The Commission also proposes revisions to modernize certain regulatory requirements and to incorporate other updates and clarifications to provide for the efficient and timely review of permit applications. Several of the proposed revisions have information collection implications. For example, the Commission proposes to require an applicant to:

• maintain an affected landowner contact log, provide certain information to affected landowners, file an affirmative statement with the Commission indicating the applicant's intent to comply with the Applicant Code of Conduct, and include compliance updates as part of the monthly status reports required during the pre-filing process;

• provide additional congestion and system analysis information during the pre-filing process and as part of the application;
• develop and file an environmental justice public engagement plan describing completed and planned targeted outreach efforts during the pre-filing process and after an application has been submitted;
• develop and file a new resource report describing the proposed project's impacts on Tribal resources;
• develop and file a new resource report describing the proposed project's impacts on environmental justice communities;
• develop and file a new resource report describing the proposed project's impact on air quality and environmental noise;
• provide additional information describing the proposed project's visual impacts; and

• provide additional information as part of the following existing resource reports: General project description; Water use and quality; Fish, wildlife, and vegetation; Soils; Land use, recreation, and aesthetics; and Reliability and safety.

These proposed revisions would represent an increase in information collection requirements and burden for FERC-729.

87. The Commission recognizes that some of the estimates for the information collection activities proposed in this NOPR are novel. Therefore, the Commission seeks comments on the burden and costs associated with the requirements contained in this NOPR.

88. The estimated burden and cost for the requirements contained in this NOPR follow.

89. Titles: FERC-729— Electric Transmission Facilities.

90. Action: Revisions to information collection FERC-729.

91. OMB Control Nos.: 1902-0238 (FERC-729).

92. Respondents: Entities proposing to construct electric transmission facilities pursuant to the Commission's authority under section 216 of the FPA.

93. Frequency of Information: Ongoing.

94. Necessity of Information: The new information collection requirements are necessary for the Commission to carry out its responsibilities under the FPA, as amended by the IIJA, and NEPA. The required information would enable the Commission to review the features of the proposed project and determine whether the proposed project meets the statutory criteria enumerated in section 216(b) of the FPA. In addition, the proposed revisions to the Commission's mandatory pre-filing process that would require certain information to be filed earlier in the process would help ensure that an application can be acted on no later than one year after the date of filing in compliance with section 216(h)(4)(B). The revised regulations would affect only the number of entities that would pursue a permit to site electric transmission facilities.

95. Internal Review: The Commission has reviewed the proposed revisions and has determined that they are necessary. These requirements conform to the Commission's need for efficient information collection, communication, and management within the energy industry. The Commission has assured itself, by means of internal review, that there is specific, objective support for the burden estimates associated with the information collection requirements.

96. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director], by email to DataClearance@ferc.gov or by phone (202) 502-8663.

97. Comments concerning the collections of information and the associated burden estimates may also be sent to: Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission]. Due to security concerns, comments should be sent electronically to the following email address: oira_submission@omb.eop.gov. Comments submitted to OMB should refer to FERC-729 (OMB Control No. 1902-0238).

IV. Environmental Analysis

98. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant effect on the human environment. The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment, including the promulgation of rules that are clarifying, corrective, or procedural, or that do not substantially change the effect of legislation or the regulations being amended. Because the actions proposed herein fall within this categorical exclusion, preparation of an Environmental Assessment or an Environmental Impact Statement is not required.

V. Regulatory Flexibility Act

99. The Regulatory Flexibility Act of 1980 (RFA) generally requires a description and analysis of proposed rules that will have significant economic impact on a substantial number of small entities. The RFA mandates consideration of regulatory alternatives that accomplish the stated objectives of a proposed rule and minimize any significant economic impact on a substantial number of small entities. In lieu of preparing a regulatory flexibility analysis, an agency may certify that a proposed rule will not have a significant economic impact on a substantial number of small entities.

100. The Small Business Administration's (SBA) Office of Size Standards develops the numerical definition of a small business. The SBA size standard for electric utilities is based on the number of employees, including affiliates. Under SBA's size standards, a transmission owner covered under the category of Electric Bulk Power Transmission and Control (NAICS code 221121) is small if, including its affiliates, it employs 500 or fewer people.

101. In Order No. 689, the Commission expected that entities seeking approval for transmission siting projects under FPA section 216 would be major transmission utilities capable of financing complex and costly transmission projects. At that time, the Commission anticipated that the high cost of constructing transmission facilities would preclude entry into this field by small entities as defined by the RFA. Though the SBA size standard for electric utilities has changed from megawatt hours to number of employees since Order No. 689 was issued, we continue to find it unlikely that small entities in any number, let alone a substantial number, will pursue the permitting of transmission projects before the Commission. Since Order No. 689, only Southern California Edison, which would not qualify as a small entity under the SBA's current size standards, has participated in the Commission's pre-filing process for applications to site transmission facilities under section 216. To date, the Commission has not received any applications for permits to site transmission facilities under section 216.

102. Accordingly, pursuant to section 605(b) of the RFA, the Commission certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities.

VI. Comment Procedures

103. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due April 17, 2023. Comments must refer to Docket No. RM22-7-000 and must include the commenter's name; the organization they represent, if applicable; and their address in their comments. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.

104. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's website at http://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software must be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing.

105. Commenters that are not able to file comments electronically may file an original of their comment by U.S. Postal Service mail or by courier or other delivery services. For submission sent via U.S. Postal Service only, filings should be mailed to: Federal Energy Regulatory Commission, Office of the Secretary, 888 First Street NE, Washington, DC 20426. Submission of filings other than by U.S. Postal Service should be delivered to: Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, MD 20852.

VII. Document Availability

106. In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through the Commission's Home Page ( http://www.ferc.gov ). At this time, the Commission has suspended access to the Commission's Public Reference Room due to the President's March 13, 2020 proclamation declaring a National Emergency concerning the Novel Coronavirus Disease (COVID-19).

107. From the Commission's Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

108. User assistance is available for eLibrary and the Commission's website during normal business hours from the Commission's Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at public.referenceroom@ferc.gov.

List of Subjects

18 CFR Part 50

• Administrative practice and procedure
• Electric power
• Reporting and recordkeeping requirements

18 CFR Part 380

• Environmental impact statements
• Reporting and recordkeeping requirements

By direction of the Commission.

Commissioner Danly is concurring with a separate statement attached.

Commissioner Christie is concurring with separate statement attached.

(S E A L)

In consideration of the foregoing, the Commission proposes to amend Parts 50 and 380, Chapter I, Title 18, Code of Federal Regulations, as follows.

PART 50—APPLICATIONS FOR PERMITS TO SITE INTERSTATE ELECTRIC TRANSMISSION FACILITIES

1. The authority citation for part 50 continues to read as follows:

Authority: 16 U.S.C. 824p; DOE Delegation Order No. 00-004.00A.

2. Amend § 50.1 as follows:

a. Add a definition in alphabetical order for “Environmental justice community”;

b. Remove the words “special use authorization” in the definition of “Federal authorization” and add in its place the words “special use authorizations”;

c. Add a definition in alphabetical order for “Indian Tribe”; and

d. Revise the definitions of “National interest electric transmission corridor”, “Permitting entity”, and “Stakeholder”.

The additions and revisions read as follows:

3. Amend § 50.2 as follows:

a. Remove the word “tribes” in the third sentence of paragraph (a) and add in its place the word “Tribes”; and

b. Remove the word “which” in paragraph (c) and add in its place the word “that”.

4. Amend § 50.3 by revising paragraph (b) to read as follows:

5. Amend § 50.4 as follows:

a. Revise paragraphs (a)(1) through (3);

b. Add paragraph (a)(4); and

c. Revise the first sentence of paragraph (c)(1) introductory text and revise paragraphs (c)(1)(ii) and (c)(2) through (4).

The revisions and addition read as follows:

6. Amend § 50.5 as follows:

a. Revise paragraph (c) introductory text, the first sentence of paragraph (c)(3) introductory text, paragraph (c)(3)(i), and the first sentence of paragraph (c)(5);

b. Add paragraphs (c)(8) and (9);

c. Revise paragraphs (d)(1)(i) and (e)(3)(i);

d. Remove paragraph (e)(3)(ii);

e. Redesignate paragraph (e)(3)(iii) as (e)(3)(ii);

f. Revise the first sentence of paragraph (e)(4);

g. Redesignate paragraphs (e)(7) and (8) as paragraphs (e)(9) and (10), respectively;

h. Add new paragraphs (e)(7) and (8); and

i. Revise the first sentence of newly redesignated paragraph (e)(10).

The revisions and additions read as follows:

7. Amend § 50.6 as follows:

a. Revise paragraph (b), the second sentence of paragraph (c), and paragraphs (d), (e)(1), and (e)(3)(i) and (ii);

b. Add paragraph (e)(3)(iii); and

c. Revise paragraph (i).

The revisions and addition read as follows:

8. Amend § 50.7 as follows:

a. Revise the introductory text and paragraphs (g)(1)(i) and (vi), (g)(2)(ii) and (vi), (g)(3)(iii), (g)(4)(iii), (g)(5) introductory text, (g)(6) introductory text, (g)(6)(ii), (g)(8), (h)(1), the first sentence of paragraph (h)(2) introductory text, and paragraph (h)(2)(ii);

b. Remove paragraphs (h)(3) and (4);

c. Redesignate paragraphs (h)(5) and (6) as paragraphs (h)(3) and (4); and

d. Revise newly redesignated paragraphs (h)(3) and (4) and paragraphs (i)(2) and and (j).

The revisions read as follows:

9. Amend § 50.8 as follows:

a. Remove the word “applicant's” in the second sentence of paragraph (b) and add in its place the word “applicant”; and

b. Remove the comma directly following the word “rejected” in paragraph (c).

10. Amend § 50.9 by revising paragraph (b) to read as follows:

11. Amend § 50.11 as follows:

a. Revise paragraph (a) and the second sentence of paragraph (b);

b. Add a sentence at the end of paragraph (d) introductory text and add paragraphs (d)(1) and (2);

c. Remove the word “permitee” in the first sentence of paragraph (e) and add in its place the word “permittee”;

d. Remove the word “Order” in the first sentence of paragraph (g) introductory text and add in its place the word “order”; and

e. Remove the word “Orders” in paragraph (g)(2) and add in its place the word “orders”.

The revisions and addition read as follows:

12. Add § 50.12 to read as follows:

PART 380—REGULATIONS IMPLEMENTING THE NATIONAL ENVIRONMENTAL POLICY ACT

13. The authority citation for part 380 continues to read as follows:

Authority: 42 U.S.C. 4321-4370h, 7101-7352; E.O. 12009, 3 CFR 1978 Comp., p. 142.

14. Amend § 380.2 by redesignating paragraphs (f) and (g) as paragraphs (g) and (h) and adding new paragraph (f).

The addition reads as follows:

15. Amend § 380.13 in paragraph (b)(2)(i) by adding “or § 380.16, as applicable” directly after the reference to “§ 380.12”.

16. Amend § 380.14 in paragraph (a) introductory text as follows:

a. Remove the parenthetical reference to “ 16 U.S.C. 470(f)” in the first sentence and adding, in its place, a parenthetical reference to “54 U.S.C. 306108”; and

b. Add the “or § 380.16(f), as applicable” directly after the reference to “380.12(f)”.

17. Amend § 380.16 as follows:

a. Revise the second sentence of paragraph (a)(1), revise paragraph (b)(3), revise the first sentence of paragraph (c) introductory text and the first sentence of paragraph (c)(1), and revise paragraphs (c)(2)(i) through (iii) and (c)(3) and (4);

b. Revise paragraph (d)(6) and the second sentence of paragraph (d)(7);

c. Revise paragraph (e)(3), the first two sentences of paragraph (e)(4), the first and third sentences of paragraph (e)(5), and paragraphs (e)(6) through (8);

d. Revise paragraphs (f)(1)(i), (iii), (iv), and (v), (f)(2) introductory text, and the first sentence of paragraph (f)(4);

e. Revise the first sentence of paragraph (g) introductory text and paragraphs (g)(3) and (6);

f. Redesignate paragraphs (k) through (m) as paragraphs (n) through (p);

g. Redesignate paragraphs (h) through (j) as paragraphs (j) through (l);

h. Add new paragraphs (h) and (i);

i. Revise the heading and the second sentence of newly redesignated paragraph (j) introductory text and revise newly redesignated paragraph (j)(3);

j. Revise the newly redesignated paragraph (k) heading and paragraphs (k) introductory text and (k)(2) and (3);

k. Add paragraph (k)(4);

l. Revise newly redesignated paragraph (l);

m. Add new paragraph (m);

n. Revise the newly redesignated paragraph (n) heading and introductory text, the second sentence of newly redesignated paragraph (n)(2)(i), and the second sentence of newly redesignated paragraph (n)(2)(ii);

o. Revise the newly redesignated paragraph (o) heading and introductory text, newly redesignated paragraphs (o)(1) through (4), the first sentence of newly redesignated paragraph (o)(5), and newly redesignated paragraph (o)(7); and

p. Revise the newly redesignated paragraph (p) heading, the second sentence of newly redesignated paragraph (p) introductory text, the third sentence of newly redesignated paragraph (p)(2), and newly redesignated paragraphs (p)(3)(i) and (iii) and (p)(4).

The revisions and additions read as follows: