[Federal Register Volume 88, Number 10 (Tuesday, January 17, 2023)]
[Proposed Rules]
[Pages 2770-2794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27716]



[[Page 2769]]

Vol. 88

Tuesday,

No. 10

January 17, 2023

Part II





Department of Energy





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Federal Energy Regulatory Commission





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18 CFR Parts 50 and 380





Applications for Permits To Site Interstate Electric Transmission 
Facilities; Proposed Rule

  Federal Register / Vol. 88 , No. 10 / Tuesday, January 17, 2023 / 
Proposed Rules  

[[Page 2770]]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 50 and 380

[Docket No. RM22-7-000]


Applications for Permits To Site Interstate Electric Transmission 
Facilities

AGENCY: Federal Energy Regulatory Commission.

ACTION: Notice of proposed rulemaking.

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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.
    [cir] Mail via U.S. Postal Service only: Addressed to: Federal 
Energy Regulatory Commission, Office of the Secretary, 888 First Street 
NE, Washington, DC 20426.
    [cir] 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, [email protected].
Cleo Deschamps (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-8377, [email protected].

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

 
                                                               Paragraph
                                                                 Nos.
 
I. Background...............................................           2
    A. Energy Policy Act of 2005 and FPA Section 216........           2
    B. Order No. 689........................................           9
    C. Piedmont & California Wilderness Judicial Decisions..          11
    D. IIJA Amendments to FPA Section 216...................          14
II. Discussion..............................................          17
    A. Commission Jurisdiction and State Siting Proceedings.          17
        1. IIJA Amendments to FPA Section 216(b)(1)(C)......          18
        2. Commencement of Pre-Filing.......................          19
    B. Eminent Domain Authority and Applicant Efforts To              24
     Engage With Landowners and Other Stakeholders..........
    C. Environmental Justice Public Engagement Plan.........          30
    D. Other Proposed Revisions to 18 CFR Part 50...........          32
        1. Section 50.1--Definitions........................          32
        2. Section 50.3--Filing and Formatting Requirements.          34
        3. Section 50.4--Stakeholder Participation..........          35
        4. Section 50.5--Pre-Filing Procedures..............          40
        5. Section 50.6--General Content of Applications....          42
        6. Section 50.7--Application Exhibits...............          44
        7. Section 50.11--General Permit Conditions.........          46
        8. Proposed Clarifying Revisions to 18 CFR Part 50..          48
    E. Regulations Implementing NEPA........................          49
        1. Tribal Resources Resource Report.................          63
        2. Environmental Justice Resource Report............          65
        3. Air Quality and Environmental Noise Resource               68
         Report.............................................
        4. Visual Resources.................................          72
        5. Additional Proposed Revisions to 18 CFR 380.16...          74
        6. Proposed Revisions to 18 CFR 380.13 and 380.14...          83
III. Information Collection Statement.......................          84
IV. Environmental Analysis..................................          98
V. Regulatory Flexibility Act...............................          99
VI. Comment Procedures......................................         103
VII. Document Availability..................................         106
 

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.\1\ 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

[[Page 2771]]

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.
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    \1\ Public Law 117-58, sec. 40105, 135 Stat. 429 (2021).
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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) \2\ 
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.
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    \2\ Public Law 109-58, sec. 1221, 119 Stat. 594 (2005) (amended 
2021).
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    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; 
\3\ (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; \4\ 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.\5\
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    \3\ 16 U.S.C. 824p(b)(1)(A) (2018).
    \4\ Id. 824p(b)(1)(B) (2018).
    \5\ Id. 824p(b)(1)(C) (2018).
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    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.\6\
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    \6\ 16 U.S.C. 824p(b)(2)-(6) (as amended by IIJA section 1221).
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    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).\7\ Federal and State-owned land was expressly 
excluded from the purview of section 216(e) and thus could not be 
acquired via eminent domain.\8\
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    \7\ Id. 824p(e)(1).
    \8\ Id.
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    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.\9\ 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.
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    \9\ Under FPA section 216(h)(6)(A), if any agency has denied a 
Federal authorization required for a transmission facility, or has 
failed to act by the deadline established by the Secretary of DOE, 
the applicant or any State in which the facility would be located 
may file an appeal with the President.
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    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).\10\ 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.\11\
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    \10\ See DOE Delegation Order No. 00-004.00A.
    \11\ While Congress has provided the authority to establish 
prompt and binding milestones and deadlines for the review of, and 
Federal authorization decisions relating to, facilities proposed 
under section 216, 16 U.S.C. 824p(h)(4)(A), efficient processing of 
applications will depend upon agencies complying with the 
established milestones and deadlines.
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    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.\12\ 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.
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    \12\ Regulations for Filing Applications for Permits to Site 
Interstate Elec. Transmission Facilities, Order No. 689, 71 FR 69440 
(Dec. 1, 2006), 117 FERC ] 61,202 (2006) (Order No. 689 Final Rule), 
reh'g denied, 119 FERC ] 61,154 (2007) (Order No. 689 Rehearing 
Order).
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    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

[[Page 2772]]

application for more than one year.\13\ 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.\14\
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    \13\ Order No. 689 Final Rule, 117 FERC ] 61,202 at PP 24-31; 
Order No. 689 Rehearing Order, 119 FERC ] 61,154 at PP 7-23.
    \14\ Order No. 689 Final Rule, 117 FERC ] 61,202 at P 26; Order 
No. 689 Rehearing Order, 119 FERC ] 61,154 at P 11.
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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,\15\ 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.\16\ 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.\17\
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    \15\ 558 F.3d 304 (4th Cir. 2009), cert. denied, 558 U.S. 1147 
(2010) (Piedmont).
    \16\ Id. at 313.
    \17\ Id. at 319, 320.
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    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.\18\ In August 2006, DOE had issued a 
Congestion Study, which identified two critically congested areas in 
the Mid-Atlantic and Southern California.\19\ 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.\20\ 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.\21\
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    \18\ 631 F.3d 1072 (9th Cir. 2011) (California Wilderness).
    \19\ Id. at 1081 (citing National Electric Transmission 
Congestion Study, 71 FR 45047 (Aug. 8, 2006)).
    \20\ Id. at 1083 (citing National Electric Transmission 
Congestion Report, 72 FR 56992 (Oct. 5, 2007)).
    \21\ Id. at 1096, 1106.
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    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.\22\ 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.\23\
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    \22\ 16 U.S.C. 824p(b)(1)(C) (as amended by IIJA section 1221).
    \23\ Id. 824p(b)(1)(C)(iii).
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    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.\24\ 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.\25\
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    \24\ Id. 824p(e)(1).
    \25\ See id.
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    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 
Sec.  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.\26\ Therefore, the 
Commission proposes to revise Sec.  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, Sec.  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 Sec.  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.
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    \26\ See supra P 14.
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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.\27\ As explained in 
Order No. 689, the statute

[[Page 2773]]

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.\28\ Thus, the Commission has recognized 
that our pre-filing process can occur at the same time as simultaneous 
State proceedings.\29\
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    \27\ Order No. 689 Final Rule, 117 FERC ] 61,202 at P 19.
    \28\ Id.
    \29\ Id.
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    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),\30\ the pre-filing process would not commence 
until one year after the relevant State applications have been 
filed.\31\ 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.\32\ 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.\33\
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    \30\ In Order No. 689, the Commission explained that in all 
other instances, the pre-filing process may be commenced at any 
time. Id. P 21 n.14.
    \31\ Id. P 21.
    \32\ Id.
    \33\ Id.
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    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 
Sec. Sec.  50.6 and 50.7,\34\ and begin our coordination with other 
agencies as required under section 216(h).\35\ 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.
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    \34\ Id.
    \35\ 16 U.S.C. 824p(h); DOE Delegation Order No. 00-004.00A.
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    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.\36\ Therefore, the Commission proposes to 
supplement the existing landowner and stakeholder participation 
provisions in part 50 of its regulations.
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    \36\ 16 U.S.C. 824p(e)(1) (as amended by IIJA section 1221).
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    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 Sec.  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 Sec.  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 Sec.  50.4 by 
adding a new Sec.  50.12. Under proposed Sec.  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 
Sec.  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 Sec.  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

[[Page 2774]]

prepared by, or on behalf of, the applicant for that landowner's 
property.
    27. Under proposed Sec.  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 Sec.  50.5(c), 
an affirmative statement indicating its intent to comply with the 
Applicant Code of Conduct. Under proposed Sec.  50.12(b)(2), such an 
applicant must, as part of the monthly status reports required under 
Sec.  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 Sec.  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 Sec.  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 Sec.  
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.\37\ The term also includes, but may not be limited to, 
minority populations, low-income populations, or indigenous 
peoples.\38\ Applicants will identify potential environmental justice 
communities using the identification methods consistent with current 
Commission practice.\39\ 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); \40\ (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;'' \41\ (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;'' \42\ 
and (4) the Environmental Protection Agency's (EPA) Promising Practices 
report.\43\ 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,

[[Page 2775]]

including environmental justice communities, at the Commission.\44\
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    \37\ E.O. 14008, 86 FR 7619, Sec.  219 (Jan. 27, 2021).
    \38\ See EPA, EJ 2020 Glossary (Aug. 18, 2022), https://www.epa.gov/environmentaljustice/ej-2020-glossary.
    \39\ To identify potential environmental justice communities, 
Commission staff uses current U.S. Census American Community Survey 
data for the race, ethnicity, and poverty data at the State, county, 
and block group level. As recommended in Promising Practices, the 
Commission currently uses the fifty percent and the meaningfully 
greater analysis methods to identify minority populations. 
Specifically, a minority population is present where either: (1) the 
aggregate minority population of the block groups in the affected 
area exceeds 50 percent; or (2) the aggregate minority population in 
the block group affected is 10 percent higher than the aggregate 
minority population percentage in the county. Environmental 
Protection Agency (EPA), Promising Practices for EJ Methodologies in 
NEPA Reviews (Mar. 2016) (Promising Practices), https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_practices_document_2016.pdf. The Commission intends 
to review and incorporate any updated guidance from CEQ and EPA in 
our future analyses, as appropriate. Using Promising Practices' low-
income threshold criteria method, Commission staff currently 
identifies low-income populations as block groups where the percent 
of a low-income population in the identified block group is equal to 
or greater than that of the county. We recognize that CEQ and EPA 
are in the process of updating their guidance and recommendations 
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 update our methods 
for identifying potential environmental justice communities 
following review of any updated environmental justice guidance and 
recommendations from CEQ and EPA, as appropriate.
    \40\ E.O. 12898, 59 FR 7629 (Feb. 16, 1994). Minority 
populations are those groups that include: American Indian or 
Alaskan Native; Asian or Pacific Islander; Black, not of Hispanic 
origin; or Hispanic. CEQ, Environmental Justice: Guidance Under the 
National Environmental Policy Act at 25 (Dec. 1997) (CEQ's 
Environmental Justice Guidance), https://www.energy.gov/sites/default/files/nepapub/nepa_documents/RedDont/G-CEQ-EJGuidance.pdf.
    \41\ E.O. 14008, 86 FR 7619 (Jan. 27, 2021).
    \42\ E.O. 13985, 86 FR 7009, 7010-11 (Jan. 25, 2021).
    \43\ EPA, Promising Practices for EJ Methodologies in NEPA 
Reviews (Mar. 2016), https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_practices_document_2016.pdf (Promising 
Practices). The report includes guiding principles aimed at, among 
other things, early and meaningful engagement with minority 
populations, low-income populations, and other interested 
individuals, communities, and organizations in the NEPA process.
    \44\ FERC, Equity Action Plan (2022), https://www.ferc.gov/equity.
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    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 Sec.  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.\45\
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    \45\ We note that the Environmental Justice Resource Report, 
discussed further below, would require the applicant to describe any 
proposed mitigation measures intended to avoid or minimize impacts 
on environmental justice communities, including any community input 
received on the proposed mitigation measures and how that input 
informed such measures. See infra P 65.
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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.\46\ 
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.\47\ We also propose to add a definition for the 
term ``environmental justice community'' to assist applicant compliance 
with the requirement in proposed Sec.  50.4(a)(4) that an applicant 
develop and file an Environmental Justice Public Engagement Plan.\48\ 
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.
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    \46\ See, e.g., 18 CFR 4.30(b)(10) (2021) (defining ``Indian 
Tribe'' in reference to an application for a license or exemption 
for a hydropower project) and 18 CFR 157.1 (defining ``Indian 
Tribe'' in reference to an application for a certificate of public 
convenience and necessity for a natural gas pipeline project).
    \47\ 25 CFR 83.6(a) (2021).
    \48\ See supra PP 30-31.
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    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 Sec.  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, Sec.  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 Sec.  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.\49\
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    \49\ Supra PP 30-31.
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ii. Project Notification Requirements
    36. As described above, Sec.  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 Sec.  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

[[Page 2776]]

requirements that pertain to any pre-filing notice that is sent by mail 
or published in a newspaper (proposed Sec.  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 Sec.  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 Sec.  50.5(c)(8)) and, as described above, a statement 
indicating whether an applicant intends to comply with the Applicant 
Code of Conduct (proposed Sec.  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 Sec.  50.5(e)(3) and (4) to ensure consistency with 
the project notification requirements in Sec.  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).\50\ 
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 Sec.  50.7 (proposed Sec.  
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 Sec.  50.5(e)(7)).
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    \50\ FPA section 216(b)(4) requires the Commission to find that 
the proposed construction or modification of transmission facilities 
will significantly reduce transmission congestion in interstate 
commerce and protects or benefits consumers.
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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 Sec.  
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 Sec.  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 Sec.  
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.\51\ As discussed above, we also propose 
revisions to Sec.  50.6(e)(3) to ensure that the regulatory text tracks 
the IIJA's amendments to section 216(b)(1)(C).\52\
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    \51\ Transmission Plan. & Cost Allocation by Transmission Owning 
& Operating Public Utilities, Order No. 1000, 76 FR 49842 (Aug. 11, 
2011), 136 FERC ] 61,051, at P 482 n.374 (2011).
    \52\ Supra P 18.
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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 (Sec.  50.7(g)(1)(i)), line design 
features that minimize audible corona noise during rain or fog (Sec.  
50.7(g)(1)(vi)), and overhead and underground structures (Sec.  
50.7(g)(2)(ii)).
    45. The Commission also proposes revisions to Sec.  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 (Sec.  
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 (Sec.  50.7(h)(2)); and 
(3) require the analysis to identify how the proposed project will 
affect congestion on neighboring transmission systems (Sec.  
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).

[[Page 2777]]

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 Sec. Sec.  50.11(a) and (b). 
The proposed revision to Sec.  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 Sec.  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,\53\ 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.
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    \53\ See Limiting Authorizations to Proceed with Construction 
Activities Pending Rehearing, Order No. 871-B, 86 FR 26150 (May 13, 
2021), 175 FERC ] 61,098, order on reh'g, Order No. 871-C, 86 FR 
43077 (Aug. 6, 2021), 176 FERC ] 61,062 (2021).
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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: Sec.  380.3(c) (adding electric 
transmission projects to the list of project types for which applicants 
must provide environmental information), Sec.  380.5(b)(14) (adding 
electric transmission facilities to the list of project types for which 
the Commission will prepare an Environmental Assessment), Sec.  
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), Sec.  380.8 (designating the Office of Energy Projects as 
responsible for the preparation of environmental documents for electric 
transmission facilities), Sec.  380.10(a)(2)(iii) (clarifying that pre-
filing proceedings for electric transmission facilities are not open to 
motions to intervene), and Sec.  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.\54\
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    \54\ 18 CFR 380.16(c) (2021).
---------------------------------------------------------------------------

    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.\55\
---------------------------------------------------------------------------

    \55\ Id. 380.16(d).
---------------------------------------------------------------------------

    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.\56\
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    \56\ Id. 380.16(e).
---------------------------------------------------------------------------

    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).\57\
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    \57\ Id. 380.16(f).
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    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.\58\
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    \58\ Id. 380.16(g).
---------------------------------------------------------------------------

    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.\59\
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    \59\ Id. 380.16(h).
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    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.\60\
---------------------------------------------------------------------------

    \60\ Id. 380.16(i).
---------------------------------------------------------------------------

    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.\61\
---------------------------------------------------------------------------

    \61\ Id. 380.16(j).
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    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.\62\
---------------------------------------------------------------------------

    \62\ Id. 380.16(k).
---------------------------------------------------------------------------

    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.\63\
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    \63\ Id. 380.16(l).
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    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.\64\
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    \64\ Id. 380.16(m).
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    62. As explained above, the Fourth Circuit's 2009 Piedmont decision 
vacated Order No. 689's amendments to the Commission's NEPA regulations

[[Page 2778]]

because the court found that the Commission had failed to consult with 
CEQ prior to issuing the revised regulations.\65\ 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.
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    \65\ See supra P 11.
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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.\66\ 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.\67\ 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; 
\68\ provide available information on traditional cultural and 
religious properties; \69\ 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.\70\
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    \66\ 18 CFR 2.1c (2021).
    \67\ See id. Sec.  380.16(j)(5).
    \68\ Id. Sec.  380.16(j)(5)(i).
    \69\ Id.
    \70\ Id. Sec.  380.16(j)(5)(ii).
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    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 Sec.  
380.16(h). In addition to consolidating the existing requirements in a 
new resource report,\71\ we also propose to require an applicant to 
identify potentially-affected Tribes (proposed Sec.  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 Sec.  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 Sec.  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.
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    \71\ See proposed Sec. Sec.  380.16(h)(4)-(5).
---------------------------------------------------------------------------

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,\72\ 14008,\73\ and 13985,\74\ as described above, and relevant 
CEQ guidance \75\ and EPA's Promising Practices report \76\ on 
assessing impacts on environmental justice communities under NEPA.\77\ 
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 Sec.  
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 Sec.  380.16(i)(1)); \78\ 
describe the impacts of project construction, operation, and 
maintenance on environmental justice communities, including whether any 
impacts would be disproportionately high and adverse (proposed Sec.  
380.16(i)(2)); discuss cumulative impacts on environmental justice 
communities, including whether any cumulative impacts would be 
disproportionately high and adverse (proposed Sec.  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 Sec.  380.16(i)(4)).
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    \72\ E.O. 12898, 59 FR 7629 (Feb. 16, 1994). While the 
Commission is not one of the specified agencies in Executive Order 
12898, the Commission nonetheless intends to address environmental 
justice in its analysis, in accordance with our governing 
regulations and statutory duties. 16 U.S.C. 824p(b)(3); 18 CFR 
380.16(g) (2021) (requiring applicants to submit information about 
the socioeconomic impact area of a project for the Commission's 
consideration during NEPA review); see also FERC, Guidance Manual 
for Environmental Report Preparation at 4-76 to 4-82 (Feb. 2017), 
https://www.ferc.gov/sites/default/files/2020-04/guidance-manual-volume-1.pdf (providing guidance for preparing Resource Report 5--
Socioeconomics, including addressing project effects on 
environmental justice communities, for applications filed under the 
Natural Gas Act).
    \73\ E.O. 14008, 86 FR 7619 (Jan. 27, 2021).
    \74\ E.O. 13985, 86 FR 7009 (Jan. 25, 2021).
    \75\ CEQ's Environmental Justice Guidance, https://www.energy.gov/sites/default/files/nepapub/nepa_documents/RedDont/G-CEQ-EJGuidance.pdf. CEQ offers recommendations on how Federal 
agencies can provide opportunities for effective community 
participation in the NEPA process, including identifying potential 
effects and mitigation measures in consultation with affected 
communities and improving the accessibility of public meetings, 
crucial documents, and notices.
    \76\ See generally Promising Practices, https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_practices_document_2016.pdf.
    \77\ NEPA requires the Commission before taking an action, to 
analyze, disclose, and take a ``hard look'' at the potential 
environmental impacts of that action. See 42 U.S.C. 4332(2)(C); 
Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 
97 (1983) (discussing the twin aims of NEPA).
    \78\ As discussed, to identify environmental justice 
communities, Commission staff currently reviews U.S. Census Bureau 
population data for the applicable location and applies population 
thresholds provided by EPA and CEQ in their environmental justice 
recommendations and guidance. See supra at note 40.
---------------------------------------------------------------------------

    66. The Commission also proposes a corresponding addition to Sec.  
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 Sec.  380.2(f). The 
proposed definition of the term ``environmental justice community'' is 
identical to the definition that the Commission proposes to add to 
Sec.  50.1.\79\
---------------------------------------------------------------------------

    \79\ See supra P 32.
---------------------------------------------------------------------------

    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

[[Page 2779]]

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,\80\ 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 Sec.  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,\81\ 
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.
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    \80\ As noted above, NEPA requires the Commission to take a 
``hard look'' at the environmental impacts of a proposed action. See 
42 U.S.C. 4332(2)(C); Balt. Gas & Elec. Co. v. Nat. Res. Def. 
Council, Inc., 462 U.S. at 97.
    \81\ 18 CFR 380.12(k)(4)(v)(A) (2021).
---------------------------------------------------------------------------

    70. Under proposed Sec.  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,\82\ and provide the distance from the project facilities 
to any Class I area in the project vicinity. Under proposed Sec.  
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.
---------------------------------------------------------------------------

    \82\ 42 U.S.C. 7401 et seq.
---------------------------------------------------------------------------

    71. Under proposed Sec.  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 Sec.  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 
(Ldn) of 55 dBA at any pre-existing noise-sensitive 
area.\83\ 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.
---------------------------------------------------------------------------

    \83\ The EPA has indicated that a day-night noise level of 55 
decibels on the A-weighted scale protects the public from indoor and 
outdoor activity interference. The Commission has adopted this 
criterion and uses it to evaluate the potential noise impact from 
operation of natural gas compressor facilities. Elba Express Co., 
L.L.C., 141 FERC ] 61,027, at P 21 n.12 (2012). We think it is 
appropriate to use this same criterion to evaluate the potential 
noise impact from operation of substations and appurtenant 
facilities.
---------------------------------------------------------------------------

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,\84\ and other agencies have used the Federal 
Highway Administration's Visual Impact Assessment for Highway 
Projects.\85\ 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 Sec.  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.
---------------------------------------------------------------------------

    \84\ See, e.g., Final Environmental Impact Statement for the 
Swan Lake North Pumped Storage Project (P-13318-003).
    \85\ See, e.g., Final Environmental Impact Statement for the 
Susquehanna to Roseland 500kv Transmission Line Right-of-Way and 
Special Use Permit at 588, https://parkplanning.nps.gov/document.cfm?documentID=49285&parkID=220&projectID=25147.
---------------------------------------------------------------------------

5. Additional Proposed Revisions to 18 CFR 380.16
    74. Because the Commission proposes to add to Sec.  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 Sec.  380.16(h)); 
Resource Report 7--Environmental justice (proposed Sec.  380.16(i)); 
Resource Report 8--Geological resources (proposed Sec.  380.16(j)); 
Resource Report 9--Soils (proposed Sec.  380.16(k)); Resource Report 
10--Land use, recreation, and aesthetics (proposed Sec.  380.16(l)); 
Resource Report 11--Air quality and environmental noise (proposed Sec.  
380.16(m)); Resource Report 12--Alternatives (proposed Sec.  
380.16(n)); Resource Report 13--Reliability and safety (proposed Sec.  
380.16(o)); and Resource Report 14--Design and engineering (proposed 
Sec.  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 Sec.  
380.16. We discuss the main substantive revisions below.
    76. In Sec.  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.\86\
---------------------------------------------------------------------------

    \86\ 40 CFR 1508.1(g)(3) (2021).
---------------------------------------------------------------------------

    77. In Sec.  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 (Sec.  380.16(c)(3)), indicate 
the days of the week and times of the day during which construction 
activities would occur, and

[[Page 2780]]

describe any proposed nighttime construction activities (Sec.  
380.16(c)(4)).
    78. In Sec.  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 Sec.  380.16(e), the Commission proposes to clarify 
that Resource Report 3--Fish, wildlife, and vegetation must describe 
potential impacts on interior forest (Sec.  380.16(e)(3)), as well as 
the impact of proposed land clearing and vegetation management 
practices on fish, wildlife, and vegetation (Sec.  380.16(e)(4)).
    79. In Sec.  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 Sec.  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 (Sec.  380.16(l)(5)); and (3) require copies of any 
consultation with the Federal Aviation Administration (Sec.  
380.16(l)(5)(iii)).
    81. In Sec.  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 (Sec.  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 Sec.  
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 Sec. Sec.  
380.13 (Compliance with the Endangered Species Act) and 380.14 
(Compliance with the NHPA) to add cross-references to the appropriate 
paragraphs of Sec.  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,\87\ following the act's recodification in title 54 of the U.S. 
Code.
---------------------------------------------------------------------------

    \87\ 54 U.S.C. 306108.
---------------------------------------------------------------------------

III. Information Collection Statement

    84. The Paperwork Reduction Act \88\ 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.\89\ 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.
---------------------------------------------------------------------------

    \88\ 44 U.S.C. 3501-3521.
    \89\ See 5 CFR 1320.11 (2021).
---------------------------------------------------------------------------

    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).\90\
---------------------------------------------------------------------------

    \90\ FERC-729 includes the reporting and recordkeeping 
requirements for ``Electric Transmission Facilities.''
---------------------------------------------------------------------------

    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; \91\
---------------------------------------------------------------------------

    \91\ These requirements would only apply to applicants who elect 
to comply with the Applicant Code of Conduct set forth in proposed 
Sec.  50.12.
---------------------------------------------------------------------------

     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

[[Page 2781]]

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

    \92\ We consider the filing of an application, including the 
mandatory pre-filing information, to be a ``response.''
    \93\ The estimates for cost per response are derived using the 
following formula: Average Burden Hours per Response * $91 per Hour 
= Average Cost per Response. The hourly cost figure is the FY2022 
FERC average annual salary plus benefits ($188,992/year or $91/
hour). Commission staff estimates that industry costs for salary 
plus benefits are similar to Commission costs.
    \94\ Notwithstanding that compliance with the Applicant Code of 
Conduct is voluntary, we are providing the estimated burden hours 
associated with such compliance.
    \95\ After implementation of this proposed rule, we estimate one 
application for a permit to site electric transmission facilities 
will be filed per year.
    \96\ This category covers the proposed updates to the congestion 
and system analysis data that an applicant must provide during the 
pre-filing process and as part of the application in Exhibit H, 
System analysis data.
    \97\ This category covers additional proposed updates to part 50 
of the Commission's regulations that involve minor increases in 
burden (e.g., adding an interactive mapping feature to an 
applicant's project website and including additional material in the 
project notifications mailed to affected landowners) as well as a 
reduction in burden associated with eliminating the requirement that 
an applicant provide seven paper copies of an application, exhibits, 
and other submittals.
    \98\ This category covers a variety of non-substantial proposed 
updates to Sec.  380.16 of the Commission's regulations that, if 
adopted, would require an applicant to develop and submit additional 
information as part of the following resource reports: General 
project description; Water use and quality; Fish, wildlife, and 
vegetation; Soils; Land use, recreation, and aesthetics; and 
Reliability and safety.

                                              Annual Changes Proposed by the NOPR in Docket No. RM22-7-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Number of
                                             Number of      responses \92\    Total number  of  Average burden hours & cost  Total annual burden hours &
                                            respondents     per respondent       responses           per response \93\            total annual cost
                                                     (1)                (2)    (1) x (2) = (3)  (4)........................  (3) x (4) = 5
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Current FERC 729 Collection
--------------------------------------------------------------------------------------------------------------------------------------------------------
FERC-729................................               1                  1                  1  9,600 hrs.; $873,600.......  9,600 hrs.; $873,600.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Proposed Revisions in RM22-7-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Applicant Code of Conduct \94\..........          \95\ 1                  1                  1  136 hrs; $12,376...........  136 hrs.; $12,376.
Environmental Justice Public Engagement                1                  1                  1  24 hrs.; $2,184............  24 hrs.; $2,184.
 Plan.
Congestion and System Analysis Data \96\               1                  1                  1  160 hrs.; $14,560..........  160 hrs.; $14,560.
Other Updates to 18 CFR pt. 50 \97\.....               1                  1                  1  28 hrs.; $2,548............  28 hrs.; $2,548.
Resource Report: Tribal Resources.......               1                  1                  1  40 hrs.; $3,640............  40 hrs.; $3,640.
Resource Report: Environmental Justice..               1                  1                  1  80 hrs.; $7,280............  80 hrs.; $7,280.
Resource Report: Air Quality &                         1                  1                  1  296 hrs.; $26,936..........  296 hrs.; $26,936.
 Environmental Noise.
Information on Visual Impacts...........               1                  1                  1  100 hrs.; $9,100...........  100 hrs.; $9,100.
Other Updates to 18 CFR pt. 380 \98\....               1                  1                  1  148 hrs.; $13,468..........  148 hrs.; $13,468.
                                         ---------------------------------------------------------------------------------------------------------------
    Total...............................  ..............  .................                 11  ...........................  1,012 hrs.; $92,092.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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

[[Page 2782]]

[email protected] 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: 
[email protected]. 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.\99\ 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.\100\ Because the actions proposed herein 
fall within this categorical exclusion, preparation of an Environmental 
Assessment or an Environmental Impact Statement is not required.
---------------------------------------------------------------------------

    \99\ Regs. Implementing the Nat'l Env'l Pol'y Act of 1969, Order 
No. 486, 52 FR 47897 (Dec. 10, 1987), FERC Stats. & Regs. ] 30,783 
(1987) (cross-referenced at 41 FERC ] 61,284).
    \100\ 18 CFR 380.4(a)(2)(ii) (2021).
---------------------------------------------------------------------------

V. Regulatory Flexibility Act

    99. The Regulatory Flexibility Act of 1980 (RFA) \101\ 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.\102\ 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.\103\
---------------------------------------------------------------------------

    \101\ 5 U.S.C. 601-612.
    \102\ Id. 603(c).
    \103\ Id. 605(b).
---------------------------------------------------------------------------

    100. The Small Business Administration's (SBA) Office of Size 
Standards develops the numerical definition of a small business.\104\ 
The SBA size standard for electric utilities is based on the number of 
employees, including affiliates.\105\ Under SBA's size standards, a 
transmission owner covered under the category of Electric Bulk Power 
Transmission and Control (NAICS code 221121) \106\ is small if, 
including its affiliates, it employs 500 or fewer people.\107\
---------------------------------------------------------------------------

    \104\ 13 CFR 121.101 (2021).
    \105\ Id. 121.201.
    \106\ The North American Industry Classification System (NAICS) 
is an industry classification system that Federal statistical 
agencies use to categorize businesses for the purpose of collecting, 
analyzing, and publishing statistical data related to the U.S. 
economy. United States Census Bureau, North American Industry 
Classification System, https://www.census.gov/eos/www/naics/.
    \107\ 13 CFR 121.201 (Sector 22--Utilities).
---------------------------------------------------------------------------

    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.\108\ 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.\109\ 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.
---------------------------------------------------------------------------

    \108\ Order No. 689 Final Rule, 117 FERC ] 61,202 at P 73.
    \109\ Id.
---------------------------------------------------------------------------

    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)

[[Page 2783]]

502-6652 (toll free at 1-866-208-3676) or email at 
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
[email protected].

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)

    Issued December 15, 2022.
Debbie-Anne A. Reese,
Deputy Secretary.

    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

0
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.

0
2. Amend Sec.  50.1 as follows:
0
a. Add a definition in alphabetical order for ``Environmental justice 
community'';
0
b. Remove the words ``special use authorization'' in the definition of 
``Federal authorization'' and add in its place the words ``special use 
authorizations'';
0
c. Add a definition in alphabetical order for ``Indian Tribe''; and
0
d. Revise the definitions of ``National interest electric transmission 
corridor'', ``Permitting entity'', and ``Stakeholder''.
    The additions and revisions read as follows:


Sec.  50.1   Definitions.

* * * * *
    Environmental justice community means any disadvantaged community 
that has been historically marginalized and overburdened by pollution. 
Environmental justice communities include, but may not be limited to, 
minority populations, low-income populations, or indigenous peoples.
* * * * *
    Indian Tribe means an Indian Tribe that is recognized by treaty 
with the United States, by Federal statute, or by the U.S. Department 
of the Interior in its periodic listing of Tribal governments in the 
Federal Register in accordance with 25 CFR 83.6(a), and whose Tribal 
interests may be affected by the development and operation of the 
proposed transmission facilities.
    National interest electric transmission corridor means any 
geographic area that is experiencing electric energy transmission 
capacity constraints or congestion that adversely affects consumers or 
is expected to experience such energy transmission capacity constraints 
or congestion, as designated by the Secretary of Energy.
    Permitting entity means any Federal or State agency, Indian Tribe, 
or multistate entity that is responsible for issuing separate 
authorizations pursuant to Federal law that are required to construct 
electric transmission facilities in a national interest electric 
transmission corridor.
    Stakeholder means any Federal, State, interstate, or local agency; 
any Tribal government; any affected landowner; any environmental 
justice community member; or any other interested person or 
organization.
* * * * *


Sec.  50.2  [Amended]

0
3. Amend Sec.  50.2 as follows:
0
a. Remove the word ``tribes'' in the third sentence of paragraph (a) 
and add in its place the word ``Tribes''; and
0
b. Remove the word ``which'' in paragraph (c) and add in its place the 
word ``that''.
0
4. Amend Sec.  50.3 by revising paragraph (b) to read as follows:


Sec.  50.3   Applications/pre-filing; rules and format.

* * * * *
    (b) Applications, amendments, and all exhibits and other 
submissions required to be furnished by an applicant to the Commission 
under this part must be submitted in electronic format.
* * * * *
0
5. Amend Sec.  50.4 as follows:
0
a. Revise paragraphs (a)(1) through (3);
0
b. Add paragraph (a)(4); and
0
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:


Sec.  50.4  Stakeholder participation.

* * * * *
    (a) * * *
    (1) Identifies specific tools and actions to facilitate stakeholder 
communications and public information, including an up-to-date project 
website with an interactive mapping component, and a readily 
accessible, single point of contact for the applicant;
    (2) Lists all central locations in each county throughout the 
project area where the applicant will provide copies of all its filings 
related to the proposed project;
    (3) Includes a description and schedule explaining how the 
applicant intends to respond to requests for information from the 
public, permitting entities, and other legal entities with local 
authorization requirements; and
    (4) Includes an Environmental Justice Public Engagement Plan that 
addresses all targeted outreach to identified environmental justice 
communities. This plan must summarize comments received from 
potentially impacted environmental justice communities during any 
previous outreach activities and describe planned targeted outreach 
activities with such communities during the pre-filing process and 
after the filing of an application, including efforts to identify, 
engage, and accommodate non-English speaking groups or linguistically 
isolated communities. This plan must also describe how the applicant 
will conduct outreach to environmental justice communities about any 
potential mitigation.
* * * * *
    (c) * * *
    (1) The applicant must make a good faith effort to notify all: 
affected landowners; landowners with a residence within a quarter mile 
of the edge of the construction right-of-way of the proposed project; 
municipalities in the project area; permitting entities; other local, 
State, Tribal, and Federal governments and agencies involved in the 
project; electric utilities and transmission owners and operators that 
are, or may be, connected to the proposed transmission facilities; any 
known individuals or organizations that have expressed an interest in 
the State siting proceeding; and any other individuals or organizations 
that have expressed to the applicant, or its representatives, an 
interest in the proposed project. * * *
* * * * *
    (ii) By twice publishing a notice of the pre-filing request and 
application filings, in a daily, weekly, and/or Tribal newspaper of 
general circulation in each county in which the project is located, no 
later than 14 days after the date that a docket number is assigned for 
the pre-filing process or to the application.

[[Page 2784]]

    (2) Contents of participation notice. (i) Any pre-filing request 
notification sent by mail or published in a newspaper must, at a 
minimum, include:
    (A) The docket number assigned to the proceeding;
    (B) The most recent edition of the Commission's pamphlet Electric 
Transmission Facilities Permit Process. The newspaper notice need only 
refer to the pamphlet and indicate that it is available on the 
Commission's website;
    (C) A description of the applicant and a description of the 
proposed project, its location (including a general location map), its 
purpose, and the proposed project schedule;
    (D) Contact information for the applicant, including a local or 
toll-free telephone number, the name of a specific contact person who 
is knowledgeable about the project, and information on how to access 
the project website;
    (E) Information on how to get a copy of the pre-filing information 
from the applicant and the location(s) where copies of the pre-filing 
information may be found as specified in paragraph (b) of this section;
    (F) A copy of the Director's notification of commencement of the 
pre-filing process, the Commission's internet address, and contact 
information for the Commission's Office of Public Participation;
    (G) Information explaining the pre-filing and application processes 
and when and how to intervene in the application proceedings; and
    (H) Information explaining that the Commission's pre-filing and 
application processes are separate from any simultaneous State siting 
proceeding(s) and how to participate in any such State siting 
proceeding(s).
    (ii) In addition to the requirements of paragraph (c)(2)(i) of this 
section, any pre-filing request notification sent by mail to an 
affected landowner must also include:
    (A) A general description of the property the applicant will need 
from an affected landowner if the project is approved;
    (B) The most recent edition of the document entitled ``Landowner 
Bill of Rights in Federal Energy Regulatory Commission Electric 
Transmission Proceedings,'' on its own page(s) in at least 12-point 
font, legible, and contained within the first 10 pages of the 
notification; and
    (C) A brief summary of what specific rights the affected landowner 
has in proceedings under the eminent domain rules of the relevant 
State.
    (iii) The application notification must include the Commission's 
notice issued under Sec.  50.9 and restate, or clearly identify the 
location of, the comment and intervention instructions provided in the 
Commission's notice.
    (3) If, for any reason, a person or entity entitled to this notice 
has not yet been identified when the notices under this paragraph (c) 
are sent or published, the applicant must supply the information 
required under paragraphs (c)(2)(i) through (iii) of this section, as 
applicable, when the person or entity is identified.
    (4) If the notification is returned as undeliverable, the applicant 
must make a reasonable attempt to find the correct address and re-send 
the notice.
* * * * *
0
6. Amend Sec.  50.5 as follows:
0
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);
0
b. Add paragraphs (c)(8) and (9);
0
c. Revise paragraphs (d)(1)(i) and (e)(3)(i);
0
d. Remove paragraph (e)(3)(ii);
0
e. Redesignate paragraph (e)(3)(iii) as (e)(3)(ii);
0
f. Revise the first sentence of paragraph (e)(4);
0
g. Redesignate paragraphs (e)(7) and (8) as paragraphs (e)(9) and (10), 
respectively;
0
h. Add new paragraphs (e)(7) and (8); and
0
i. Revise the first sentence of newly redesignated paragraph (e)(10).
    The revisions and additions read as follows:


Sec.  50.5   Pre-filing procedures.

* * * * *
    (c) Contents of the initial filing. An applicant's pre-filing 
request cannot be filed prior to the initial consultation and must 
include the following information:
* * * * *
    (3) A list of the permitting entities responsible for conducting 
separate Federal permitting and environmental reviews and 
authorizations for the project, including contact names and telephone 
numbers, and a list of Tribal, State, and local entities with 
authorization requirements. * * *
    (i) How the applicant intends to account for each of the relevant 
entity's permitting and environmental review schedules, including its 
progress in the Department of Energy's pre-application process; and
* * * * *
    (5) A description of completed work, including contacting 
stakeholders, agency and Tribal consultations, project engineering, 
route planning, environmental and engineering contractor engagement, 
environmental surveys/studies, open houses, and any work completed or 
actions taken in conjunction with a State proceeding. * * *
* * * * *
    (8) A detailed description of how the proposed project will reduce 
capacity constraints and congestion on the transmission system.
    (9) A statement indicating whether the applicant intends to comply 
with the Applicant Code of Conduct described in Sec.  50.12, and, if 
not, how the applicant intends to ensure good faith dealings with 
affected landowners.
    (d) * * *
    (1) * * *
    (i) The notification will designate the third-party contractor, if 
applicable, and
* * * * *
    (e) * * *
    (3) * * *
    (i) Provide project notification in compliance with the 
requirements of Sec.  50.4(c); and
* * * * *
    (4) Within 30 days, submit a mailing list of all notifications made 
under paragraph (e)(3) of this section, including the names of the 
Federal, State, Tribal, and local jurisdictions' representatives. * * *
* * * * *
    (7) Within 30 days, file supporting information showing how the 
proposed project will reduce capacity constraints and congestion on the 
transmission system, including:
    (i) Full report(s) of the System Impact Study for the proposed 
project;
    (ii) For each transmission planning region that would be crossed by 
the proposed project, the most recent Regional Transmission Plan; and
    (iii) Expert witness testimony and other relevant information 
submitted with the State siting application(s), where applicable.
    (8) Within 30 days, file a draft Exhibit H--System analysis data 
required in Sec.  50.7.
* * * * *
    (10) On a monthly basis, file status reports detailing the 
applicant's project activities, including surveys, stakeholder 
communications, agency and Tribal meetings, and updates on the status 
of other required permits or authorizations. * * *
* * * * *
0
7. Amend Sec.  50.6 as follows:
0
a. Revise paragraph (b), the second sentence of paragraph (c), and 
paragraphs (d), (e)(1), and (e)(3)(i) and (ii);

[[Page 2785]]

0
b. Add paragraph (e)(3)(iii); and
0
c. Revise paragraph (i).
    The revisions and addition read as follows:


Sec.  50.6   Applications: general content.

* * * * *
    (b) A concise description of applicant's existing operations, if 
applicable.
    (c) * * * The description must, at a minimum: identify the proposed 
geographic location of the principal project features and the planned 
routing of the transmission line; contain the general characteristics 
of the transmission line, including voltage, types of towers, point of 
receipt and point of delivery, and the geographic character of the area 
traversed by the line; and be accompanied by an overview map of 
sufficient scale to show the entire transmission route on one (or a 
few) 8.5 by 11-inch sheets.
    (d) Verification that the proposed route lies within a national 
interest electric transmission corridor designated by the Secretary of 
the Department of Energy under section 216 of the Federal Power Act, 
including the date on which the relevant corridor was designated.
    (e) * * *
    (1) A State in which the transmission facilities are to be 
constructed or modified does not have the authority to approve the 
siting of the facilities or consider the interstate benefits or 
interregional benefits expected to be achieved by the proposed 
construction or modification of transmission facilities in the State;
* * * * *
    (3) * * *
    (i) Not made a determination on an application seeking approval 
pursuant to applicable law;
    (ii) Conditioned its approval in such a manner that the proposed 
construction or modification will not significantly reduce transmission 
capacity constraints or congestion in interstate commerce or is not 
economically feasible; or
    (iii) Denied an application seeking approval pursuant to applicable 
law.
* * * * *
    (i) A full statement as to whether any other application to 
supplement or effectuate the applicant's proposal must be (or is to be) 
filed by the applicant, any of the applicant's customers, or any other 
person with any other Federal, State, Tribal, or other regulatory body; 
and if so, the nature and status of each such application.
* * * * *
0
8. Amend Sec.  50.7 as follows:
0
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);
0
b. Remove paragraphs (h)(3) and (4);
0
c. Redesignate paragraphs (h)(5) and (6) as paragraphs (h)(3) and (4); 
and
0
d. Revise newly redesignated paragraphs (h)(3) and (4) and paragraphs 
(i)(2) and and (j).
    The revisions read as follows:


Sec.  50.7  Applications: exhibits.

    Each exhibit must contain a title page showing the applicant's 
name, the title of the exhibit, and the proper letter designation of 
the exhibit. If an exhibit is 10 or more pages in length, it must 
include a table of contents citing (by page, section number, or 
subdivision) the component elements or matters contained in the 
exhibit.
* * * * *
    (g) * * *
    (1) * * *
    (i) Name, point of receipt, and point of delivery of the project;
* * * * *
    (vi) Line design features that minimize audible corona noise during 
fog/rain caused by operation of the proposed facilities.
    (2) * * *
    (ii) Type of structures, including overhead and underground 
structures;
* * * * *
    (vi) A list of the names of all new (and existing, if applicable) 
substations or switching stations that will be associated with the 
proposed transmission line.
    (3) * * *
    (iii) Width of the right-of-way; and
* * * * *
    (4) * * *
    (iii) Conductor size, conductor type, and number of conductors per 
phase.
    (5) If the proposed project includes an overhead transmission line, 
the following additional information also must be provided:
* * * * *
    (6) If an underground or underwater transmission line is proposed, 
the following additional information also must be provided:
* * * * *
    (ii) Type of cable and a description of any required supporting 
equipment, such as pressurizing plants;
* * * * *
    (8) Any other data or information identified as a minimum 
requirement for the siting of a transmission line in the State in which 
the facility will be located.
    (h) * * *
    (1) An analysis of the existing and expected capacity constraints 
and congestion on the electric transmission system.
    (2) Steady-state, short-circuit, and dynamic power flow cases, as 
applicable, used to analyze the existing transmission system, proposed 
project, and future transmission system under anticipated load growth, 
operating conditions, variations in power import and export levels, 
generation additions and retirements, and additional transmission 
facilities required for system reliability. * * *
* * * * *
    (ii) State the assumptions, criteria, and guidelines upon which the 
models are based and take into consideration transmission facility 
loading, planned and forecasted forced outage rate for generation and 
transmission, generation dispatch scenarios, system protection, and 
system stability.
    (3) A concise analysis of how the proposed project will:
    (i) Improve system reliability over the long and short term;
    (ii) Impact long-term regional transmission expansion plans;
    (iii) Impact congestion on the applicant's entire system and 
neighboring systems; and
    (iv) Incorporate any advanced technology design features, if 
applicable.
    (4) Single-line diagrams, including existing system facilities 
identified by name and circuit number, that show system transmission 
elements, in relation to the project and other principal interconnected 
system elements, as well as power flow and loss data that represent 
system operating conditions.
    (i) * * *
    (2) The estimated capital cost and estimated annual operations and 
maintenance expense of each proposed mitigation measure.
* * * * *
    (j) Exhibit J--Construction, operation, and management. A concise 
statement providing arrangements for supervision, management, 
engineering, accounting, legal, or other similar services to be 
rendered in connection with the construction, operation, and 
maintenance of the project, if not to be performed by employees of the 
applicant, including reference to any existing or contemplated 
agreements, together with a statement showing any affiliation between 
the applicant and

[[Page 2786]]

any parties to the agreements or arrangements.


Sec.  50.8   [Amended]

0
9. Amend Sec.  50.8 as follows:
0
a. Remove the word ``applicant's'' in the second sentence of paragraph 
(b) and add in its place the word ``applicant''; and
0
b. Remove the comma directly following the word ``rejected'' in 
paragraph (c).
0
10. Amend Sec.  50.9 by revising paragraph (b) to read as follows:


Sec.  50.9   Notice of Application

* * * * *
    (b) The notice will establish prompt and binding intermediate 
milestones and ultimate deadlines for the review of, and Federal 
authorization decisions relating to, the proposed facilities.


Sec.  50.11   [Amended]

0
11. Amend Sec.  50.11 as follows:
0
a. Revise paragraph (a) and the second sentence of paragraph (b);
0
b. Add a sentence at the end of paragraph (d) introductory text and add 
paragraphs (d)(1) and (2);
0
c. Remove the word ``permitee'' in the first sentence of paragraph (e) 
and add in its place the word ``permittee'';
0
d. Remove the word ``Order'' in the first sentence of paragraph (g) 
introductory text and add in its place the word ``order''; and
0
e. Remove the word ``Orders'' in paragraph (g)(2) and add in its place 
the word ``orders''.
    The revisions and addition read as follows:


Sec.  50.11   General conditions applicable to permits.

    (a) The following terms and conditions, along with others that the 
Commission finds are required by the public interest, will attach to 
the issuance of each permit and to the exercise of the rights granted 
under the permit.
    (b) * * * Provided that, when an applicant files for rehearing of 
the order in accordance with FPA section 313(a), the acceptance must be 
filed within 30 days after final disposition of the request for 
rehearing. * * *
* * * * *
    (d) * * * Provided that, no authorization to proceed with 
construction activities will be issued:
    (1) Until the time for the filing of a request for rehearing under 
16 U.S.C. 825l(a) has expired with no such request being filed, or
    (2) If a timely request for rehearing raising issues reflecting 
opposition to project construction, operation, or need is filed, until:
    (i) The request is no longer pending before the Commission;
    (ii) The record of the proceeding is filed with the court of 
appeals; or
    (iii) 90 days has passed after the date that the request for 
rehearing may be deemed to have been denied under 16 U.S.C. 825l(a).
* * * * *
0
12. Add Sec.  50.12 to read as follows:


Sec.  50.12   Applicant code of conduct for landowner engagement.

    Under section 216(e)(1) of the Federal Power Act, any applicant 
that may, upon receipt of a permit, seek to acquire the necessary 
right-of-way by the exercise of the right of eminent domain must 
demonstrate to the Commission that it has made good faith efforts to 
engage with landowners and other stakeholders early in the applicable 
permitting process. An applicant's commitment to and compliance with 
the Applicant Code of Conduct in its communications with affected 
landowners during the permitting process is one way to demonstrate to 
the Commission that such good faith efforts have been made.
    (a) Applicant code of conduct. To promote good faith engagement 
with affected landowners, applicants committing to comply with the 
Applicant Code of Conduct must:
    (1) For the duration of the pre-filing and application review 
process, develop and retain a log of discussions with affected 
landowners, organized by name and property address, that includes:
    (i) The name of the affected landowner;
    (ii) The substance of the items discussed;
    (iii) The nature of the contact (such as in-person, virtual 
meeting, telephone, electronic mail);
    (iv) The date of the contact; and
    (v) The status of discussions with the affected landowner following 
the contact, including any permissions granted, negotiations, or future 
meetings scheduled.
    (2) In addition to the pre-filing request notification required by 
Sec.  50.4(c)(1)(i) and (ii), provide to each affected landowner, prior 
to, during, or immediately after the first contact, a document that, at 
a minimum, includes: a description of the project, a description of the 
Commission and its role, a map of the project route, and the Landowner 
Bill of Rights in the form described in Sec.  50.4(c)(2)(ii)(B). If the 
first contact with the affected landowner is in-person, the applicant 
must offer to provide the affected landowner at least one paper copy of 
the document. If the first contact with the affected landowner is by 
telephone, text, or electronic mail, the applicant may provide the 
affected landowner with a copy of the document by electronic means or 
by first class mail, at the affected landowner's preference. The 
applicant must review the provisions of the document with the affected 
landowner upon request.
    (3) Ensure that any representative acting on the applicant's behalf 
states their full name, title, and employer, as well as the name of the 
applicant that they represent, at the beginning of any discussion with 
an affected landowner, and provides the representative's contact 
information, including mailing address, telephone number, and 
electronic mail address, prior to the end of the discussion.
    (4) Ensure that all communications with affected landowners are 
factually correct. The applicant must correct any statements made by it 
or any representative acting on its behalf that it becomes aware were:
    (i) Inaccurate when made; or
    (ii) Have been rendered inaccurate based on subsequent events, 
within three business days of discovery of any such inaccuracy.
    (5) Ensure that communications with affected landowners do not 
misrepresent the status of the discussions or negotiations between the 
parties.
    (6) Provide affected landowners with updated contact information 
whenever an applicant's contact information changes.
    (7) Communicate respectfully with affected landowners and avoid 
harassing, coercive, manipulative, or intimidating communications or 
high-pressure tactics.
    (8) Except as otherwise provided by State or local law, abide by an 
affected landowner's request to end the communication or for the 
applicant or its representative to leave the affected landowner's 
property.
    (9) Except as otherwise provided by State or local law, obtain an 
affected landowner's permission prior to entering the property, 
including for survey or environmental assessment, and leave the 
property without argument or delay if the affected landowner revokes 
permission.
    (10) Refrain from discussing an affected landowner's communications 
or negotiations status with any other affected landowner.
    (11) Provide the affected landowner with a copy of any appraisal 
that has been prepared by, or on behalf of, the applicant for that 
affected landowner's property, if any, before discussing the value of 
the property in question.

[[Page 2787]]

    (12) Ensure that any representative acting on the applicant's 
behalf complies with all provisions of the Applicant Code of Conduct 
described in this paragraph (a).
    (b) Compliance with Applicant Code of Conduct. Applicants 
committing to comply with the Applicant Code of Conduct must:
    (1) File, as part of the pre-filing request required by Sec.  
50.5(c), an affirmative statement that the applicant intends to comply 
with the Applicant Code of Conduct.
    (2) Include, as part of the monthly status reports required by 
Sec.  50.5(e)(10):
    (i) An affirmation that the applicant and its representatives have, 
to the best of their knowledge, complied with the Applicant Code of 
Conduct during the month in question; or
    (ii) A detailed explanation of any instances of non-compliance with 
the Applicant Code of Conduct during the month in question and any 
remedial actions taken or planned.
    (3) Identify, in a filing with the Commission or as part of the 
monthly status reports required by Sec.  50.5(e)(10), any known 
instances of non-compliance that were not disclosed in prior monthly 
status reports and explain any remedial actions taken in the current 
month to address instances of non-compliance occurring in prior months.
    (c) Compliance with an alternative method. Applicants not 
committing to comply with the Applicant Code of Conduct must:
    (1) File, as part of the pre-filing request required by Sec.  
50.5(c):
    (i) An affirmative statement that the applicant intends to rely on 
an alternative method of demonstrating that it meets the good faith 
efforts standard;
    (ii) A detailed explanation of the alternative method of 
demonstrating that it meets the good faith efforts standard, including 
any commitments to record-keeping, information-sharing, or other 
conduct;
    (iii) An explanation of how the 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;
    (iv) An explanation, for each component of the Applicant Code of 
Conduct with which it does not comply, why it did not follow that 
component; and
    (v) An explanation, for each component of the Applicant Code of 
Conduct with which it does not comply, why the alternative method is an 
equal or better means to ensure the good faith standard is met 
notwithstanding that deviation from the Applicant Code of Conduct.

PART 380--REGULATIONS IMPLEMENTING THE NATIONAL ENVIRONMENTAL 
POLICY ACT

0
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.
0
14. Amend Sec.  380.2 by redesignating paragraphs (f) and (g) as 
paragraphs (g) and (h) and adding new paragraph (f).
    The addition reads as follows:


Sec.  380.2   Definitions and terminology.

* * * * *
    (f) Environmental justice community means any disadvantaged 
community that has been historically marginalized and overburdened by 
pollution. Environmental justice communities include, but may not be 
limited to, minority populations, low-income populations, or indigenous 
peoples.
* * * * *


Sec.  380.13  [Amended]

0
15. Amend Sec.  380.13 in paragraph (b)(2)(i) by adding ``or Sec.  
380.16, as applicable'' directly after the reference to ``Sec.  
380.12''.


Sec.  380.14   [Amended]

0
16. Amend Sec.  380.14 in paragraph (a) introductory text as follows:
0
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
0
b. Add the ``or Sec.  380.16(f), as applicable'' directly after the 
reference to ``380.12(f)''.
0
17. Amend Sec.  380.16 as follows:
0
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);
0
b. Revise paragraph (d)(6) and the second sentence of paragraph (d)(7);
0
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);
0
d. Revise paragraphs (f)(1)(i), (iii), (iv), and (v), (f)(2) 
introductory text, and the first sentence of paragraph (f)(4);
0
e. Revise the first sentence of paragraph (g) introductory text and 
paragraphs (g)(3) and (6);
0
f. Redesignate paragraphs (k) through (m) as paragraphs (n) through 
(p);
0
g. Redesignate paragraphs (h) through (j) as paragraphs (j) through 
(l);
0
h. Add new paragraphs (h) and (i);
0
i. Revise the heading and the second sentence of newly redesignated 
paragraph (j) introductory text and revise newly redesignated paragraph 
(j)(3);
0
j. Revise the newly redesignated paragraph (k) heading and paragraphs 
(k) introductory text and (k)(2) and (3);
0
k. Add paragraph (k)(4);
0
l. Revise newly redesignated paragraph (l);
0
m. Add new paragraph (m);
0
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);
0
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
0
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:


Sec.  380.16   Environmental reports for Section 216 Federal Power Act 
Permits.

    (a) * * *
    (1) * * * The environmental report must include the 14 resource 
reports and related material described in this section.
* * * * *
    (b) * * *
    (3) Identify the effects of construction, operation (including 
malfunctions), and maintenance, as well as cumulative effects resulting 
from the incremental effects of the project when added to the effects 
of other past, present, and reasonably foreseeable actions;
* * * * *
    (c) * * * This report must describe facilities associated with the 
project; special construction, operation, and maintenance procedures; 
construction timetables; future plans for related construction; 
compliance with regulations and codes; and permits that must be 
obtained. * * *
    (1) Describe and provide location maps of all project facilities 
(such as transmission line towers, substations, and any appurtenant 
facilities) to be constructed, modified, replaced, or removed, and 
related construction and operational support activities and areas,

[[Page 2788]]

such as maintenance bases, staging areas, communications towers, power 
lines, and new access roads (roads to be built or modified). * * *
    (2) * * *
    (i) Current, original United States Geological Survey (USGS) 7.5-
minute series topographic maps, or maps of equivalent detail, covering 
at least a 0.5-mile-wide corridor centered on the electric transmission 
facility centerline, with integer mileposts identified, showing the 
location of rights-of-way, new access roads, other linear construction 
areas, substations, and construction materials storage areas. Nonlinear 
construction areas must be shown on maps at a scale of 1:3,600, or 
larger, keyed graphically and by milepost to the right-of-way maps. The 
topographic maps must depict the facilities identified under paragraph 
(l)(5) of this section, including any facilities located outside of the 
0.5-mile-wide corridor.
    (ii) Original aerial images or photographs or photo-based alignment 
sheets based on these sources, not more than one year old (unless older 
ones accurately depict current land use and development) and with a 
scale of 1:6,000, or larger, showing the proposed transmission line 
route and location of transmission line towers, substations and 
appurtenant facilities, covering at least a 0.5-mile-wide corridor, and 
including mileposts. The aerial images or photographs or photo-based 
alignment sheets must show all existing transmission facilities located 
in the area of the proposed facilities and the facilities identified 
under paragraph (l)(5) of this section, including any facilities 
located outside of the 0.5-mile-wide corridor. Older images/
photographs/alignment sheets must be modified to show any facilities 
not depicted in the original. Alternative formats (e.g., blue-line 
prints of acceptable resolution) need prior approval by the 
environmental staff of the Commission's Office of Energy Projects.
    (iii) In addition to the requirements under Sec.  50.3(b) of this 
chapter, the applicant must contact the environmental staff of the 
Office of Energy Projects regarding the need for any additional copies 
of topographic maps and aerial images/photographs.
    (3) Describe and identify, by milepost, proposed general 
construction and restoration methods, and any special methods to be 
used in areas of rugged topography, residential areas, active 
croplands, and sites where explosives are likely to be used. Describe 
any proposed horizontal directional drilling and pile driving that may 
be necessary.
    (4) Identify the number of construction spreads, average workforce 
requirements for each construction spread and estimated duration of 
construction from initial clearing to final restoration. Indicate the 
days of the week and times of the day that proposed construction 
activities would occur and describe any proposed nighttime construction 
activities.
* * * * *
    (d) * * *
    (6) Discuss proposed mitigation measures to reduce the potential 
for adverse impacts to surface water, wetlands, or groundwater quality. 
Discuss the potential for blasting or contamination/spills to affect 
water wells, springs, and wetlands, and measures to be taken to detect 
and remedy such effects. Describe the impact of proposed land clearing 
and vegetation management practices, including herbicide treatment, in 
the project area on water resources.
    (7) * * * Identify locations of Environmental Protection Agency or 
State-designated, sole-source aquifers and wellhead protection areas 
crossed by the proposed transmission line facilities.
    (e) * * *
    (3) Describe and provide the acreage of vegetation cover types that 
would be affected, including unique ecosystems or communities, such as 
remnant prairie, interior forest, or old-growth forest, or significant 
individual plants, such as old-growth specimen trees.
    (4) Describe the impact of construction, operation, and maintenance 
on aquatic and terrestrial species and their habitats, including the 
possibility of a major alteration to ecosystems or biodiversity, and 
any potential impact on State-listed endangered or threatened species. 
Describe the impact of proposed land clearing and vegetation management 
practices, including herbicide treatment, in the project area on fish, 
wildlife, and vegetation. * * *
    (5) Identify all federally listed or proposed threatened or 
endangered species and critical habitat that potentially occur in the 
vicinity of the project. * * * The application must include the results 
of any required surveys unless seasonal considerations make this 
impractical. * * *
    (6) Identify all federally listed essential fish habitat (EFH) that 
potentially occurs in the vicinity of the project. Provide information 
on all EFH, as identified by the pertinent Federal fishery management 
plans, that may be adversely affected by the project and the results of 
abbreviated consultations with the National Marine Fisheries Service, 
and any resulting EFH assessments.
    (7) Describe proposed, site-specific mitigation measures to 
minimize impacts on fisheries, wildlife, and vegetation.
    (8) Include copies of correspondence not provided under paragraph 
(e)(5) of this section, containing recommendations from appropriate 
Federal and State fish and wildlife agencies to avoid or limit impacts 
on wildlife, fisheries, and vegetation, and the applicant's response to 
the recommendations.
    (f) * * *
    (1) * * *
    (i) Documentation of the applicant's initial cultural resource 
consultations, including consultations with Native Americans and other 
interested persons (if appropriate);
* * * * *
    (iii) An Evaluation Report, as appropriate;
    (iv) A Treatment Plan, as appropriate; and
    (v) Written comments from State Historic Preservation Officer(s) 
(SHPO), Tribal Historic Preservation Officers (THPO), as appropriate, 
and applicable land-management agencies on the reports in paragraphs 
(f)(1)(i) through (iv) of this section.
    (2) The application or pre-filing documents, as applicable, must 
include the documentation of initial cultural resource consultation(s), 
the Overview and Survey Reports, if required, and written comments from 
SHPOs, THPOs, and land-management agencies, if available. The initial 
cultural resource consultations should establish the need for surveys. 
If surveys are deemed necessary by the consultation with the SHPO/THPO, 
the survey reports must be filed with the application or pre-filing 
documents.
* * * * *
    (4) The applicant must request privileged treatment for all 
material filed with the Commission containing location, character, and 
ownership information about cultural resources in accordance with Sec.  
388.112 of this chapter. * * *
* * * * *
    (g) * * * This report must identify and quantify the impacts of 
project construction, operation, and maintenance on factors affecting 
municipalities and counties in the vicinity of the project. * * *
* * * * *
    (3) Describe on-site manpower requirements and payroll during 
construction, operation, and maintenance, including the number of

[[Page 2789]]

construction personnel who currently reside within the impact area, 
will commute daily to the site from outside the impact area, or will 
relocate temporarily within the impact area.
* * * * *
    (6) Conduct a fiscal impact analysis evaluating incremental local 
government expenditures in relation to incremental local government 
revenues that will result from the project. Incremental expenditures 
include, but are not limited to, school operation, road maintenance and 
repair, public safety, and public utilities.
    (h) Resource Report 6--Tribal resources. This report must describe 
Indian Tribes, Tribal lands, and Tribal interests that may be affected 
by the proposed project. Resource Report 6 must:
    (1) Identify Indian Tribes that may be affected by the 
construction, operation, and maintenance of the proposed transmission 
facilities.
    (2) Describe the impacts of construction, operation, and 
maintenance of the project on Indian Tribes and Tribal interests, 
including those related to: water use and quality; wildlife and 
vegetation; cultural and historic resources; socioeconomics; geological 
resources; soils; land use, recreation, and aesthetics; air quality and 
environmental noise; traffic; and health.
    (3) Identify project impacts that may affect Tribal interests not 
necessarily associated with resources specified in paragraph (h)(2) of 
this section, e.g., treaties, Tribal practices, or agreements between 
the Indian Tribe and entities other than the applicant.
    (4) Identify Indian Tribes that may attach religious and cultural 
significance to historic properties within the proposed project right-
of-way or in the project vicinity, as well as available information on 
Indian traditional cultural and religious properties, whether on or off 
of any Indian reservation.
    (5) Ensure that information made available under this section not 
include specific site or property locations, the disclosure of which 
will create a risk of harm, theft, or destruction of archaeological or 
Tribal cultural resources or to the site at which the resources are 
located, or which would violate any Federal law, including the 
Archaeological Resources Protection Act of 1979, 16 U.S.C. 470hh, and 
the National Historic Preservation Act of 1966, 54 U.S.C. 307103.
    (i) Resource Report 7--Environmental justice. This report must 
address the effects of the proposed project on environmental justice 
communities, as defined in Sec.  380.2 of this chapter. Resource Report 
7 must:
    (1) Identify environmental justice communities within the area of 
potential project impacts using current guidance and data, including 
localized data, from the Environmental Protection Agency, the Council, 
the Census Bureau, and other authoritative sources. Provide maps 
depicting identified environmental justice communities in relation to 
the proposed project facilities using granular data.
    (2) Describe the impacts of construction, operation, and 
maintenance of the project on environmental justice communities, 
including those related to: water use and quality; wildlife and 
vegetation; cultural and historic resources; socioeconomics; geological 
resources; soils; land use, recreation, and aesthetics; air quality and 
environmental noise; traffic; and health. Identify any 
disproportionately high and adverse impacts on environmental justice 
communities.
    (3) Discuss any cumulative impacts on environmental justice 
communities, regarding resources affected by the project, including 
whether any cumulative impacts would be disproportionately high and 
adverse. Describe the proposed project's impacts in relation to the 
aggregation of past, present, and reasonably foreseeable actions taken 
by Federal or non-Federal entities, and the environmental justice 
communities' capacity to tolerate additional impacts.
    (4) Describe any proposed mitigation measures 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.
    (j) Resource Report 8--Geological resources. * * * Resource Report 
8 must:
* * * * *
    (3) Describe how the project will be located or designed to avoid 
or minimize adverse effects to geological resources or risk to itself. 
Describe any geotechnical investigations and monitoring that would be 
conducted before, during, and after construction. Discuss the potential 
for blasting to affect structures and the proposed measures to be taken 
to remedy such effects.
* * * * *
    (k) Resource Report 9--Soils. This report must describe the soils 
that will be affected by the proposed project, the effect on those 
soils, and measures proposed to minimize or avoid impacts. Resource 
Report 9 must:
* * * * *
    (2) Identify, by milepost, potential impacts from: soil erosion due 
to water, wind, or loss of vegetation; soil compaction and damage to 
soil structure resulting from movement of construction vehicles; wet 
soils and soils with poor drainage that are especially prone to 
structural damage; damage to drainage tile systems due to movement of 
construction vehicles and trenching activities; and interference with 
the operation of agricultural equipment due to the possibility of large 
stones or blasted rock occurring on or near the surface as a result of 
construction.
    (3) Identify, by milepost, cropland and residential areas where 
project construction may result in the loss of soil fertility, 
including any land classified as prime or unique farmland by the U.S. 
Department of Agriculture, Natural Resources Conservation Service.
    (4) Describe any proposed mitigation measures to reduce the 
potential for adverse impacts to soils or agricultural productivity.
    (l) Resource Report 10--Land use, recreation, and aesthetics. This 
report must describe the existing uses of land in the project vicinity 
and changes to those land uses that will occur if the project is 
approved. The report must discuss proposed mitigation measures, 
including the protection and enhancement of existing land use. Resource 
Report 10 must:
    (1) Describe the width and acreage requirements of all construction 
and permanent rights-of-way for project construction, operation and 
maintenance.
    (i) List, by milepost, locations where the proposed construction or 
permanent rights-of-way would be adjacent to existing rights-of-way of 
any kind.
    (ii) Identify, preferably by diagrams, existing rights-of-way that 
will be used for a portion of the construction or permanent rights-of-
way, the overlap and how much additional width will be required.
    (iii) Identify the total amount of land to be purchased or leased 
for each project facility; the amount of land that would be disturbed 
for construction, operation, and maintenance of the facility; and the 
proposed use of the remaining land not required for project operation 
and maintenance, if any.
    (iv) Identify the size of typical staging areas and expanded work 
areas, such as those at railroad, road, and waterbody crossings, and 
the size and location of all construction materials storage yards and 
access roads.

[[Page 2790]]

    (2) Identify, by milepost, the existing use of lands crossed by, or 
adjacent to, the proposed project facilities or rights-of-way.
    (3) Describe planned development on land crossed by, or within 0.25 
mile of, the proposed facilities, the time frame (if available) for 
such development, and proposed coordination to minimize impacts on land 
use. Planned development means development that is included in a master 
plan or is on file with the local planning board or the county.
    (4) Identify, by milepost and length of crossing, the area of 
direct effect of each proposed facility and operational site on sugar 
maple stands; orchards and nurseries; landfills; operating mines; 
hazardous waste sites; State wild and scenic rivers; State or local 
designated trails; nature preserves; game management areas; remnant 
prairie; old-growth forest; interior forest; national or State forests 
or parks; golf courses; designated natural, recreational or scenic 
areas; registered natural landmarks; Native American religious sites 
and traditional cultural properties (to the extent they are known to 
the public at large) and reservations; lands identified under the 
Special Area Management Plan of the Office of Coastal Zone Management, 
National Oceanic and Atmospheric Administration; and lands owned or 
controlled by Federal or State agencies or private preservation groups. 
Also identify if any of those areas are located within 0.25 mile of any 
proposed facility.
    (5) Identify and describe buildings, electronic installations, 
airstrips, airports, and heliports in the project vicinity. The 
facilities identified under this paragraph (l)(5) must be depicted on 
the maps and photographs in Resource Report 1, as required by paragraph 
(c)(2) of this section.
    (i) Buildings: List all single-family and multi-family dwellings 
and related structures, mobile homes, apartment buildings, commercial 
structures, industrial structures, business structures, churches, 
hospitals, nursing homes, schools, or other structures normally 
inhabited by humans or intended to be inhabited by humans on a daily or 
regular basis within a 0.5-mile-wide corridor centered on the proposed 
transmission line alignment. Provide a general description of each 
habitable structure and its distance from the centerline of the 
proposed project. In cities, towns, or rural subdivisions, houses can 
be identified in groups. Provide the number of habitable structures in 
each group and list the distance from the centerline to the closest 
habitable structure in the group. Provide a list of all habitable 
structures within 200 feet of a proposed construction work area for all 
proposed project facilities, including transmission line towers, 
substations, access roads, and appurtenant facilities; a general 
description of each habitable structure; and the distance of each 
habitable structure from the proposed construction work area.
    (ii) Electronic installations: List all commercial AM radio 
transmitters located within 10,000 feet of the centerline of the 
proposed project and all FM radio transmitters, microwave relay 
stations, or other similar electronic installations located within 
2,000 feet of the centerline of the proposed project. Provide a general 
description of each installation and its distance from the centerline 
of the proposed project.
    (iii) Airstrips, Airports, and Heliports: List all known private 
airstrips within 10,000 feet of the centerline of the project. List all 
airports registered with the Federal Aviation Administration (FAA), 
with at least one runway more than 3,200 feet in length, that are 
located within 20,000 feet of the centerline of the proposed project. 
Indicate whether any transmission structures will exceed a 100:1 
horizontal slope (one foot in height for each 100 feet in distance) 
from the closest point of the closest runway. List all airports 
registered with the FAA having no runway more than 3,200 feet in length 
that are located within 10,000 feet of the centerline of the proposed 
project. Indicate whether any transmission structures will exceed a 
50:1 horizontal slope from the closest point of the closest runway. 
List all heliports located within 5,000 feet of the centerline of the 
proposed project. Indicate whether any transmission structures will 
exceed a 25:1 horizontal slope from the closest point of the closest 
landing and takeoff area of the heliport. Provide a general description 
of each private airstrip, registered airport, and registered heliport, 
and state the distance of each from the centerline of the proposed 
transmission line. Include copies of any consultation with the FAA.
    (6) Describe any areas crossed by, or within 0.25 mile of, the 
proposed transmission project facilities that are included in, or are 
designated for study for inclusion in: the National Wild and Scenic 
Rivers System (16 U.S.C. 1271), the National Trails System (16 U.S.C. 
1241), or a wilderness area designated under the Wilderness Act (16 
U.S.C. 1132).
    (7) For facilities within a designated coastal zone management 
area, provide a consistency determination or evidence that the 
applicant has requested a consistency determination from the State's 
coastal zone management program.
    (8) Describe the impact the project will have on present uses of 
the affected areas as identified above, including commercial uses, 
mineral resources, recreational areas, public health and safety, and 
the aesthetic value of the land and its features. Describe any 
temporary or permanent restrictions on land use resulting from the 
project.
    (9) Describe proposed mitigation measures intended for all special 
use areas identified under this section.
    (10) Identify the area of potential visual effects from the 
proposed project. Describe the visual characteristics of the lands and 
waters affected by the project, including any visually sensitive areas, 
visual classifications, and key viewpoints in the project vicinity. 
Describe how the transmission line project facilities will impact the 
visual character and scenic quality of the landscape and proposed 
mitigation measures to lessen these impacts. Provide visual aids to 
support the textual descriptions required by this paragraph.
    (11) Demonstrate that applications for rights-of-way authorizations 
or other proposed land uses have been, or soon will be, filed with 
Federal land-management agencies with jurisdiction over land that would 
be affected by the project.
    (m) Resource Report 11--Air quality and environmental noise. This 
report must 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. Resource Report 11 must:
    (1) 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 (42 U.S.C. 7401 et seq.), 
and provide the distance from the project facilities to any Class I 
area in the project vicinity.
    (2) For proposed substations and appurtenant facilities, 
quantitatively describe existing noise levels at nearby noise-sensitive 
areas, such as schools, hospitals, or residences.
    (i) Report existing noise levels as the Leq (day), Leq (night), and 
Ldn and include the basis for the data or estimates.
    (ii) Include a plot plan that identifies the locations and duration 
of noise measurements, time of day, weather conditions, wind speed and 
direction,

[[Page 2791]]

engine load, and other noise sources present during each measurement.
    (iii) Identify any State or local noise regulations that may be 
applicable to the project facilities.
    (3) Estimate emissions from the proposed project and the 
corresponding impacts on air quality and the environment.
    (i) Estimate the reasonably foreseeable emissions from 
construction, operation, and maintenance of the project facilities 
(such as emissions from tailpipes, equipment, fugitive dust, open 
burning, and substations) expressed in tons per year. Include 
supporting calculations, emissions factors, fuel consumption rates, and 
annual hours of operation.
    (ii) For each designated nonattainment or maintenance area, provide 
a comparison of the emissions from construction, operation, and 
maintenance of the project facilities with the applicable General 
Conformity thresholds (40 CFR part 93).
    (iii) Identify the corresponding impacts on communities and the 
environment in the project area from the estimated emissions.
    (iv) Describe any proposed mitigation measures to control emissions 
identified under this section.
    (4) Estimate the impact of the proposed project on the noise 
environment.
    (i) Provide a quantitative estimate of the impact of transmission 
line operation on noise levels at the edge of the proposed right-of-
way, including corona, insulator, and Aeolian noise. For proposed 
substations and appurtenant facilities, provide a quantitative estimate 
of the impact of operations on noise levels at nearby noise-sensitive 
areas, including discrete tones.
    (A) Include step-by-step supporting calculations or identify the 
computer program used to model the noise levels, input and raw output 
data and all assumptions made when running the model, far-field sound 
level data for maximum facility operation, and source of the data.
    (B) Include sound pressure levels for project facilities, dynamic 
insertion loss for structures, and sound attenuation from the project 
facilities to the edge of the right-of-way or to nearby noise-sensitive 
areas (as applicable).
    (C) Far-field sound level data measured from similar project 
facilities in service elsewhere, when available, may be substituted for 
manufacturer's far-field sound level data.
    (D) 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 (Ldn) of 
55 dBA at any pre-existing noise-sensitive area.
    (ii) Describe the impact of proposed construction activities, 
including any nighttime construction, on the noise environment. 
Estimate the impact of any horizontal directional drilling, pile 
driving, or blasting on noise levels at nearby noise-sensitive areas 
and include supporting assumptions and calculations.
    (iii) Describe any proposed mitigation measures to reduce noise 
impacts identified under this section.
    (n) Resource Report 12--Alternatives. This report must describe 
alternatives to the project and compare the environmental impacts (as 
identified in Resource Reports 1 through 11 of this section) of such 
alternatives to those of the proposal. * * * Resource Report 12 must:
* * * * *
    (2) * * *
    (i) * * * Where applicable, identify the location of such 
alternatives on maps of sufficient scale to depict their relationship 
to the proposed action and existing rights-of-way; and
    (ii) * * * Provide comparative tables showing the differences in 
environmental characteristics for the alternatives and proposed action. 
* * *
    (o) Resource Report 13--Reliability and safety. This report must 
address the potential hazards to the public from failure of facility 
components resulting from, among other things, accidents or natural 
catastrophes; how these events would affect reliability; and proposed 
procedures and design features to reduce potential hazards. Resource 
Report 13 must:
    (1) Discuss hazards, environmental impacts, and service 
interruptions that could reasonably ensue from failure of the proposed 
facilities.
    (2) Describe proposed measures to protect the public from failure 
of the proposed facilities (including coordination with local 
agencies).
    (3) Discuss proposed design and operational measures to avoid or 
reduce risk, including any measures to ensure that the proposed project 
facilities would be resilient against future climate change impacts in 
the project area.
    (4) Discuss proposed contingency plans for maintaining service or 
reducing downtime to ensure that the proposed facilities would not 
adversely affect the bulk electric system in accordance with applicable 
North American Electric Reliability Corporation reliability standards.
    (5) Describe proposed measures to exclude the public from hazardous 
areas. * * *
* * * * *
    (7) Discuss the potential for electrical noise from electric and 
magnetic fields, including shadowing and reradiation, as they may 
affect health or communication systems along the transmission right-of-
way.
* * * * *
    (p) Resource Report 14--Design and engineering. * * * If the 
version of this report submitted with the application is preliminary in 
nature, the applicant must state that in the application. * * *
* * * * *
    (2) * * * If a permit is granted on the basis of preliminary 
designs, the applicant must submit final design drawings for written 
approval by the Director of the Office of Energy Projects prior to 
commencement of any construction of the project.
    (3) * * *
    (i) An assessment of the suitability of the locations of proposed 
transmission line towers, substations, and appurtenant structures based 
on geological and subsurface investigations, including investigations 
of soils and rock borings and tests evaluating all foundations and 
construction materials;
* * * * *
    (iii) An identification of all borrow areas and quarry sites and an 
estimate of required quantities of suitable construction material; and
* * * * *
    (4) The applicant must submit the supporting design report 
described in paragraph (p)(3) of this section at the time preliminary 
and final design drawings are filed. If the report contains preliminary 
drawings, it must be designated as a ``Preliminary Supporting Design 
Report.''

    Note: The following appendix will not appear in the Code of 
Federal Regulations.

Appendix

Draft Version: Landowner Bill of Rights in Federal Energy Regulatory 
Commission Electric Transmission Proceedings

    1. You have the right to receive compensation if your property 
is necessary for the construction or modification of an authorized 
project. The amount of such compensation would be determined through 
a negotiated easement agreement between you and the entity applying 
to the Federal Energy Regulatory Commission (Commission) for 
authorization to construct a transmission line (applicant) or 
through an eminent domain proceeding in the appropriate Federal or 
State court. The applicant cannot seek to take a property by

[[Page 2792]]

eminent domain unless and until the Commission approves the 
application, unless otherwise provided by State or local law.
    2. You have the right to request the full name, title, contact 
information including email address and phone number, and employer 
of every representative of the applicant that contacts you about 
your property.
    3. You have the right to access information about the proposed 
project through a variety of methods, including by accessing the 
project website that the applicant must maintain and keep current, 
by visiting a central location in your county designated by the 
applicant for review of project documents, or by accessing the 
Commission's eLibrary online document information system at 
www.ferc.gov.
    4. You have the right to participate, including by filing 
comments and, after an application is filed, by intervening in any 
open Commission proceedings regarding the proposed transmission 
project in your area. Deadlines for making these filings may apply. 
For more information about how to participate and any relevant 
deadlines, contact the Commission's Office of Public Participation 
by phone (202-502-6595) or by email ([email protected]).
    5. When contacted by the applicant or a representative of the 
applicant either in person, by phone, or in writing, you have the 
right to communicate or not to communicate. You also have the right 
to hire counsel to represent you in your dealings with the applicant 
and to direct the applicant and its representatives to communicate 
with you only through your counsel.
    6. The applicant may seek to negotiate a written easement 
agreement with you that would govern the applicant's and your rights 
to access and use the property that is at issue and describe other 
rights and responsibilities. You have the right to negotiate or to 
decline to negotiate an easement agreement with the applicant; 
however, if the Commission approves the proposed project and 
negotiations fail or you chose not to engage in negotiations, there 
is a possibility that your property could be taken through an 
eminent domain proceeding, in which case the appropriate Federal or 
State court would determine fair compensation.
    7. You have the right to hire your own appraiser or other 
professional to appraise the value of your property or to assist you 
in any easement negotiations with the applicant or in an eminent 
domain proceeding before a court.
    8. Except as otherwise provided by State or local law, you have 
the right to grant or deny access to your property by the applicant 
or its representatives for preliminary survey work or environmental 
assessments, and to limit any such grant in time and scope.
    9. In addition to the above rights, you may have additional 
rights under Federal, State, or local laws.

United States of America

Federal Energy Regulatory Commission

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

(Issued December 15, 2022)
DANLY, Commissioner, concurring:

    1. I concur with the issuance of this Notice of Proposed 
Rulemaking (NOPR) because it is not my habit to oppose any but the 
most infirm proposed rules. Today's issuance purports to be the 
first step in discharging the Commission's obligations under 
Infrastructure Investment and Jobs Act,\1\ which, among other 
things, included amendments to certain provisions of section 216 of 
the Federal Power Act \2\ (FPA) to clarify Federal ``backstop'' 
siting of electric transmission facilities in limited circumstances 
when states fail to act on certain transmission proposals. The NOPR 
itself, however, largely appears to be an exercise to extend various 
environmental reviews typically seen in natural gas project 
proceedings--a regime in which the majority of the Commission has 
been imposing pervasive, standardless environmental tests well 
beyond our statutory authority.
---------------------------------------------------------------------------

    \1\ Public Law 117-58, Sec.  40105, 135 Stat. 429.
    \2\ 16 U.S.C. 824p (2018).
---------------------------------------------------------------------------

    2. I agree that our ``backstop'' siting authority is limited 
under the Commission's governing statutes. I disagree that the 
limited ``backstop'' siting authority that the Commission has been 
granted also confers extensive powers as an environmental and social 
regulator. Regardless, the statute certainly did not extend our 
obligations beyond the requirements we have always observed in order 
to discharge our duties under the National Environmental Policy Act 
(NEPA).
    3. In going far beyond that which is required by the 
Infrastructure Investment and Jobs Act, this NOPR instead appears to 
represent the majority's ``environmental justice'' wish list. 
Accordingly, I specifically solicit citations to the provisions in 
section 216, as amended--or any other statutory basis--to support 
each revision proposed in the NOPR (such citations are often omitted 
in the NOPR itself).\3\ Once statutory authority is certain, 
commenters should further provide legal analysis and evidence 
whether the proposed rule constitutes good policy, such as, for 
example, whether it will be beneficial in determining whether to 
site electric transmission projects when the states have not done 
so, or whether the rule will tend to ensure almost nothing is ever 
sited.
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    \3\ As amended by the Infrastructure Investment and Jobs Act, 
FPA section 216(a)(4)(G) provides that in determining whether to 
designate a national interest electric transmission corridor the 
Secretary of Energy ``may consider'' whether the designation 
``avoids and minimizes, to the maximum extent practicable, and 
offsets to the extent appropriate and practicable, sensitive 
environmental areas and cultural heritage sites.'' 16 U.S.C. 
824p(a)(4), 824p(a)(4)(G)(ii). As amended, FPA section 216(e)(1) 
provides that a permit holder may acquire rights-of-way by the 
exercise of eminent domain if, among other things, ``in the 
determination of the Commission, the permit holder has made good 
faith efforts to engage with landowners and other stakeholders early 
in the applicable permitting process.'' Id. Sec.  824p(e)(1). It is 
stretching these amendments to FPA section 216 beyond their breaking 
point to use them to justify the scope of environmental review the 
Commission now proposes in the NOPR.
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    4. For example, we propose to ``require [electric transmission 
project] applicants to develop and file an Environmental Justice 
Public Engagement Plan as part of their Project Participation Plan 
under Sec.  50.4(a)(4).'' \4\ The Commission does not cite any 
statute that requires or even permits us to require this 
Environmental Justice Public Engagement Plan, instead citing 
Executive Orders, at least one of which the majority acknowledges 
does not bind the Commission.\5\ The Commission further ``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.'' \6\ 
What does it mean to be ``overburdened by pollution?'' Is this a 
concept that the Commission--a Federal energy rate regulator--is 
authorized and equipped to define or establish? Will the regulated 
community of transmission developers have any idea how to comply 
with such ambiguities? Is there anything about being 
``overburdened'' in the Infrastructure Investment and Jobs Act?
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    \4\ Applications for Permits to Site Interstate Elec. 
Transmission Facilities, 181 FERC ] 61,205 at P 31 (2022) (NOPR); 
see also 18 CFR 50.4(a).
    \5\ NOPR, 181 FERC ] 61,205 at PP 30, 65, n.72. The Commission 
also proposes to require a new ``Environmental Justice Report'' as 
part of its regulations implementing NEPA. See id. PP 65-67. Again, 
I would like to know where the Commission gets this authority. We 
also ``expect applicants to utilize the latest guidance and data 
from [the Council on Environmental Quality], [the Environmental 
Protection Agency], the Census Bureau, and other authoritative 
sources.'' Id. P 67. Does the ``latest'' guidance and data include 
anything issued after pre-filing but before permitting? What about 
the day after permitting? What about during the pendency of a 
rehearing request? And who or what are ``other authoritative 
sources?''
    \6\ Id. P 32 (emphasis added).
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    5. The Commission also seeks to decree that the Environmental 
Justice Public Engagement Plan must ``describe the manner in which 
the applicant will reach out to environmental justice communities 
about potential mitigation,'' \7\ or, in other words, include a 
mitigation plan, even though ``NEPA not only does not require 
agencies to discuss any particular mitigation plans that they might 
put in place, it does not require agencies--or third parties--to 
effect any.'' \8\ Commenters should tell us how the Commission can 
impose such a requirement when the Supreme Court and the D.C. 
Circuit have ruled otherwise.
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    \7\ Id. P 31.
    \8\ Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 
206 (D.C. Cir. 1991) (citing Robertson v. Methow Valley Citizens 
Council, 490 U.S. 332, 353 & n.16 (1989)).
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    6. By way of further example, as part of its NEPA review, the 
Commission proposes to require applicants to submit ``Resource 
Report 10'' on ``Air quality and environmental noise.'' \9\ 
``Proposed Resource Report 10 would require the applicant to 
estimate emissions from the proposed project . . . and describe 
proposed measures to mitigate the impacts.'' \10\ ``Specifically, 
the

[[Page 2793]]

applicant must provide the reasonably foreseeable emissions from 
construction, operation, and maintenance of the project facilities . 
. . and describe any proposed mitigation measures to control 
emissions.'' \11\ Someone better propose some standards because 
these proposals sound much more like aspirational goals than clear 
rules that a developer could figure out how to comply with. What are 
``foreseeable emissions'' from ``maintenance,'' for example? If a 
transmission line falls in a storm, is a transmission developer 
supposed to predict ``reasonably foreseeable'' emissions from the 
truck the utility line worker uses to drive out to the site? If the 
line worker uses a rechargeable ratchet to loosen a bolt, is the 
transmission developer supposed to predict the ``reasonably 
foreseeable'' emissions from electric generation required to 
recharge the battery? And, again, by what authority do we propose to 
require a mitigation plan over directly contrary judicial precedent? 
\12\
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    \9\ NOPR, 181 FERC ] 61,205 at P 69.
    \10\ Id.
    \11\ Id. P 70.
    \12\ See supra P 5 n.8.
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    7. As another example, the Commission proposes to ``add language 
to Sec.  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.'' \13\ Though in a different 
context and sounding in a different statute, the majority imposed a 
similar policy, including the issuance of stays, for natural gas 
projects, over my dissent.\14\ I solicit comment whether we have 
this authority, and if so, whether it is sound policy to exercise it 
as part of our limited ``backstop'' siting jurisdiction.
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    \13\ NOPR, 181 FERC ] 61,205 at P 47.
    \14\ See Limiting Authorizations to Proceed with Constr. 
Activities Pending Rehearing, Order No. 871-B, 175 FERC ] 61,098 
(Danly, Comm'r, dissenting), order on reh'g, 176 FERC ] 61,062 
(2021) (Danly, Comm'r, dissenting).
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    8. I have similar questions to those raised here about nearly 
every aspect of the NOPR.\15\ The powers that Congress has granted 
the Commission are narrow, as has been acknowledged, but they are 
profound and, depending upon how the Commission implements those 
authorities, can have a lasting effect on the development of the 
transmission system. Accordingly, I invite comments from every 
interested party on my questions and any other aspect of the 
proposed rules so that the Commission will have a full record as it 
considers whether to promulgate these or related rules.
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    \15\ For example, I question whether we are complying with the 
purpose of the act to engage in parallel activity with the states 
during the pendency of the states' review of transmission project 
proposals, a subject that Commissioner Christie has thoroughly 
canvassed in his separate statement to this order.
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    9. It is hard to reconcile today's proposed rule, adorned as it 
is by burdensome, unnecessary requirements, with what appears, at 
the merest glance, to have been the purpose of Congress when passing 
the Infrastructure Investment and Jobs Act--to facilitate, not 
inhibit, the siting of transmission infrastructure.
    For these reasons, I respectfully concur.

James P. Danly,
Commissioner.

United States of America

Federal Energy Regulatory Commission

Applications for Permits to Site Interstate Electric Transmission 
Facilities Docket No. RM22-7-000
(Issued December 15, 2022)
CHRISTIE, Commissioner, concurring:

    1. Updating the Commission's existing regulations and practices 
governing the Commission's exercise of its transmission siting 
backstop authority is required by a statutory change adopted last 
year by Congress.\1\ While, of course, we must implement the change 
made by Congress, a simple update to our existing regulation would 
have been sufficient. This order,\2\ however, goes beyond merely 
implementing the required conforming changes to our existing 
regulation. So while I concur with putting these amendments out for 
comment, I look forward to reviewing the comments on this proposal, 
particularly from organizations representing State regulators.
---------------------------------------------------------------------------

    \1\ The Infrastructure Investment and Jobs Act (IIJA), Public 
Law 117-58, 40105, 135 Stat. 429 (2021), amended section 216 of the 
Federal Power Act (FPA) in certain respects. Most notably, it 
explicitly allows the Commission to grant transmission siting 
authority even when a State has denied an application within one 
year. 16 U.S.C. 824p(b)(1)(C) (as amended by IIJA section 1221).
    \2\ Applications for Permits to Site Interstate Electric 
Transmission Facilities, 181 FERC ] 61,205 (2022) (Backstop Siting 
NOPR).
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    2. Some relevant history: States have historically had sole 
authority for permitting and siting transmission lines (two very 
separate functions), and for good reasons. Every power line, from 
the small ones below 100 kV to the huge 765 kV lines, visible for 
many miles around, comes with its own unique set of facts and local 
concerns. One of those concerns--let us not forget--is the cost, and 
that cost will be paid, in some portion, by consumers in the situs 
state, through FERC formula rates. So, whenever the day comes when 
FERC orders a line built after a State has found it was not needed 
or found the cost was not reasonable and prudent, FERC will not only 
be choosing a route that was rejected by State regulators, but FERC 
will be ordering the State's consumers to pay for the project, under 
applicable cost allocation rules. And even if the proposed project 
ends up being litigated for years before any steel is in the 
ground--a virtual certainty for a controversial project that was 
rejected by State regulators but imposed by FERC--consumers will 
likely be paying through formula rates for years for pre-
construction costs, which can be substantial.\3\
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    \3\ For example, the Potomac-Appalachian Transmission Highline 
(PATH) Project--which was abandoned, and never even completed--
spawned several years of litigation and imposed many millions of 
dollars in costs (including return on equity) to ratepayers. See 
Newman v. FERC, 27 F.4th 690 (D.C. Cir. 2022) (noting that PATH 
sought recovery through rates of over $121 million in abandonment 
costs alone, charges that were litigated over several years).
---------------------------------------------------------------------------

    3. State regulators are much better prepared to deal with that 
myriad of local concerns, including concerns over routing and costs, 
than FERC. Furthermore, State processes are far more convenient and 
user-friendly than processes at FERC, if for no other reason than 
geographic proximity. So, waiting one full year to allow a State to 
``go first'' and make its decision makes sense for a lot of reasons. 
One obvious reason is that if the line is truly needed, the State 
regulators will in all likelihood approve it, and no FERC staff time 
and resources will need to be expended at all. The whole mantra that 
goes ``the states are blocking needed transmission all over the 
country!'' is simply a political and special-interest narrative. The 
steadily mounting increases over the past decade in transmission 
rate base nationally,\4\ with concomitant skyrocketing increases in 
transmission costs to consumers, blows up the narrative that states 
are systemically blocking needed transmission lines. Contrary to the 
narrative, states need more authority to scrutinize transmission 
projects for need and prudence of cost, not less, to protect 
consumers.
---------------------------------------------------------------------------

    \4\ See, e.g., RRA Regulatory Focus An Overview of Transmission 
Ratemaking in the U.S.--2021 Update, S&P Global Market Intelligence, 
Sept. 16, 2021 (``Growth in aggregate transmission rate base, 2012-
2020'' chart at page 3, showing increase from $57.8 billion to 
$131.7 billion); see also Jim O'Reilly, PJM, AEP transcos drive 
9.17% YOY [year-over-year] increase in US transmission rate base, 
S&P Capital IQ Pro, November 1, 2022 (``Transmission rate base among 
a group of 76 utilities in the U.S. maintained year-over-year growth 
above 9% for the third consecutive year. . . .''.'') (emphasis 
added).
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    4. This proposed regulation changes the practice this Commission 
adopted in 2006 of holding off on all processes here for a year, to 
one in which pre-filing processes will begin, potentially concurrent 
with the initiation of State proceedings.\5\ That change is not 
required by last year's congressional action. It is an act of 
discretion.
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    \5\ Backstop Siting NOPR, 181 FERC ] 61,205 at PP 21-23.
---------------------------------------------------------------------------

    5. Some more history: The Energy Policy Act of 2005 \6\ altered 
the traditional arrangement of State authority by creating FPA 
section 216, which provided this Commission with supplemental or 
``backstop'' siting authority in certain narrow circumstances. This 
authority was limited, not plenary: As discussed in greater detail 
in the order, EPAct 2005 explicitly authorized the Commission to 
exercise transmission siting authority in DOE-designated ``national-
interest'' transmission corridors when a State application had been 
rendered futile because the State lacks authority to act, the 
applicant lacks standing to obtain authority from the State, the 
State attaches conditions rendering the project infeasible, or the 
State fails to act within one year.\7\
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    \6\ Public Law 109-58, 1221, 119 Stat. 594 (2005) (amended 2021) 
(EPAct 2005).
    \7\ See Backstop Siting NOPR, 181 FERC ] 61,205 at PP 2-7.
---------------------------------------------------------------------------

    6. In Order No. 689, the Commission implemented this new FPA 
section 216 authority.\8\ In doing so, it construed that

[[Page 2794]]

authority expansively in two respects. First, it construed the 
statute as vesting siting authority in the Commission even when a 
State acts within a year to deny an application. Second, it 
construed the statute as ``permit[ting] parallel Commission-State 
processes.'' \9\ But these expansive constructions were promptly 
curbed: the first, by the Fourth Circuit Court of Appeals; the 
second, by the Commission itself.
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    \8\ Regulations for Filing Applications for Permits to Site 
Interstate Electric Transmission Facilities, Order No. 689, FERC 
Stats. & Regs. ] 31,234 (2006) (Order No. 689), reh'g denied, 119 
FERC ] 61,154 (2007).
    \9\ Id. P 20; see also id. P 19 (same). I won't opine on whether 
this construction is correct or not--though seemingly reasonable, it 
doesn't seem to be rooted in anything more than an inference from 
the fact that the Commission may act if the State has failed to do 
so within a year--but I will observe that it is not compelled by 
citations to the statutory text or legislative history.
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    7. As for the first, the Fourth Circuit correctly found in 
Piedmont that Congress had not, in fact, authorized the Commission 
to grant an application that had been timely denied by a State.\10\ 
In direct response to the Fourth Circuit's opinion, last year 
Congress expanded the Commission's FPA section 216 a notch further, 
by empowering the Commission essentially to exercise a veto over a 
State's timely decision to deny a transmission siting application. 
In other words, in the IIJA, Congress sought to (and did) overturn 
the key holding in Piedmont.
---------------------------------------------------------------------------

    \10\ Piedmont Envtl. Council v. FERC, 558 F.3d 304 (4th Cir. 
2009) (Piedmont), cert. denied, 558 U.S. 1147 (2010).
---------------------------------------------------------------------------

    8. As for the second, the Commission wisely decided that ``that 
States which have authority to approve the siting of facilities 
should have one full year to consider a siting application without 
there being any overlapping Commission process,'' and therefore 
found that, ``in cases where our jurisdiction rests on FPA section 
216(b)(1)(C), the pre-filing process should not commence until one 
year after the relevant State applications have been filed.'' \11\ 
This policy was not set in stone, of course--the Commission noted 
that it would ``reconsider the issue'' if in the future it turned 
out ``that the lack of a Commission pre-filing process prior to the 
end of the one year is delaying projects or otherwise not in the 
public interest.'' \12\
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    \11\ Order No. 689, FERC Stats. & Regs. ] 31,234 at P 21 
(footnote omitted).
    \12\ Id.
---------------------------------------------------------------------------

    9. This was sound policy in 2006, and I am not convinced that 
the intervening years have taught us that ``the lack of a Commission 
pre-filing process prior to the end of the one year is delaying 
projects or otherwise not in the public interest.'' \13\ Nor did 
Congress, in the IIJA, do anything to suggest that commencement of 
the Commission's pre-filing process should be accelerated--although 
of course it could have.
---------------------------------------------------------------------------

    \13\ Id.
---------------------------------------------------------------------------

    10. Nonetheless, I support this order, in its current form, 
because I believe that the proposal to allow states a 90-day comment 
period following a year of pre-filing processes may afford adequate 
protection for the states and their processes, provided that the 
Commission's pre-filing process does not begin before the relevant 
State processes have been commenced. This order actually invites 
comment on whether FERC's pre-filing processes should be allowed to 
commence prior to the initiation of State proceedings.\14\ I would 
not even have raised that prospect. I ask states in particular to 
review closely and comment on these provisions. There are also other 
examples of this order going beyond where it needed to go.\15\
---------------------------------------------------------------------------

    \14\ Backstop Siting NOPR, 181 FERC ] 61,205 at P 23.
    \15\ For example, the order proposes a new regulatory definition 
of ``environmental justice community.'' Id. P 32. This concept has 
been in flux since it was created and it continues to evolve; 
nothing in the IIJA's amendments to FPA section 216 either 
explicitly or implicitly requires the Commission to adopt any such 
definition at all herein.
---------------------------------------------------------------------------

    11. To be clear, I have no concern with informal communications 
between applicants and Commission staff before the states have had a 
year to act. Nor do I have any concern with allowing an initial 
consultation or other preparatory work during this one-year period. 
But as discussed above, I believe strongly that the states should 
have an opportunity to complete their processes without any 
impediment or distraction from Commission proceedings.
    12. I support revising the Commission's Regulations to reflect 
the modest expansion of its authority worked on FPA section 216 by 
the IIJA, and I am inclined to believe that the 90-day comment 
period afforded to states at the close of a year's worth of pre-
filing may adequately protect a State's interests. To that extent, I 
support putting this order out for comment and I look forward to the 
comments the Commission will receive.
    For these reasons, I concur.

Mark C. Christie,
Commissioner.

[FR Doc. 2022-27716 Filed 1-13-23; 8:45 am]
BILLING CODE 6717-01-P


