
[Federal Register Volume 79, Number 190 (Wednesday, October 1, 2014)]
[Rules and Regulations]
[Pages 59105-59112]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-23204]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 4 and 380

[Docket No. RM14-22-000; Order No. 800]


Revisions and Technical Corrections To Conform the Commission's 
Regulations to the Hydropower Regulatory Efficiency Act of 2013

AGENCY:  Federal Energy Regulatory Commission, DOE.

ACTION:  Final rule.

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SUMMARY:  The Federal Energy Regulatory Commission (Commission) issues 
this Final Rule to amend its regulations to conform to the enacted 
Hydropower Regulatory Efficiency Act of 2013 (Hydropower Efficiency 
Act). Although the Commission has been complying with the Hydropower 
Efficiency Act, and made its compliance procedures available on its Web 
site, this Final Rule now formalizes the Commission's compliance 
procedures in its revised regulations on preliminary permits, small 
conduit hydroelectric facilities, and small hydroelectric power 
projects, and in a new subpart on qualifying conduit hydropower 
facilities. In addition, this Final Rule corrects grammatical and 
typographical errors. All revisions in this Final Rule are intended to 
be ministerial in nature.

DATES: Effective Date: This rule will become effective February 23, 
2015.

FOR FURTHER INFORMATION CONTACT: 
Carolyn Clarkin (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street NE., Washington, 
DC 20426, (202) 502-8563, Carolyn.Clarkin@ferc.gov.
Christopher Chaney (Technical Information), Office of Energy Projects, 
Federal Energy Regulatory Commission, 888 First Street NE., Washington, 
DC 20426, (202) 502-6778, Christopher.Chaney@ferc.gov.
Shana Murray (Technical Information), Office of Energy Projects, 
Federal Energy Regulatory Commission, 888 First Street NE., Washington, 
DC 20426, (202) 502-8333, Shana.Murray@ferc.gov.

SUPPLEMENTARY INFORMATION: 

I. Background and Discussion

    1. By this Final Rule, the Commission is amending Parts 4 and 380 
of its regulations to conform to the Hydropower Regulatory Efficiency 
Act of 2013 (Hydropower Efficiency Act or Act).\1\ On August 9, 2013, 
Congress enacted the Hydropower Efficiency Act to encourage the 
hydropower industry to utilize non-power dams for electric generation, 
noting that roughly 97 percent of the 80,000 dams in the United States 
do not generate electricity. Congress recognized that it could 
encourage hydropower development by reducing costs and regulatory 
burden during the project study and licensing stages. To that end, the 
Hydropower Efficiency Act amends statutory provisions pertaining to 
preliminary permits and projects that are exempt from licensing.
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    \1\ Public Law 113-23 (2013).
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A. Amendment Pertaining to Preliminary Permits

    2. Under section 5 of the Federal Power Act (FPA),\2\ the 
Commission can issue preliminary permits with maximum three-year terms. 
A preliminary permit preserves the right of the permit holder to have 
the first priority in applying for a license or exemption for the 
project site. During the preliminary permit term, permittees conduct 
investigations and secure necessary data to determine the feasibility 
of a proposed project and to prepare a development (i.e., license or 
exemption) application.
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    \2\ 16 U.S.C. 798 (2012), amended by, Hydropower Regulatory 
Efficiency Act of 2013, Public Law 113-23, 5, 127 Stat. 493 (2013).
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    3. Before the new law, upon expiration of its permit, a permittee 
could apply for a successive preliminary permit to continue its 
feasibility studies. When such an application is filed, the Commission 
issues public notice and provides other entities an opportunity to file 
competing preliminary permit or development applications, of which the 
Commission would select the winning applicant using procedures outlined 
in its regulations.\3\
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    \3\ See 18 CFR 4.36-4.37 (2014).
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    4. The Hydropower Efficiency Act amends section 5 of the FPA to 
give the Commission the authority to extend a preliminary permit once 
for not more than two additional years, allowing permittees more time 
to complete their feasibility studies without facing possible 
competition for the site from others.

B. Amendments Pertaining to Projects Exempt From Licensing

    5. Certain projects may qualify for an exemption from the licensing 
requirements of Part I of the FPA: Specifically, small conduit 
hydroelectric facilities or small hydroelectric power projects. A small 
conduit hydroelectric facility (small

[[Page 59106]]

conduit), as defined in section 30 of the FPA,\4\ is an existing or 
proposed hydroelectric facility that utilizes for electric power 
generation the hydroelectric potential of a conduit, or any tunnel, 
canal, pipeline, aqueduct, flume, ditch, or similar manmade water 
conveyance that is operated for the distribution of water for 
agricultural, municipal, or industrial consumption and not primarily 
for the generation of electricity. A small hydroelectric power project, 
as defined in the Public Utilities Regulatory Policies Act of 1978 
(PURPA),\5\ is a project that utilizes for electric generation the 
water potential of either an existing non-federal dam or a natural 
water feature (e.g., natural lake, water fall, gradient of a stream, 
etc.) without the need for a dam or man-made impoundment.
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    \4\ 16 U.S.C. 823a (2012), amended by, Hydropower Regulatory 
Efficiency Act of 2013, Public Law 113-23, 4, 127 Stat. 493 (2013).
    \5\ 16 U.S.C. 2708 (2012).
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    6. Before the new law, small conduit exemptions could be located 
only on non-federal lands and only municipal small conduit exemptions 
could have an installed capacity of up to 40 megawatts (MW) (the 
maximum installed capacity of non-municipal projects was limited to 15 
MW). To increase the number of projects eligible for small conduit 
exemptions, the Act amends section 30 of the FPA \6\ to allow small 
conduit exemptions to be located on federal lands, and to increase the 
maximum installed capacity for all small conduit exemptions to 40 MW. 
Similarly, the Hydropower Efficiency Act increases the number of 
projects eligible for small hydroelectric power project exemptions. 
Previously, small hydroelectric power projects could not have an 
installed capacity that exceeded 5 MW. Now, pursuant to the Act's 
amendment to section 405 of PURPA,\7\ small hydroelectric power 
projects may have a maximum installed capacity of up to 10 MW.
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    \6\ 16 U.S.C. 823(a) (2012), amended by, Hydropower Regulatory 
Efficiency Act of 2013, Public Law 113-23, 4, 127 Stat. 493 (2013).
    \7\ 16 U.S.C. 2705, amended by, Hydropower Regulatory Efficiency 
Act of 2013, Public Law 113-23, 3, 127 Stat. 493 (2013).
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    7. In addition to its amendments of existing exemptions, the 
Hydropower Efficiency Act creates a subset of small conduit exemptions, 
called ``qualifying conduit hydropower facilities,'' which are not 
required to be licensed under Part I of the FPA. A qualifying conduit 
hydropower facility is a facility that meets the following qualifying 
criteria: (1) The facility would be constructed, operated, or 
maintained for the generation of electric power using only the 
hydroelectric potential of a non-federally owned conduit, without the 
need for a dam or impoundment; (2) the facility would have a total 
installed capacity that does not exceed 5 MW; and (3) the facility is 
not licensed under, or exempted from, the license requirements in Part 
I of the FPA on or before the date of enactment of the Hydropower 
Efficiency Act (i.e., August 9, 2013). To obtain a determination that a 
project is a qualifying conduit hydropower facility, an entity must 
file with the Commission a notice of its intent to construct the 
facility that demonstrates the facility meets the qualifying criteria 
discussed above.

C. Revised Regulations

    8. By this Final Rule, the Commission is conforming its regulations 
to the Hydropower Efficiency Act. Nevertheless, the Commission has 
complied with the requirements of the Act since its enactment. The 
Commission has issued two-year extensions to preliminary permit 
holders, granted a small conduit exemption on federal lands, and issued 
conduit facility determinations on whether proposed projects are 
qualifying conduit hydropower facilities. The Commission's compliance 
procedures are available on its Web site at http://www.ferc.gov/industries/hydropower.asp.\8\
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    \8\ See Federal Energy Regulatory Commission, Hydropower 
Regulatory Efficiency Act of 2013, http://www.ferc.gov/industries/hydropower/indus-act/efficiency-act.asp.
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    9. In this Final Rule, the Commission modifies and deletes language 
on preliminary permits and exemptions in Parts 4 and 380 of its 
regulations. Further, the Commission adds language to Part 4. For 
example, now that small conduit exemptions are permitted to be located 
on federal lands, the Commission adds a provision requiring an exemptee 
with a small conduit exemption on federal lands to notify the 
respective federal land agency when it requests to surrender its 
exemption. The Commission also adds a new subpart to Part 4 (i.e., 
Subpart N) on qualifying conduit hydropower facilities to set forth the 
required contents of a notice of intent to construct, which will 
provide the Commission with information necessary to determine whether 
the proposed facility meets the requirements of the Hydropower 
Efficiency Act.
    10. Along with conforming the Commission's regulations, this Final 
Rule corrects miscellaneous grammatical and typographical mistakes to 
improve the clarity and accuracy of the regulations. All revisions 
provided in the Final Rule are intended to be ministerial.

II. Information Collection Statement

    11. The Paperwork Reduction Act \9\ requires each federal agency to 
seek and obtain Office of Management and Budget (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 imposed 
by agency rules.\10\ 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 an agency 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.
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    \9\ 44 U.S.C. 3501-3520 (2012).
    \10\ See 5 CFR 1320.10 (2014).
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    12. The Commission will submit the revised information collection 
requirements to OMB for its review and approval. The entities affected 
by this rule would be those with: (1) Preliminary permits who request 
extensions, (2) proposed non-municipal small conduit hydroelectric 
facilities (with a total installed capacity of greater than 15 MW and 
up to 40 MW) requesting exemptions, (3) proposed small conduit 
hydroelectric facilities (located on federal lands) requesting 
exemptions, (4) proposed small hydroelectric power projects (with total 
installed capacity of greater than 5 MW and up to 10 MW) requesting 
exemptions, and (5) proposals to construct projects eligible to be 
qualifying conduit hydropower facilities. The Commission will submit 
the information collection requirements in this Final Rule to OMB for 
its review. The information collection requirements are included in the 
following FERC collection numbers: (a) FERC-505, ``Small Hydropower 
Projects and Conduit Facilities including License/Relicense, Exemption, 
and Qualifying Conduit Facility Determination,'' \11\ and (b) FERC-512, 
``Preliminary Permit.''
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    \11\ The former title of FERC collection number FERC-505 was 
``Application for License/Relicense for Hydropower Projects with 5 
MW or Less Capacity.''
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    13. Information Collection Costs: The Commission's estimated 
average annual reporting burden and cost associated with implementation 
of this rule follows. Overall, the rule reduces the current burden for 
affected entities. As noted earlier, permittees may request a two-year 
extension of their preliminary

[[Page 59107]]

permit term without preparing a successive preliminary permit 
application or competing with other entities for the site. Moreover, 
more entities may qualify for exemption from certain licensing 
requirements (i.e., small conduit hydroelectric facilities or small 
hydroelectric power projects), and others may qualify to operate their 
projects without Commission oversight (i.e., qualifying conduit 
hydropower facilities).

                                              Annual Changes Implemented by the Final Rule in RM14-22 \12\
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                                                                          Annual  number                                   Total annual
                                                             Number of     of  responses   Total number       Average     burden hours &     Cost per
                   Type of respondents                      respondents      \13\  per     of responses    burden & cost   total annual     respondent
                                                                            respondent                     per response        cost
                                                                     (a)             (b)     (a)x(b)=(c)             (d)     (c)x(d)=(e)         (e)/(a)
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    FERC-505, Small Hydropower Projects and Conduit Facilities including License/Relicense, Exemption, and Qualifying Conduit Facility Determination
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Small conduit exemption applications (40 MW or less,              \15\ 5               1               5         46 hrs.        230 hrs.          $3,243
 which can now be on fed. lands) \14\...................
                                                                                                                  $3,243         $16,215
Small conduit exemption holder--notice to fed. agencies                1        \16\ 0.1             0.1         46 hrs.        4.6 hrs.             324
 of petition to surrender and steps to be taken to
 restore lands..........................................
                                                                                                                  $3,243            $324
Small hydroelectric power project exemption applications               2               1               2         46 hrs.         92 hrs.           3,243
 (greater than 5 MW and up to 10 MW) \17\...............
                                                                                                                  $3,243          $6,486
Qualifying conduit hydropower facility -notices of                \19\ 8               1               8         46 hrs.        368 hrs.           3,243
 intent \18\............................................
                                                                                                                  $3,243         $25,944
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                                                      FERC-512, Application for Preliminary Permit
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Request for extension to 5 years........................         \20\ 80               1              80          4 hrs.        320 hrs.             282
                                                                                                                    $282         $22,560
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    \12\ The estimated average hourly cost (salary plus benefits) is 
$70.50.
    \13\ We consider the filing of an application to be a 
``response.''
    \14\ The estimates provided for small conduit exemption 
applications are for all conduit exemption applications, including 
applications for non-municipal conduit exemptions that have an 
installed capacity of greater than 15 MW and up to 40 MW, and for 
any conduit exemption located on federal land.
    \15\ The Commission previously received roughly nine small 
conduit exemption applications annually, many of which are now 
likely to be eligible to be qualifying conduit hydropower 
facilities, and thus are not required to be licensed under Part I of 
the FPA. After implementation of this rule, we estimate five new 
small conduit exemption applications per year.
    \16\ Since August 2013, the Commission has received three small 
conduit exemption applications, one of which proposes to locate the 
project on federal lands. We anticipate surrenders of conduit 
exemptions on federal lands to be rare, and therefore, we estimate 
one surrender of a conduit exemption on federal lands to be filed 
every ten years (equaling on average 0.1 applications per year). The 
one surrender would trigger agency notification, which is estimated 
to take 46 hours. The burden and cost are being averaged over that 
ten-year period (equaling on average 4.6 hours per year).
    \17\ The Commission received six license applications between 
2010 and 2013 that proposed projects with installed capacity greater 
than 5 MW, which could now qualify for a small hydroelectric power 
project exemption. Therefore, Commission staff estimates that on 
average the Commission receives two applications per year.
    \18\ A notice of intent is a request that the Commission 
determine a project is a qualifying conduit hydropower facility.
    \19\ While the Commission initially received a rash of notices 
of intent to construct qualifying conduit hydropower facilities, we 
expect notices of intent to taper off. Nearly 75 percent of the 23 
notices of intent we received in the past year were filed within the 
first 6 months of the program. In the last three months, we have 
received two notices of intent. Therefore, we estimate that we will 
receive eight notices of intent per year.
    \20\ Based on the number of preliminary permits issued in the 
past 3 years, Commission staff estimates that an annual average of 
80 permits will be eligible to request an extension.
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    14. Title: FERC-505, ``Small Hydropower Projects and Conduits 
including License/Relicense, Exemption, and Qualifying Conduit Facility 
Determination,'' and FERC-512, ``Preliminary Permit.''
    15. Action: Revisions to FERC-505 and FERC-512.
    16. OMB Control Nos.: 1902-0115 (FERC-505) and 1902-0073 (FERC-
512).
    17. Respondents: Municipalities, businesses, private citizens, and 
for-profit and not-for-profit institutions.
    18. Necessity of Information: The revised regulations implement the 
Hydropower Efficiency Act's amendments to preliminary permits, small 
conduit hydroelectric facilities, and small hydroelectric power 
projects, and the Act's addition of qualifying conduit hydropower 
facilities. The revised regulations for the most part affect only the 
number of entities that would file applications with the Commission in 
addition to imposing two new information collection requirements.
    19. The new requirement for a respondent requesting to surrender a 
small conduit exemption on federal lands to notify the respective 
federal land agency is necessary for the Commission to carry out its 
responsibilities under the FPA, as amended by the Hydropower Efficiency 
Act. The information provided to the respective federal land agency 
will help inform the agency of activities occurring on federal lands or 
reservations under the agency's jurisdiction.
    20. The new requirement to file a notice of intent to construct a 
qualifying conduit hydropower facility with the Commission is necessary 
to carry out

[[Page 59108]]

the Commission's responsibilities under section 30(a) of the FPA, as 
amended by the Hydropower Efficiency Act. The information provided to 
the Commission enables the Commission to review the features of the 
proposed project and make a determination on whether a proposed project 
is a qualifying conduit hydropower facility. As noted earlier, the 
Commission already complies with the Hydropower Efficiency Act by 
requiring entities requesting qualifying conduit facility 
determinations to file with the Commission a notice of intent to 
construct, which follows the procedural guidance provided on the 
Commission's Web site.
    21. Internal Review: The Commission has reviewed the 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.
    22. Comments: The revised information collection requirements will 
not be effective or enforceable until OMB approves the information 
collection changes described in this order. The Commission, however, 
will continue to use its existing regulations and procedures available 
on its Web site to accept requests for two-year extensions of 
preliminary permits, applications for non-municipal small conduit 
exemptions with installed capacity greater than 15 MW and up to 40 MW, 
applications for small conduit exemptions located on federal lands, 
applications for small hydroelectric power project exemptions greater 
than 5 MW and up to 10 MW, and notices of intent to construct 
qualifying conduit hydropower facilities.
    23. The Commission solicits comments on the Commission's need for 
this information; whether the information will have practical utility; 
the accuracy of provided burden estimates; ways to enhance the quality, 
utility, and clarity of the information to be collected; and any 
suggested methods for minimizing the respondent's burden, including the 
use of automated information techniques. Comments are due within 60 
days of the date this order is published in the Federal Register. After 
receipt and analysis of public comments, the Commission will issue a 
second notice in this docket requesting public comment, and will submit 
the reporting requirements to OMB for approval.
    24. 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 phone (202) 502-8663, or by email 
to DataClearance@ferc.gov.
    25. Comments concerning the information collections in this Final 
Rule and the associated burden estimates should be sent to the 
Commission and reference Docket No. RM14-22-000. The Commission 
encourages comments to be filed electronically via the eFiling link on 
the Commission's Web site at http://www.ferc.gov. Commenters that are 
not able to file comments electronically should send an original of 
their comments to: Federal Energy Regulatory Commission, Secretary of 
the Commission, 888 First Street NE., Washington, DC 20426.

III. Environmental Analysis

    26. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\21\ 
Excluded from this requirement are rules that are clarifying, 
corrective, or procedural, or that do not substantially change the 
effect of legislation or the regulations being amended.\22\ This Final 
Rule amends the Commission's regulations to conform to recent 
legislation and corrects grammatical and clerical errors; and does not 
substantially change the effect of the underlying legislation or 
regulations being revised.
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    \21\ Regulations Implementing the National Environmental Policy 
Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. 
& Regs., Regulations Preambles 1986-1990 ] 30,783 (1987).
    \22\ 18 CFR 380.4(a)(2)(ii) (2014).
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IV. Regulatory Flexibility Act

    27. The Regulatory Flexibility Act of 1980 (RFA) \23\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities.
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    \23\ 5 U.S.C. 601-612 (2012).
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    28. However, final rules promulgated without the publication of a 
general notice of proposed rulemaking under section 553 of the 
Administrative Procedure Act (APA) \24\ are exempt from the RFA's 
requirements.\25\ Section 553(b)(3)(A) of the APA states that final 
rules that are interpretive rules may be published without general 
notice of proposed rulemaking. Interpretive rules are defined as rules 
that ``generally interpret the intent expressed by Congress'' where an 
agency ``does not insert its own judgments in implementing a rule, and 
simply regurgitates statutory language.'' \26\ They are an ``agency's 
reading of a statute'' that do not ``intend to create new rights or 
duties, but only remind[] affected parties of existing duties.'' \27\
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    \24\ 5 U.S.C. 553 (2012).
    \25\ 5 U.S.C. 604(a) (2012).
    \26\ Small Business Administration, Office of Advocacy, A Guide 
for Government Agencies: How to Comply with the Regulatory 
Flexibility Act 9 (May 2012), available at http://www.sba.gov/sites/
default/files/rfaguide05120.pdf.
    \27\ Orengo Caraballo v. Reich, 11 F.3d 186, 195 (D.C. Cir. 
1993).
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    29. This Final Rule is an interpretive rule because it modifies the 
Commission's regulations to conform to the Hydropower Efficiency Act. 
It does not create new rights or duties. Rather, it reminds affected 
parties of existing duties required by the Hydropower Efficiency Act, 
with which the Commission and non-agency entities have complied since 
the Act's enactment.

V. Document Availability

    30. 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) and 
in the Commission's Public Reference Room during normal business hours 
(8:30 a.m. to 5:00 p.m. Eastern Time) at 888 First Street NE., Room 2A, 
Washington, DC 20426.
    31. 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.
    32. User assistance is available for eLibrary and the Commission's 
Web site during normal business hours from FERC Online Support at (202) 
502-6652 (toll free at 1-866-208-3676) or by 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.

VI. Effective Date and Congressional Notification

    33. These regulations are effective February 23, 2015. The 
Commission has determined, with the concurrence of the

[[Page 59109]]

Administrator of the Office of Information and Regulatory Affairs of 
OMB, that this rule is not a ``major rule'' as defined in section 351 
of the Small Business Regulatory Enforcement Fairness Act of 1996.\28\ 
This rule is being submitted to the Senate, House, and Government 
Accountability Office.
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    \28\ 5 U.S.C. 804(2) (2012).
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List of Subjects

18 CFR Part 4

    Administrative practice and procedure, Electric power, Reporting 
and recordkeeping requirements.

18 CFR Part 380

    Environmental impact statements, Reporting and recordkeeping 
requirements.

    By the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.

    In consideration of the foregoing, the Commission is amending Parts 
4 and 380, Chapter I, Title 18, Code of Federal Regulations, as 
follows.

PART 4--LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION OF PROJECT 
COSTS

0
1. The authority citation for Part 4 continues to read as follows:

    Authority:  16 U.S.C. 791a-825v, 2601-2645; 42 U.S.C. 7101-7352.


0
2. Amend Sec.  4.30 as follows:
0
a. Revise paragraph (b)(4)(ii);
0
b. Revise paragraph (b)(8);
0
c. Revise paragraph (b)(20);
0
d. Redesignate paragraphs (b)(25) through (b)(30) as (b)(27) through 
(b)(32); and redesignate paragraphs (b)(21) through (b)(24) as (b)(22) 
through (b)(25);
0
e. Add paragraph (b)(21);
0
f. Revise redesignated paragraph (b)(24);
0
g. Add paragraph (b)(26);
0
h. Revise redesignated paragraph (b)(30);
0
i. Revise the introductory text of redesignated paragraph (b)(31).
    The revisions and additions read as follows:


Sec.  4.30  Applicability and definitions.

* * * * *
    (b) * * *
    (4) * * *
    (ii) Dam, for the purposes of provisions governing an application 
for exemption of a small conduit hydroelectric facility or a notice of 
intent to construct a qualifying conduit hydropower facility, means any 
structure that impounds water.
* * * * *
    (8) Federal lands, for the purposes of provisions governing an 
application for exemption of a small conduit hydroelectric facility or 
a small hydroelectric power project, means any lands to which the 
United States holds fee title.
* * * * *
    (20) Non-Federal lands, for the purposes of provisions governing 
application for exemption of a small conduit hydroelectric facility or 
a small hydroelectric power project, means any lands except lands to 
which the United States holds fee title.
    (21) Non-federally owned conduit, for the purposes of provisions 
governing the notice of intent to construct qualifying conduit 
hydropower facilities, means any conduit except a conduit to which the 
United States holds fee title.
* * * * *
    (24) Qualified exemption applicant, means any person who meets the 
requirements specified in Sec.  4.31(c)(2) with respect to a small 
hydroelectric power project for which exemption from licensing is 
sought.
* * * * *
    (26) Qualifying conduit hydropower facility, means a facility, not 
including any dam or impoundment, that is not required to be licensed 
under Part I of the FPA because it is determined to meet the following 
criteria:
    (i) Generates electric power using only the hydroelectric potential 
of a non-federally owned conduit;
    (ii) Has an installed capacity that does not exceed 5 megawatts 
(MW); and,
    (iii) Was not licensed or exempted from the licensing requirements 
of Part I of the FPA on or before August 9, 2013.
* * * * *
    (30) Small conduit hydroelectric facility, means an existing or 
proposed hydroelectric facility that is constructed, operated, or 
maintained for the generation of electric power, and includes all 
structures, fixtures, equipment, and lands used and useful in the 
operation or maintenance of the hydroelectric facility, but excludes 
the conduit on which the hydroelectric facility is located and the 
transmission lines associated with the hydroelectric facility and 
which:
    (i) Utilizes for electric power generation the hydroelectric 
potential of a conduit;
    (ii) Has an installed generating capacity that does not exceed 40 
MW;
    (iii) Is not an integral part of a dam;
    (iv) Discharges the water it uses for power generation either:
    (A) Into a conduit;
    (B) Directly to a point of agricultural, municipal, or industrial 
consumption; or
    (C) Into a natural water body if a quantity of water equal to or 
greater than the quantity discharged from the hydroelectric facility is 
withdrawn from that water body downstream into a conduit that is part 
of the same water supply system as the conduit on which the 
hydroelectric facility is located; and
    (v) Does not rely upon construction of a dam, which construction 
will create any portion of the hydrostatic head that the facility uses 
for power generation unless that construction would occur for 
agricultural, municipal, or industrial consumptive purposes even if 
hydroelectric generating facilities were not installed.
    (31) Small hydroelectric power project, means any project in which 
capacity will be installed or increased after the date of application 
under subpart K of this chapter, which will have a total installed 
capacity of not more than 10 MW, and which:
* * * * *


Sec.  4.31  [Amended]

0
3. Revise paragraphs (b) and (c)(2) of Sec.  4.31 to read as follows:


Sec.  4.31  Initial or competing application: who may file.

* * * * *
    (b) Application for exemption of a small conduit hydroelectric 
facility--(1) Exemption from provisions other than licensing--(i) Only 
federal lands involved. If only rights to use or occupy federal lands 
would be necessary to develop and operate the proposed small conduit 
hydroelectric facility, any citizen, association of citizens, domestic 
corporation, municipality, or state may apply for exemption of a small 
conduit hydroelectric facility from provisions of Part I of the Federal 
Power Act, other than licensing provisions.
    (ii) Some non-federal lands involved. If real property interests in 
any non-federal lands would be necessary to develop and operate the 
proposed small conduit hydroelectric facility, any citizen, association 
of citizens, domestic corporation, municipality, or state that has all 
of the real property interests in the lands necessary to develop and 
operate that project, or an option to obtain those interests, may apply 
for exemption of a small conduit hydroelectric facility from provisions 
of Part I of the Federal Power Act, other than licensing provisions.

[[Page 59110]]

    (2) Exemption from licensing--(i) Only federal lands involved. If 
only rights to use or occupy federal lands would be necessary to 
develop and operate the proposed small conduit hydroelectric facility, 
any citizen, association of citizens, domestic corporation, 
municipality, or state may apply for exemption of that facility from 
licensing under Part I of the Federal Power Act.
    (ii) Some non-federal lands involved. If real property interests in 
any non-federal lands would be necessary to develop and operate the 
proposed small conduit hydroelectric facility, any citizen, association 
of citizens, domestic corporation, municipality, or state who has all 
the real property interests in the lands necessary to develop and 
operate the small conduit hydroelectric facility, or an option to 
obtain those interests, may apply for exemption of that facility from 
licensing under Part I of the Federal Power Act.
    (c) * * *
    (2) Exemption from licensing-- (i) Only Federal lands involved. If 
only rights to use or occupy Federal lands would be necessary to 
develop and operate the proposed small hydroelectric power project, any 
citizen, association of citizens, domestic corporation, municipality, 
or state may apply for exemption of that project from licensing.
    (ii) Some non-Federal lands involved. If real property interests in 
any non-Federal lands would be necessary to develop and operate the 
proposed small hydroelectric power project, any citizen, association of 
citizens, domestic corporation, municipality, or state who has all of 
the real property interests in non-Federal lands necessary to develop 
and operate that project, or an option to obtain those interests, may 
apply for exemption of that project from licensing.


Sec.  4.34  [Amended]

0
4. Revise paragraph (f)(2) of Sec.  4.34 to read as follows:


Sec.  4.34  Hearings on applications; consultation on terms and 
conditions; motions to intervene; alternative procedures.

* * * * *
    (f) * * *
    (2) Exemption conditions. Any exemption from licensing issued for 
conduit facilities, as provided in section 30(b) of the Federal Power 
Act, or for small hydroelectric power projects having a proposed 
installed capacity of 10,000 kilowatts or less, as provided in section 
405(d) of the Public Utility Regulatory Policies Act of 1978, as 
amended, shall include such terms and conditions as the fish and 
wildlife agencies may timely determine are appropriate to carry out the 
responsibilities specified in section 30(c) of the Federal Power Act.
* * * * *


Sec.  4.38  [Amended]

0
5. In Sec.  4.38(a)(1), remove the words ``United States lands'' and 
add, in their place, the words ``federal lands''.


Sec.  4.39  [Amended]

0
6. In Sec.  4.39(d), remove the reference ``Sec.  4.31(c)'' and add, in 
its place, the reference ``Sec.  4.32(d)''.


Sec.  4.82  [Amended]

0
7. In Sec.  4.82:
0
a. In paragraph (a), remove the word ``three'' and add, in its place, 
the word ``five''.
0
b. In paragraph (a), remove the reference ``Sec.  4.81(b), (c), (d), 
and (e)'' and add, in its place, the reference ``Sec.  4.81(b), (c), 
and (d)''.
0
c. In paragraph (c), remove the word ``three'' and add, in its place, 
the word ``five''.


Sec.  4.90  [Amended]

0
8. Revise Sec.  4.90 to read as follows:


Sec.  4.90  Applicability and purpose.

    This subpart implements section 30(b) of the Federal Power Act and 
provides procedures for obtaining an exemption for constructed or 
unconstructed small conduit hydroelectric facilities, as defined in 
Sec.  4.30(b)(30), from all or part of the requirements of Part I of 
the Federal Power Act, including licensing, and the regulations issued 
under Part I.


Sec.  4.92  [Amended]

0
9. Amend Sec.  4.92 as follows:
0
a. Revise paragraphs (a)(1) and (3);
0
b. In paragraph (b), remove the two references to ``Sec.  4.30(b)(28)'' 
and add, in their place, the reference ``Sec.  4.30(b)(30)'';
0
c. In paragraph (b), remove the three references to ``Sec.  
4.30(b)(28)(v)'' and add, in their place, the reference ``Sec.  
4.30(b)(30)(iv)'';
0
d. In paragraph (b), in the phrase ``The exact name and business 
address of each applicant is:'' correct the word ``is'' to read 
``are'';
0
e. In paragraph (b), in the phrase ``The exact name and business 
address of each person authorized to act as agent for the applicant in 
this application is:'' correct the word ``is'' to read ``are'';
0
f. In paragraph (b), remove the phrase ``as appropriate), as 
appropriate]'' and add in its place ``as appropriate)]'';
0
g. Revise paragraphs (c)(9) and (11).
    The revisions read as follows:


Sec.  4.92  Contents of exemption application.

    (a) * * *
    (1) An introductory statement, including a declaration that the 
facility for which application is made meets the requirements of Sec.  
4.30(b)(30), or if the facility qualifies but for the discharge 
requirement of Sec.  4.30(b)(30)(iv), the introductory statement must 
identify that fact and state that the application is accompanied by a 
petition for waiver of Sec.  4.30(b)(30)(iv) filed pursuant to Sec.  
385.207 of this chapter;
* * * * *
    (3) If the project structures would use or occupy any lands other 
than federal lands, an appendix containing documentary evidence showing 
that the applicant has the real property interests required under Sec.  
4.31(b); and
* * * * *
    (c) * * *
    (9) If the hydroelectric facility discharges directly into a 
natural body of water and a petition for waiver of Sec.  
4.30(b)(30)(iv) has not been submitted, evidence that a quantity of 
water equal to or greater than the quantity discharged from the 
hydroelectric facility is withdrawn from that water body downstream 
into a conduit that is part of the same water supply system as the 
conduit on which the hydroelectric facility is located.
* * * * *
    (11) A description of the nature and extent of any construction of 
a dam that would occur in association with construction of the proposed 
small conduit hydroelectric facility, including a statement of the 
normal maximum surface area and normal maximum surface elevation of any 
existing impoundment before and after that construction; and any 
evidence that the construction of the dam would occur for agricultural, 
municipal, or industrial consumptive purposes even if hydroelectric 
generating facilities were not installed.
* * * * *


Sec.  4.93  [Amended]

0
10. In Sec.  4.93(a), remove the reference ``Sec.  4.30(b)(28)(v)'' and 
add, in its place, the reference ``Sec.  4.30(b)(30)(iv).''


Sec.  4.94  [Amended]

0
11. Amend Sec.  4.94 as follows:
0
a. Redesignate paragraphs (d) through (f) as (e) through (g);
0
b. In redesignated paragraphs (e) through (g), revise the italic 
paragraph headings; and
0
c. Add paragraph (d) to read as follows:

[[Page 59111]]

Sec.  4.94  Standard terms and conditions of exemption.

* * * * *
    (d) Article 4. This exemption does not confer any right to use or 
occupy any federal lands that may be necessary for the development or 
operation of the project. Any right to use or occupy any federal lands 
for those purposes must be obtained from the administering federal land 
agencies. The Commission may accept a license application submitted by 
any qualified license applicant and revoke this exemption, if any 
necessary right to use or occupy federal lands for those purposes has 
not been obtained within one year from the date on which this exemption 
was granted.
    (e) Article 5. * * *
    (f) Article 6. * * *
    (g) Article 7. * * *


Sec.  4.95  [Amended]

0
12. In Sec.  4.95, add paragraph (e) to read as follows:


Sec.  4.95  Surrender of exemption.

* * * * *
    (e) Where occupancy of federal lands or reservations has been 
permitted by a federal agency having supervision over such lands, the 
exemption holder must concurrently notify that agency of the petition 
to surrender and of the steps that will be taken to restore the 
affected federal lands or reservations.

Subpart K--Exemption of Small Hydroelectric Power Projects of 10 
Megawatts or Less

0
13. Revise the heading of Subpart K, to read as set forth above.


Sec.  4.101  [Amended]

0
14. In Sec.  4.101, remove the reference ``Sec.  4.30(b)(29)'' and add, 
in its place, the reference ``Sec.  4.30(b)(31)''.


Sec.  4.102  [Amended]

0
15. In Sec.  4.102(e), remove the words ``United States lands'' and 
add, in their place, the words, ``federal lands''.


Sec.  4.106  [Amended]

0
16. In Sec.  4.106(h), remove the end punctuation ``:'' and add, in its 
place, a period.


Sec.  4.107  [Amended]

0
17. In Sec.  4.107(b)(1), remove the number ``5'' and add, in its 
place, the number ``10''.
0
18. Add new Subpart N to read as follows:
Subpart N--Notice of Intent To Construct Qualifying Conduit Hydropower 
Facilities
Sec.
4.400 Applicability and purpose.
4.401 Contents of notice of intent to construct a qualifying conduit 
hydropower facility.

Subpart N--Notice of Intent To Construct Qualifying Conduit 
Hydropower Facilities


Sec.  4.400  Applicability and purpose.

    This part implements section 30(a) of the Federal Power Act, as 
amended by the Hydropower Regulatory Efficiency Act of 2013, and 
provides procedures for obtaining a determination from the Commission 
that the facility to be constructed is a qualifying conduit hydropower 
facility, as defined in Sec.  4.30(b)(26), and thus, is not required to 
be licensed under Part I of the FPA.


Sec.  4.401  Contents of notice of intent to construct a qualifying 
conduit hydropower facility.

    (a) A notice of intent to construct a qualifying conduit hydropower 
facility submitted under this subpart must contain the following:
    (1) An introductory statement as described in paragraph (b) of this 
section;
    (2) A statement that the proposed project will use the 
hydroelectric potential of a non-federally owned conduit as set forth 
in paragraph (c) of this section;
    (3) A statement that the proposed facility has not been licensed or 
exempted from the licensing requirements of Part I of the FPA, on or 
before August 9, 2013, the date of enactment of the Hydropower 
Regulatory Efficiency Act, as set forth in in paragraph (d) of this 
section;
    (4) A description of the proposed facility as set forth in 
paragraph (e) of this section;
    (5) Project drawings as set forth in paragraph (f) of this section;
    (6) If applicable, the preliminary permit project number for the 
proposed facility; and,
    (7) Verification as set forth in paragraph (g) of this section.
    (b) Introductory statement. The introductory statement must be set 
forth in the following format:

BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION

NOTICE OF INTENT TO CONSTRUCT QUALIFYING CONDUIT HYDROPOWER FACILITY

    [Name of applicant] applies to the Federal Energy Regulatory 
Commission for a determination that the [facility name] is a qualifying 
conduit hydropower facility, meeting the requirements of section 30(a) 
of the Federal Power Act, as amended by section 4 of the Hydropower 
Regulatory Efficiency Act of 2013.
    The location of the facility is:

State or Territory:----------------------------------------------------

County:----------------------------------------------------------------

Township or nearby town:-----------------------------------------------

Water source:----------------------------------------------------------

    The exact name and business address of the applicant(s) are:

Applicant's Name:------------------------------------------------------

Address:---------------------------------------------------------------

Telephone Number:------------------------------------------------------

Email Address:---------------------------------------------------------

    The exact name and business address of each person authorized to 
act as an agent for the applicant(s) in this notice of intent are:

Name of Agent:---------------------------------------------------------

Address:---------------------------------------------------------------

Telephone Number:------------------------------------------------------

Email Address:---------------------------------------------------------

    [Name of applicant] is [a citizen of the United States, an 
association of citizens of the United States, a municipality, State, or 
a corporation incorporated under the laws of (specify the United States 
or the state of incorporation), as appropriate].
    (c) Non-Federal Conduit Statement. The non-federal conduit 
statement must be set forth in the following format:
    The [facility name] will use the hydroelectric potential of a non-
federally owned conduit.
    (d) Original facility statement. The original facility statement 
must be set forth in the following format:
    The [facility name] has not been licensed or exempted from the 
licensing requirements of Part I of the FPA, on or before August 9, 
2013, the date of enactment of the Hydropower Regulatory Efficiency 
Act.
    (e) Description of proposed facility. Description of proposed 
facility must include:
    (1) A detailed description of any conduits and associated 
consumptive water supply facilities, intake facilities, powerhouses, 
and any other structures associated with the facility;
    (2) The purposes for which the conduit is used;
    (3) The number, type, generating capacity (kW or MW), and estimated 
average annual generation (kWh or MWh) of the generating units and 
brief description of any plans for future units; and,
    (4) A description of the nature and extent of the dam that would 
occur in association with construction of the proposed qualifying 
conduit hydroelectric facility, including a statement of the normal 
maximum surface area and normal maximum

[[Page 59112]]

surface elevation of any existing impoundment before and after that 
construction; and any evidence that the construction of the dam would 
occur for agricultural, municipal, or industrial consumptive purposes 
even if the hydropower generating facilities were not installed.
    (f) Drawings, maps, diagrams. Include a set of drawings/maps/
diagrams showing the structures and equipment of the hydropower 
facility in relation to the existing conduit. Drawings of the facility 
must include:
    (1) A Plan View (overhead view) drawing of the proposed hydropower 
facilities, which includes the following:
    (i) The hydropower facilities, including all intake and discharge 
pipes, and how those pipes connect to the conduit;
    (ii) The portion of the conduit in proximity to the facilities on 
which the hydropower facilities will be located;
    (iii) The dimensions (e.g., length, width, diameter) of all 
facilities, intakes, discharges, and conduits;
    (iv) Identification of facilities as either existing or proposed;
    (v) The flow direction labelled on all intakes, discharges, and 
conduits; and,
    (2) A Location Map showing the facilities and their relationship to 
the nearest town, which includes the following:
    (i) The powerhouse location labeled, and its latitude and longitude 
identified; and,
    (ii) The nearest town, if possible, or other permanent monuments or 
objects, such as roads or other structures that can be easily noted on 
the map and identified in the field.
    (3) If a dam would be constructed in association with the facility, 
a profile drawing showing the conduit, and not the dam, creates the 
hydroelectric potential.
    (g) Verification. Provide verification using either a sworn, 
notarized statement set forth in paragraph (g)(1) of this section or an 
unsworn statement set forth in paragraph (g)(2) of this section.
    (1) As to any facts alleged in the notice of intent to construct or 
other materials filed, be subscribed and verified under oath in the 
form set forth below by the person filing, an officer thereof, or other 
person having knowledge of the matters set forth. If the subscription 
and verification is by anyone other than the person filing or an 
officer thereof, it shall include a statement of the reasons therefor.
    This (notice of intent to construct, etc.) is executed in the:

State of:--------------------------------------------------------------

County of:-------------------------------------------------------------

by:

(Name)-----------------------------------------------------------------

(Address)--------------------------------------------------------------

being duly sworn, depose(s) and say(s) that the contents of this 
(notice of intent to construct, etc.) are true to the best of (his or 
her) knowledge or belief. The undersigned applicant(s) has (have) 
signed the (notice of intent to construct, etc.) this 
day of 
, 
20.
By:--------------------------------------------------------------------

    Subscribed and sworn to before me, a 
 [Notary Public, 
or title of other official authorized by the state to notarize 
documents, as appropriate] of the State of 
this day of 
, 
20.

    /SEAL/[if any]

-----------------------------------------------------------------------

    (Notary Public, or other authorized official)
    (2) I declare (or certify, verify, or state) under penalty of 
perjury that the foregoing is true and correct. Executed on 
[date].

-----------------------------------------------------------------------

    (Signature)

PART 380--REGULATIONS IMPLEMENTING THE NATIONAL ENVIRONMENTAL 
POLICY ACT

0
19. 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.


Sec.  380.4  [Amended]

0
20. In Sec.  380.4(a)(14), remove the reference ``Sec.  4.30(b)(26)'' 
and add, in its place, the reference ``Sec.  4.30(b)(30)''.


Sec.  380.5  [Amended]

0
21. In Sec.  380.5(b)(7):
0
a. Remove the reference ``Sec.  4.30(b)(29)'' and add, in its place, 
the reference ``Sec.  4.30(b)(31)''.
0
b. Remove the number ``5'' and add, in its place, the number ``10''.

[FR Doc. 2014-23204 Filed 9-30-14; 8:45 am]
BILLING CODE 6717-01-P


