[Federal Register Volume 88, Number 10 (Tuesday, January 17, 2023)]
[Proposed Rules]
[Pages 2770-2794]
[FR Doc No: 2022-27716]

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

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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,<PHONE_NUMBER>, [email protected].
Cleo Deschamps (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426,<PHONE_NUMBER>, [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

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

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

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

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,

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

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)).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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).

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.
---------------------------------------------------------------------------

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

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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

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

    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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

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

    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\
---------------------------------------------------------------------------

    \63\ Id. 380.16(l).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \64\ Id. 380.16(m).
---------------------------------------------------------------------------

    62. As explained above, the Fourth Circuit's 2009 Piedmont decision
vacated Order No. 689's amendments to the Commission's NEPA regulations

because the court found that the Commission had failed to consult with
CEQ prior to issuing the revised regulations.\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.
---------------------------------------------------------------------------

    \65\ See supra P 11.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

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

    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.
---------------------------------------------------------------------------

    \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

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.
---------------------------------------------------------------------------

    \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

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

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

[email protected] or by phone<PHONE_NUMBER>.
    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)

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

    (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);

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

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