[Federal Register Volume 71, Number 231 (Friday, December 1, 2006)]
[Rules and Regulations]
[Pages 69440-69476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-20001]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 50 and 380

[Docket No. RM06-12-000; Order No. 689]


Regulations for Filing Applications for Permits to Site 
Interstate Electric Transmission Facilities

Issued November 16, 2006.
AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule

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SUMMARY: The Federal Energy Regulatory Commission (Commission) is 
implementing new regulations in accordance with section 1221 of the 
Energy Policy Act of 2005 to establish filing requirements and 
procedures for entities seeking to construct electric transmission 
facilities. The regulations will coordinate the processing of Federal 
authorizations and environmental review of electric transmission 
facilities in national interest transmission corridors.

DATES: Effective Date: This rule will become effective February 2, 
2007.

FOR FURTHER INFORMATION CONTACT:
John Schnagl, Office of Energy Projects, Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426. (202) 502-
8756. [email protected].
Carolyn Van Der Jagt, Office of the General Counsel, Federal Energy 
Regulatory Commission, 888 First Street, NE., Washington, DC 20426. 
(202) 502-8620. [email protected].

SUPPLEMENTARY INFORMATION:

 
                            TABLE OF CONTENTS
 
                                                              Paragraph
                                                               numbers
 
I. Background..............................................            2
II. Discussion.............................................           11
    A. National Interest Transmission Corridors............           11
    B. Permit Findings.....................................           14
        1. Commission Jurisdiction under 216(b)(1).........           14
            a. One Year Clock/Pre-filing...................           16
            b. Withholding/Conditioning Approval...........           24
            c. Other Jurisdictional Issues.................           35
        2. Other Findings under 216(b)(2) through (6)......           37
    C. Project Participation...............................           45
        1. Landowners......................................           50
        2. Stakeholders and Notification...................           60
        3. Document Availability...........................           73
        4. Participation Process...........................           74
    D. Pre-filing..........................................           90
        1. Initial Consultation Issues.....................           92
        2. Third-party Contractors.........................          100
        3. Subsequent Filing Requirements..................          103
        4. Lead Agency Issues/Coordinating Federal Permits.          105
        5. Timeframe for Pre-filing........................          112
        6. Review of Director's Decisions in Pre-filing....          116
    E. Application Requirements............................          118
    F. Filing Requirements.................................          120
        1. State Record....................................          122
        2. Exhibits........................................          126
            a. Exhibit E--Maps.............................          129
            b. Exhibit F--Environmental Requirements.......          130

[[Page 69441]]

 
                i. Section 380.5-Actions that Require EAs..          134
                ii. Section 380.6 Actions that Require EISs          135
                iii. Section 380.10--Participation in                137
                 Commission Proceeding.....................
                iv. Resource Report 1--General Requirements          138
                v. Resource Report 2--Water Use and Quality          142
                vi. Resource Report 3-Fish, Wildlife, and            144
                 Vegetation................................
                vii. Resource Report 4--Cultural Resources.          146
                viii. Resource Report 5--Socioeconomics....          150
                ix. Resource Report 6--Geological Resources          159
                x. Resource Report 7--Soils................          160
                xi. Resource Report 8--Land Use,                     162
                 Recreation, and Aesthetics................
                xii. Resource Report 9--Alternatives.......          175
                xiii. Resource Report 10--Reliability and            180
                 Safety....................................
                xiv. Resource Report 11--Design and                  182
                 Engineering...............................
            c. Exhibit G--Engineering Data.................          185
            d. Exhibit H--System Analysis Data.............          188
            e. Exhibit I--Project Cost and Financing.......          192
    G. Critical Energy Infrastructure Information..........          194
    H. Accepting/Rejecting Applications....................          198
    I. Hearings............................................          199
    J. Permit Conditions...................................          204
    K. State and Local Permits.............................          213
    L. Subsequent Modifications to Facilities..............          219
    M. Definitions.........................................          221
    N. Eminent Domain Issues...............................          225
    O. Filing Fees/Funding.................................          228
    P. Technical Conferences...............................          229
III. Information Collection Statement......................          231
IV. Environmental Analysis.................................          236
V. Regulatory Flexibility Act..............................          237
VI. Document Availability..................................          238
VII. Effective Date and Congressional Notification.........          241
 

Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. Kelly, 
Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff.

    1. On June 16, 2006, the Federal Energy Regulatory Commission 
(Commission) issued a Notice of Proposed Rulemaking (NOPR) in this 
proceeding.\1\ In the NOPR, the Commission proposed regulations in 
accordance with section 1221 of the Energy Policy Act of 2005 (EPAct 
2005) \2\ to implement filing requirements and procedures for entities 
seeking permits to construct or modify electric transmission facilities 
under the circumstances set forth in that section. This Final Rule 
considers comments submitted in response to the NOPR, and as a result, 
makes various modifications to the regulatory text described in the 
NOPR. Following the issuance of this rule, we will convene regional 
conferences to assist stakeholders in its implementation.
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    \1\ 71 FR 36258 (June 26, 2006); FERC Stats. & Regs. ] 32,605 
(2006).
    \2\ Pub. L. 109-58, 119 Stat. 594 (2005).
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I. Background

    2. On August 8, 2005, EPAct 2005 became law. Section 1221 of EPAct 
2005 adds a new section 216 to the Federal Power Act (FPA), providing 
for Federal siting of electric transmission facilities under certain 
circumstances.
    3. New FPA section 216 requires that the Secretary of the 
Department of Energy (DOE or Secretary) identify transmission 
constraints. It mandates that the Secretary conduct a study of electric 
transmission congestion within one year of enactment and every three 
years thereafter, and that the Secretary then issue a report. The 
Secretary is further empowered to designate certain constrained areas 
as national interest electric transmission corridors (National 
Corridors).
    4. FPA section 216(b) provides that the Commission may issue 
permits to construct or modify electric transmission facilities in a 
National Corridor under certain circumstances. The Commission has the 
authority to issue permits to construct or modify electric transmission 
facilities if it finds that: (1) A State in which such facilities are 
located does not have the authority to approve the siting of the 
facilities or to consider the interstate benefits expected to be 
achieved by the construction or modification of the facilities; (2) the 
applicant is a transmitting utility but does not qualify to apply for 
siting approval in the State because the applicant does not serve end-
use customers in the State; or (3) the State commission or entity with 
siting authority withholds approval of the facilities for more than one 
year after an application is filed or one year after the designation of 
the relevant national interest electric transmission 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.\3\
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    \3\ Under FPA section 216(i)(4), the Commission may not issue a 
permit for facilities within a State that is a party to an 
interstate compact establishing a regional transmission siting 
agency unless the members of the compact are in disagreement and the 
Secretary of the Department of Energy makes certain findings.
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    5. Additionally, under FPA sections 216 (b)(2) through (6), before 
issuing a permit the Commission must find that the proposed facility: 
(1) Will be used for the transmission of electric energy in interstate 
commerce; (2) is consistent with the public interest; (3) will 
significantly reduce transmission congestion in interstate commerce and 
protect or benefit consumers; (4) is consistent with sound national 
energy policy and will enhance energy

[[Page 69442]]

independence; and (5) will maximize, to the extent reasonable and 
economical, the transmission capabilities of existing towers or 
structures.
    6. New FPA section 216(h)(2) designates DOE as lead agency to 
coordinate all Federal authorizations needed to construct proposed 
electric transmission facilities in National Corridors. Under FPA 
section 216(h)(4)(A), to ensure timely efficient reviews and permit 
decisions, 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.\4\ Section 216(h)(5)(A) of the FPA requires that DOE as lead 
agency, in consultation with the other affected agencies, prepare a 
single environmental review document that would be used as the basis 
for all decisions for the proposed projects under Federal law.
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    \4\ 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, 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 delegated paragraphs (2), (3), 
(4)(A)-(B), and (5) of FPA section 216(h) to the Commission as they 
apply to proposed facilities in designated National Corridors for which 
an application for authority to construct has been submitted to the 
Commission.\5\ Specifically, the Secretary delegated to the Commission 
DOE's lead agency responsibilities for the purpose of coordinating all 
applicable Federal authorizations and related environmental review and 
preparing a single environmental review document for facilities falling 
within the Commission's siting jurisdiction. With respect to such 
projects, the Commission will establish prompt and binding intermediate 
milestones and ultimate deadlines for the review, and ensure that all 
Federal permits are issued, and reviews are completed, within a year or 
as soon as practicable thereafter.
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    \5\ Department of Energy Delegation Order No. 00-004.00A.
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    8. On August 8, 2006, DOE issued its National Electric Transmission 
Congestion Study that examined transmission congestion and constraints 
and identified affected transmission paths in many areas of the 
nation.\6\ DOE states that it expects the study to open a dialogue with 
stakeholders in areas of the Nation where congestion is a matter of 
concern, focusing on ways in which these problems might be alleviated. 
DOE states that where appropriate in relation to the congestion areas, 
it may designate National Corridors.
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    \6\ Department of Energy, National Electric Transmission 
Congestion Study, Executive Summary (2006), http://www.oe.energy.gov/energy_policy/epa_sec1221.htm#Timeline (follow 
``Congestion Study Executive Summary'' hyperlink).
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    9. Also on August 8, 2006, several Federal agencies including DOE 
and the Commission entered into a Memorandum of Understanding on Early 
Coordination of Federal Authorization and Related Environmental Reviews 
Required in Order to Site Electric Transmission Facilities (MOU).\7\ 
The purpose of the MOU is to establish a framework for early 
cooperation and participation that will enhance coordination of all 
applicable land use authorizations, related environmental, cultural, 
and historic preservation reviews, and any other approvals that may be 
required under Federal law in order to site an electric transmission 
facility.
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    \7\ The other agencies include the Department of Defense, the 
Department of Agriculture, the Department of the Interior, the 
Department of commerce, the Environmental Protection Agency, the 
Council on Environmental Quality, and the Advisory Council on 
Historic Preservation.
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    10. FPA section 216(c)(2) requires that the Commission 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. The 
Commission is implementing those regulations in a new part 50 of 
existing subchapter B of its regulations.

II. Discussion

A. National Interest Transmission Corridors

    11. As stated, on August 8, 2006, DOE issued its National Electric 
Transmission Congestion Study and stated that where appropriate in 
relation to the congestion areas, it may designate National Corridors. 
Once DOE designates a National Corridor, the Commission has the 
authority under FPA section 216(b) to issue permits to construct or 
modify electric transmission facilities in such a corridor under 
certain circumstances.
    12. The Western Interstate Energy Board and Committee on Regional 
Electric Power Cooperation (Western Energy Board) and Western 
Governor's Association (Western Governors) request that the Commission 
delay issuing the Final Rule until DOE acts on establishing National 
Corridors. Section 216(c)(2) of the FPA requires that the Commission 
issue rules specifying the form of the application, the information to 
be contained in the application, and the manner of service and notice 
of the permit application on interested persons. While the Commission 
has no authority to issue a permit unless a facility is in a National 
Corridor, this does not affect the Commission's ability to put in place 
the filing requirements that will apply once National Corridors are 
designated. The Commission, therefore, declines to delay issuance of 
the Final Rule. The Commission believes that prompt issuance of the 
Final Rule, coupled with regional conferences to discuss its 
implementation, is in the public interest and provides timely notice to 
stakeholders of the procedures that will apply to applications 
submitted under FPA section 216.
    13. American Electric Power Service Corporation (AEP) requests that 
the Commission define what constitutes a National Corridor and whether 
the designation is a permanent one. Massachusetts Energy and Facilities 
Siting Board (Massachusetts Energy Board) requests that the Commission 
define the ends, geographic dimensions, and specified boundaries for a 
National Corridor. U.S. Department of the Interior (DOI) also requests 
clarification on what constitutes a National Corridor. The Commission 
declines to make such rulings. DOE, not the Commission, is responsible 
for designating and defining the National Corridors under EPAct 2005. 
Thus, it would be inappropriate for the Commission to establish an 
independent definition in the Final Rule or opine on whether a corridor 
designation is a permanent one.

B. Permit Findings

1. Commission Jurisdiction Under 216(b)(1)
    14. Under FPA section 216(b)(1), the Commission has the authority 
to issue permits to construct or modify electric transmission 
facilities if: (A) A State in which the transmission facilities are to 
be constructed or modified does not have the authority to--(i) approve 
the siting of the facilities; or (ii) consider the interstate benefits 
expected to be achieved by the proposed construction or modification of 
transmission facilities in the State; (B) the applicant for a permit is 
a transmitting utility under this Act but does not qualify to apply for 
a permit or siting approval for the proposed project in a State because 
the applicant does not serve end-use customers in the State; or (C) a 
State commission or other entity that has

[[Page 69443]]

authority to approve the siting of the facilities has--(i) withheld 
approval for more than 1 year after the filing of an application or 1 
year after the designation of the relevant national interest electric 
transmission corridor, whichever is later; or (ii) conditioned its 
approval in such a manner that the proposed construction or 
modification will not significantly reduce transmission congestion in 
interstate commerce or is not economically feasible.
    15. Numerous commenters request that the Commission specifically 
address what it will require of applicants to establish the basis and 
supporting rationale for the Commission's claiming jurisdiction over 
proposed electric transmission facilities.\8\ Specifically, they 
request that the Commission clarify how it intends to determine when 
the clock starts and stops for the one-year time period for State 
action on siting requests under FPA section 216(b)(1)(C). They also 
request that the Commission clarify under what circumstances it will 
determine that a State has withheld approval and what conditions in a 
State authorization the Commission will consider sufficient to trigger 
Commission jurisdiction. The commenters also request that the 
Commission generally explain how, and when, it will make the 
determination that it indeed has jurisdiction over a proposed project.
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    \8\ American Public Power Association (APPA), American 
Transmission Co. (American Transmission), California Resources 
Agency (CA Resources), Edison Electric Institute (EEI), Kentucky 
Public Service Commission (Kentucky PSC), New York Department of 
Public Service (DPS), New York State Senator Wright (Senator 
Wright), Southern Company Services (Southern Company), Southern 
California Edison Co. (SoCal Edison), Washington Energy Facility 
Site Evaluation Council (Washington Council), Western Energy Board, 
Western Governors, and the Wilderness Society (Wilderness).
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a. One Year Clock/Pre-Filing
    16. Many commenters request that the Commission specifically 
address when the one-year period for State processing of an application 
will commence. They state that the Commission should specify that the 
one-year clock will not start running until the State determines that 
the application submitted to it is final and in compliance with the 
State's filing requirements.\9\ Several commenters contend that the 
States should have the ability to re-start the one-year review period 
if the applicant significantly modifies or makes substantive changes to 
its application.\10\ The Wilderness Society (Wilderness) states that 
the Commission should require that the applicant prove that it made a 
good faith effort to comply with State siting and permitting 
requirements. The Western Energy Board requests that the Commission 
clarify that an applicant who has not obtained the required Federal 
permit findings in support of a State application has not filed a 
complete State application. Iowa Board states that one-year time period 
should not include periods of appellate review.
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    \9\ Allegheny Power (Allegheny), California Public Utilities 
Commission (California PUC), Iowa Utilities Board (Iowa Board), 
Massachusetts Energy Board, National Association of Regulatory 
Utility Commissioners (NARUC), Pennsylvania Public Utilities 
Commission (Pennsylvania PUC), Pepco Holdings, Potomac Electric 
Power Co., Delmarva Power & Light Co., and Atlantic City Electric 
Co. (PHI Companies), San Diego Gas & Electric (SDG&E), Western 
Energy Board, Public Service Commission of Wisconsin (Wisconsin 
PSC), and Washington Council.
    \10\ Iowa Board, NARUC, and Wisconsin PSC.
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    17. Several commenters also request that the Commission require an 
applicant demonstrate how its proposed application has met the 
statutory requirements for Commission jurisdiction prior to initiating 
the pre-filing process.\11\ Others request that the Commission begin 
the pre-filing process while the State process is ongoing.\12\
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    \11\ CA Resources, Communities, Iowa Board, NARUC, New York PSC, 
Senator Wright, SoCal Edison, Washington Council, and Western Energy 
Board.
    \12\ APPA, AEP, Allegheny, Southern Companies, National Grid USA 
(National Grid), SDG&E, National Rural Electric Cooperative 
Association (NRECA), and Virginia Electric and Power Co. (Virginia 
Electric).
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    18. Communities Against Regional Interconnect (Communities) contend 
that permitting the pre-filing process to be initiated simultaneous 
with the ongoing State process represents nothing more than the 
Commission's desire to ``pounce'' at the moment its jurisdiction is 
triggered. Communities, CA Resources, and New York DPS are concerned 
that simultaneous filings could result in an unwarranted and massive 
expenditure of time and resources, if it turns out the Commission lacks 
jurisdiction to consider the application. Iowa Board contends that 
simultaneous filing deprives States of their authority and conflicts 
with the purpose of the law. Senator Wright and NARUC note that 
allowing the pre-filing process to begin at such an early stage 
prevents the Commission from fully considering the information brought 
forth during the State siting process.
    19. The Commission appreciates the concerns of the States regarding 
the potential for overlap in State and Commission siting processes. 
However, the language of FPA section 216 provides for this potential 
overlap by allowing the Commission to issue a construction permit one 
year after the State siting process has begun and requiring an 
expeditious pre-application mechanism for all permit decisions under 
Federal law. Thus, the Commission pre-filing process can occur at the 
same time as parallel State proceedings.\13\ To ensure that needed 
infrastructure is built, Congress therefore adopted a statutory scheme 
that permits parallel proceedings.
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    \13\ The Commission's pre-filing process is discussed in section 
II.D. of this Final Rule.
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    20. While we believe the statute clearly permits parallel 
Commission-State processes, after taking into account the comments of 
State agencies and other stakeholders, we do not adopt the approach 
proposed in the NOPR. Rather, we adopt an approach that is more fully 
respectful of State jurisdiction.
    21. Although some overlap in State and Federal proceedings is 
inevitable, as was contemplated by FPA section 216, we believe that 
States which have authority to approve the siting of facilities should 
have one full year to consider a siting application without there being 
any overlapping Commission process. Therefore, we find that, in cases 
where our jurisdiction rests on FPA section 216(b)(1)(C),\14\ the pre-
filing process should not commence until one year after the relevant 
State applications have been filed. This will give the States one full 
year to process an application without any intervening Federal 
proceedings, including both the pre-filing and application processes. 
Once that year is complete, an applicant may seek to commence our pre-
filing process. Thereafter, once the pre-filing process is complete, 
the applicant may submit its application for a construction permit. We 
believe this approach most adequately addresses State concerns. If we 
determine in the future, however, that the lack of a Commission pre-
filing process prior to the end of the one year is delaying projects or 
otherwise not in the public interest, we will reconsider this issue.
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    \14\ In all other instances (i.e., where the state does not have 
jurisdiction to act or otherwise to consider interstate benefits, or 
the applicant does not qualify to apply for a permit with the State 
because it does not serve end use customers in the State), the pre-
filing process may be commenced at any time.
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    22. The States also express concern that the one-year time period 
can be abused. For example, an applicant might not provide complete 
information to the States in the hopes of frustrating their ability to 
act within one year and, hence, invoking the Commission's jurisdiction. 
The Commission believes such instances should be rare. We also

[[Page 69444]]

wish to make clear that we will not countenance such behavior. The 
Commission expects all potential applicants under FPA section 216 to 
act in good faith as it relates to State jurisdiction. Although the 
Commission may exercise jurisdiction in all instances where a State has 
withheld approval for more than one year, the Commission, in 
determining whether to do so, will weigh heavily clear evidence that an 
applicant has abused the State process.
    23. Under the approach adopted herein, once the one-year time 
period has elapsed the applicant may commence pre-filing. At the pre-
filing consultation required under Sec.  50.5(b) of the Commission's 
regulations, the applicant will need to tell Commission staff the date 
that it filed its application and the status of that application. As 
part of the pre-filing consultation, the Director of the Office of 
Energy Projects (OEP) will review the applicant's progress at the State 
proceeding. After the initial consultation process, if the Director of 
OEP determines that there is sufficient reason to commence pre-filing, 
a notice will be issued under Sec.  50.5(d) of the regulations. To the 
extent the State proceeding is still ongoing, the Commission will host 
a scoping meeting or technical conference to work with the applicant 
and the State agencies to discuss the need to coordinate, among other 
things, simultaneous environmental reviews. We believe that such 
coordination is appropriate because, in some instances, the State may 
be able to complete its action while our pre-filing process is ongoing, 
possibly allowing us to terminate any proceedings under FPA section 
216.
b. Withholding/Conditioning Approval
    24. Numerous commenters request that the Commission define the 
criteria it would use to determine that a State has withheld approval 
or conditioned its approval so as to render a project not economically 
feasible, triggering Commission jurisdiction.\15\ The Western Energy 
Board and California PUC maintain that a State should not be deemed to 
have withheld or unreasonably conditioned approval if it fails to act 
within one year because a project has not received Federal agency 
approvals or because of delays related to ``another provision of 
Federal law.'' California PUC points out that FPA Sec.  216(h)(4)(B) 
allows the Commission to extend its process beyond a year for those 
reasons.
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    \15\ Department of Interior, Iowa Utility Board, Massachusetts 
Energy Board, National Parks, National Regulatory Commissioners, 
Pennsylvania PUC, PJM, Washington Council, Wisconsin PSC, Western 
Energy Board.
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    25. The Iowa Board and Senator Wright state that the Commission 
should clarify that a State's timely and lawful denial of a 
transmission project should not give rise to Commission jurisdiction. 
The Iowa Board also contends that any other conclusion would allow an 
applicant to sidestep an adverse State ruling by subsequently 
requesting Federal jurisdiction. The Wisconsin PSC asks that the 
Commission clarify that State denial for failure to meet proper State 
requirements does not trigger the withheld approval provision. It 
claims that this would be a situation where a State agency acted 
properly and is not guilty of regulatory failure. Communities state 
that the Commission should not have jurisdiction where the State denies 
siting approval for valid reasons under State law, such as the 
protection of environmental resources, the health and safety of its 
citizens, or if better alternatives are identified through the process.
    26. FPA section 216(b)(1)(C) provides jurisdiction to the 
Commission whenever a State has ``withheld approval'' for more than one 
year. The statute does not explicitly define the full range of State 
actions that are deemed to be withholding approval. Nonetheless, to 
promote regulatory certainty, we believe it is our responsibility to 
interpret the statutory language in this proceeding and to give all 
parties notice of such interpretation. To this end, we believe that a 
reasonable interpretation of the language in the context of the 
legislation supports a finding that withholding approval includes 
denial of an application.
    27. Support for this interpretation is found in comparing the 
language added by EPAct 2005 as new FPA section 216(b)(1)(C)(i) to that 
of new FPA section 203(a)(5), also added by EPAct 2005. There, in 
requiring that the Commission grant or deny applications for approval 
of certain merger transactions within 180 days after the application is 
filed, the statute specifies the consequences ``[i]f the Commission 
does not act.'' The Commission has an obligation to construe a statute 
in such a manner as to give every word some operative effect.\16\ 
Interpreting the phrase ``withhold approval'' to mean ``does not act'' 
fails to recognize Congress' use of different words to express its 
intent.
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    \16\ Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 
157, 167 (2004).
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    28. Further support for this interpretation can be found in the 
fact that in addition to giving the Commission jurisdiction to site 
transmission facilities whenever a State has ``withheld approval'' for 
more than a year, FPA section 216(b)(1)(C) also gives the Commission 
jurisdiction to act in instances where a State has approved 
construction, but ``conditioned its approval'' in such a manner that 
the proposed construction or modification is not economically feasible. 
Since Congress has provided the Commission with the authority to 
intervene in circumstances where a State has issued an authorization 
which will essentially prevent a project from going forward, it would 
not be reasonable to interpret the statute in such a manner that would 
leave the Commission without authority to intervene in instances where 
a State has expressly denied an application.
    29. Moreover, legislative history lends support to this 
interpretation of the statute. Congress devoted substantial time to 
consideration of energy legislation in the years immediately prior to 
the enactment of EPAct 2005. It is noteworthy that transmission siting 
language first appeared in legislation considered in the House of 
Representatives in 2003. That measure (H.R. 6) allowed the Commission 
to exercise jurisdiction where a State entity with transmission siting 
authority ``has withheld approval, conditioned its approval in such a 
manner that the proposed construction or modification will not 
significantly reduce transmission congestion in interstate commerce and 
is otherwise not economically feasible, or delayed final approval for 
more than one year after the filing of an application seeking approval 
* * *.'' \17\ In addition, the report language accompanying the above 
legislative text states, ``The section provides that for such lines, 
persons may obtain a permit from FERC and exercise eminent domain if, 
after one year, a State is unable or refuses to site the line.'' \18\ 
The fact that this precursor to the transmission siting provision of 
EPAct 2005 distinguished ``withholding approval'' from ``delaying final 
approval for more than one year'' and was interpreted to include a 
State ``refusing to site a line'' supports the conclusion that 
``withholding approval'' was intended to mean something beyond a 
failure to act.
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    \17\ H.R. 6, 108th Cong. Sec.  16012 (2003).
    \18\ H.R. Rep No. 108-65 (April 6, 2003) (emphasis added).
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    30. Finally, Section 216(b)(1)(C)(i) allows the Commission to 
exercise jurisdiction where a State entity with siting authority has 
``withheld approval for more than 1 year after the filing of

[[Page 69445]]

an application seeking approval pursuant to applicable law * * *.'' If 
an applicant seeks State siting approval pursuant to applicable law, 
and the State does not grant the application within one year, the 
approval is withheld, regardless of whether the State takes a specific 
action denying it. Indeed, the term ``withhold'' in this context means 
to refrain from granting approval, and, conversely, the term ``deny'' 
is synonymous with ``withhold.'' Webster's Third New International 
dictionary defines ``withhold'' as ``* * * to desist or refrain from 
granting, giving, or allowing * * *.'' The same dictionary defines 
``deny'' as `` * * * to refuse to grant: WITHHOLD'' [caps in original]. 
``Denial,'' similarly, is defined as ``refusal to grant * * *: 
rejection of something requested.'' Furthermore, Roget's International 
Thesaurus 4th Ed., Section 776 (``Refusal'') at paragraph 776.4 lists 
``deny, withhold, hold back * * *'' as synonyms. Thus, there is no 
textual or lexical basis for saying that a formal denial does not 
entail refraining to grant or allow (i.e. to withhold). To say that an 
official denial does not count as a withholding is to say that ``to 
deny'' means something other than ``to refrain from granting,'' which 
would not be a reasonable interpretation.
    31. Therefore, the Commission finds that when a State fails to act 
or rejects an application, it has withheld approval and the proposed 
facility would be subject to the Commission's jurisdiction. However, 
the fact that we possess jurisdiction does not mean that it will be 
exercised in all cases. Rather, we retain the discretion, in 
appropriate circumstances, to allow State processes to be completed 
beyond the one-year period provided in the statute. Indeed, under the 
approach described above, the States will, in many cases, have more 
than two years to complete their action, and thereby avoid issuance of 
a construction permit by this Commission, because our pre-filing and 
construction permit processes typically take more than one year to 
complete (which is in addition to the one year provided to State 
authorities).
    32. We also clarify that mere consideration of an application by 
the Commission does not equate to a jurisdictional determination or 
Commission approval of the proposed project. Once an application is 
filed for consideration by the Commission, anyone who questions the 
Commission's jurisdiction over the proposed project, the timing of the 
exercise of that jurisdiction, or the merits of the proposal can raise 
those matters in its intervention or protest. The Commission will make 
a jurisdictional determination and address comments and protests in a 
subsequent order issued on the merits of the proposed project.
    33. Allegheny requests that the Commission address whether the 
following would constitute withholding approval: (1) A State cannot 
make a decision in one year due to State statutes or rules; (2) the 
State has declined to establish a procedural schedule for reaching a 
decision within a year; (3) a State commission, after an elapse of one 
year, has not acted on an application; and (4) approval is conditioned 
in an unacceptable manner, but does not meet the significantly reduce 
transmission congestion or not economically feasible test. Wilderness 
states that the Commission should adopt detailed standards defining 
what constitutes an economically infeasible project or restrictions 
that prevent a proposed project from significantly reducing congestion. 
Communities argue that Commission jurisdiction should not be triggered 
simply because mitigation measures might increase the costs of the 
project. DOI also encourages the Commission to look closely at the 
reason that certain conditions were imposed on a project.
    34. The Commission believes that these issues cannot be resolved 
adequately on a generic basis in this rule. Rather, it is important to 
consider all relevant factors presented on a case-by-case basis. The 
Commission will, therefore, not limit its ability to review an 
application on a case-by-case basis by establishing specific criteria 
that it will consider in determining if its jurisdiction had properly 
been invoked under FPA section 216(b)(1).
c. Other Jurisdictional Issues
    35. PJM Interconnection (PJM) requests that the Commission address 
the Commission's jurisdiction over facilities that span multiple States 
where one State may have approved the facilities and another does not. 
While the Commission's jurisdiction may, in these circumstances, only 
attach to the portion of the facility that would qualify under FPA 
section 216(b)(1), under the National Environmental Policy Act of 1969 
(NEPA), the Commission would have to analyze the impact of the entire 
project. The Commission may, however, adopt State analyses where 
possible. Additionally, to make its determination under FPA sections 
216(b)(2) through (6) the Commission would have to review the operation 
of the facility as a whole.
    36. PHI Companies request that the Commission clarify that where a 
State does not have the authority to grant eminent domain rights for 
transmission facilities, that constitutes the State not having 
authority to approve the siting of facilities, thus giving a project 
sponsor immediate access to the Commission's jurisdiction. While State 
law may not authorize the taking of property by eminent domain, if it 
still has laws that address the siting of electric transmission 
facilities, it appears that the Commission's jurisdiction will not 
attach unless the State fails to act or denies an application as 
required by FPA section 216(b)(1)(C). We will, however, consider such 
issues if, and when, they arise.
2. Other Findings Under 216(b)(2) Through (6)
    37. Under FPA sections 216(b)(2) through (6), the Commission must 
find that the proposed facility: (1) Will be used for the transmission 
of electric energy in interstate commerce; (2) is consistent with the 
public interest; (3) will significantly reduce transmission congestion 
in interstate commerce and protect or benefit consumers; (4) is 
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.
    38. NARUC asserts that the final rule needs to state more clearly 
how the Commission will implement all five of the above criteria. 
Pacific Gas and Electric Company (PG&E) requests that the Commission 
clarify how it intends to measure and analyze sufficient showings 
related to consistency with the public interest and national policy. 
DOI and Laura and John Reinhardt (Reinhardts) request that the 
Commission define the criteria necessary to establish a basis for the 
public interest determination. Massachusetts Energy Board states the 
Commission should define ``consistent with the public interest'' to 
include that there is no superior approach to the identified 
transmission project; there is no superior alternative to the proposed 
route; and all feasible mitigation of environmental impacts and any 
adverse reliability impacts will be undertaken.
    39. Wisconsin PSC states the Commission should examine a variety of 
factors, including cost-effectiveness, safety, engineering, project 
alternatives, individual hardships, reliability, competitive impacts, 
and environmental impact to judge whether a project is in the public 
interest. PJM believes the Commission should specifically look at 
adding a reliability requirement and a market efficiency analysis. 
NARUC

[[Page 69446]]

requests that the Commission consider the impact of the project on host 
States and any possible mitigation, and also require that harmful 
financial impacts of the project are mitigated through an applicable 
cost allocation methodology within the Commission's jurisdiction.
    40. PSEG Companies contend that the Commission should define the 
term public interest to consider the energy and environmental policies 
of the States where the transmitted energy will provide power. It 
states that ``significant'' should be defined as it applies to the 
reduction of congestion and that ``sound national energy policy'' 
should be clarified to consider that national security concerns will be 
taken into consideration. Finally, PSEG Companies state that the 
criteria for approval should be on a cost-benefit basis and an 
applicant should specify whether the project is being built for 
reliability or for economic reasons because that could lead to a 
different evaluation. Wilderness asserts that the Commission's public 
interest determination should consider the benefits of electric 
transmission, the project's environmental impacts, and alternatives 
with less environmental impacts. Progress Energy (Progress) cautions 
the Commission to be mindful that a policy of maximum use of existing 
towers and structures should be conditioned upon maintaining or 
improving the reliability of the transmission system.
    41. While commenters have raised a number of valid public interest 
considerations, the Commission cannot adopt an exclusive list of 
factors or construct a bright-line test to determine whether a project 
meets all the statutory criteria. It is difficult to construct helpful 
bright line standards or tests for this area. Bright line tests are 
unlikely to be flexible enough to resolve specific cases and to allow 
the Commission to take into account the different interests that must 
be considered. In reviewing a proposed project, the Commission will 
consider all relevant factors presented on a case-by-case basis and 
balance the public benefits against the potential adverse consequences. 
The Commission will conduct an independent environmental analysis of 
the project and determine if there is no significant impact as required 
by NEPA. It will look at alternatives, including, as appropriate, 
alternatives other than transmission lines, and consider whether the 
proposed facilities would maximize the use of existing transmission 
facilities. It will review the alternatives for their respective 
impacts on the environment and will determine mitigation measures to 
lessen the adverse impacts. The Commission will review the proposed 
project and determine if it reduces the transmission congestion 
identified in DOE's study and if it will protect or benefit consumers. 
It will investigate and determine the impact the proposed facility will 
have on the existing transmission grid and the reliability of the 
system.
    42. The Commission will also consider the adverse effects the 
proposed facilities will have on landowners and local communities. The 
Commission will evaluate the entire record of the proceeding, and after 
due consideration of the issues raised, determine if the proposed 
project is consistent with Congress' goals and objectives in enacting 
FPA section 216, while avoiding unnecessary disruptions to the 
environment and the unneeded exercise of eminent domain. The 
Commission's review of a proposed project will be a flexible balancing 
process during which it will weigh the factors presented in a 
particular application. It will impose appropriate conditions necessary 
to avoid adverse economic, competitive, environmental or other effects 
on the relevant interests from the construction of a new project, and 
will approve the project only where the public benefits to be achieved 
from the project outweigh the adverse effects.
    43. PG&E states the Commission should rebuttably presume a need for 
a project subject to the independent oversight of an approved 
independent system operator (ISO) or regional transmission organization 
(RTO) without a direct economic interest in the application process. It 
contends that this will maximize efficiency as participants must 
already make showings of local or regional need to gain approval from 
an ISO or RTO. PSEG Companies encourages the Commission to incorporate 
the results of the RTO process into its proceeding. APPA asserts that 
if a project results from an open and collaborative regional planning 
process designed to meet the transmission needs of load-serving 
entities (LSE) within the national interest electric transmission 
corridors, or a consortium with broad LSE ownership/participation then 
there should be a presumption of public interest. Similarly, NRECA 
contends that the Commission cannot reasonably make the FPA section 
216(b)(2) through (6) findings unless the proposed expansion or 
modification arose from a truly open and inclusive joint transmission 
planning process. It requests that the Commission require an applicant 
to complete a joint planning process before beginning the pre-filing 
process.
    44. The Commission agrees that the determinations of an independent 
entity, such as an RTO, should be given due weight in our assessment of 
whether a particular facility is needed to protect or benefit 
customers. We will, therefore, consider any such independent 
determinations as a factor, along with all other relevant factors, in 
determining whether the statutory criteria have been met.

C. Project Participation

    45. Section 216(d) of the FPA requires that the Commission afford 
each State in which the transmission facility covered by the permit 
application is or will be located, each affected Federal agency and 
Indian tribe, private property owners, and other interested persons, a 
reasonable opportunity to present their views and recommendations with 
respect to the need for and impact of a facility covered by the permit 
application. Additionally, under FPA section 216(h)(3) and its 
delegated authority, the Commission needs to coordinate the Federal 
authorization and review process with any Federal agencies, Indian 
tribes, multistate entities, and State agencies that are responsible 
for conducting separate permitting and environmental reviews of the 
facilities.
    46. Under the Commission's review process, any interested entity or 
individual will have multiple opportunities to participate and express 
its views on the proposed project.\19\ Under Sec.  50.4 of the 
Commission's regulations, the applicant is required to develop a 
Project Participation Plan (Participation Plan) to facilitate 
participation from all stakeholders during the Commission's 
proceedings. The Participation Plan will be used to provide accurate 
and timely information, including the environmental impacts, as well as 
the national and local benefits, of the proposed project, to all 
stakeholders. The Commission expects that the applicant will conduct 
various outreach activities to solicit comments on its proposal before 
commencing the Commission's review process.
---------------------------------------------------------------------------

    \19\ The Commission considers any interested entity or 
individual to be included in its definition of stakeholder in Sec.  
50.1 of the Commission's regulations.
---------------------------------------------------------------------------

    47. In addition to the applicant's outreach activities, Commission 
staff will conduct its pre-filing process. As part of this process, 
Commission staff will start its scoping and environmental review of the 
proposed project as

[[Page 69447]]

required by NEPA. As part of this review, it will seek comments and 
recommendations from interested stakeholders. Commission staff will use 
those comments during its preliminary review of the proposed project to 
formulate the issues raised by the project and to assist the applicant 
in compiling the information necessary for the Commission staff to 
draft the environmental document and for the Commission to address 
those issues during the application process.
    48. Once the application is filed, it will be noticed and 
interested stakeholders will be able to file to intervene and/or file 
protests and/or comments concerning the applicant's proposal. 
Additionally, during the application proceeding, the Commission will 
issue a draft environmental document.\20\ The environmental document 
will also be subject to a comment period where any stakeholder may file 
comments concerning the findings made in that document. Finally, the 
Commission will issue a final environmental document and an order 
addressing the issues raised in the proceeding.
---------------------------------------------------------------------------

    \20\ The Commission will issue an environmental assessment under 
Sec.  380.5 or an environmental impact statement under Sec.  380.6 
of the Commission's regulations depending upon the level of NEPA 
review that will be required for the proposed project.
---------------------------------------------------------------------------

    49. The Commission received numerous comments on its proposal for 
public participation in its siting process. Many commenters requested 
clarification on how the Commission envisioned its notification 
requirements would be implemented, who would be notified about the 
project, and how an interested stakeholder would be able to access 
information and participate in the Commission's proceedings. Some 
commenters were concerned that the Commission's definition of affected 
landowners was too limited. Others thought it was too broad. Some 
commenters were afraid that their group may be excluded from the 
definition of stakeholder. Others thought a stakeholder's right to 
participate should be restricted.
1. Landowners
    50. Under Sec.  50.1, an affected landowner is an owner of property 
interests, as noted in the most recent tax notice, whose property is: 
(1) Directly affected, crossed or used, by the proposed project; or (2) 
abuts either side of an existing right-of-way or proposed facility site 
or right-of-way, or contains a residence within 50 feet of a proposed 
construction work area. In addition, Sec.  50.4(c) requires that the 
applicant notify any landowner with a residence within a quarter mile 
from the edge of the construction right-of-way.
    51. Communities contend that the definition of affected landowner 
is too limited and must be broadened to provide a fair opportunity for 
intervention and a comprehensive environmental review. It states that 
it should include all landowners directly affected by the proposed 
facility so that all such individuals are allowed to participate fully 
in the proceeding. DOI requests that the definition of affected 
landowners include land management agencies. Similarly, National Parks 
Conservation Association (Parks Association) requests that the 
definition of affected landowner be reworded so that land managing 
agencies with fee simple lands and those lands in which agencies own 
scenic easements, are notified during the appropriate times.\21\ They 
contend that if the Commission does not include Federal agencies as 
``affected landowners,'' it needs to develop a notification criterion 
for Federal agencies that manage public lands. DOI also encourages the 
Commission to add a procedure for notifying stakeholders who would be 
within the viewshed, but not necessarily abutting, the proposal project 
to help notify other Federal governments and agencies involved in the 
project.
---------------------------------------------------------------------------

    \21\ Lackawaxen River Conservancy adopts the comment of the 
Parks Association.
---------------------------------------------------------------------------

    52. Parks Association requests that the reference to ``directly 
affected'' landowners in Sec.  50.1(a)(1) needs to be defined since an 
electricity corridor might not cross or use parklands, but could still 
``directly'' affect the scenic and historic resources of a park. It 
also states that a specific definition of ``used'' in Sec.  50.1 should 
be added and include landowners whose property is exposed to noise and 
visual impacts. Moreover, Park Associations believes the quarter mile 
distance requirement is inadequate to address the possible adverse 
impacts on lands discussed in the land use, recreation, and aesthetics 
resource report. Massachusetts Energy Board requests that the 
Commission define affected landowner using a distance greater than 50 
feet from overhead transmission lines or use a definition based on a 
distance from the edge of the cleared or permanent right-of-way.\22\
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    \22\ Additionally, Massachusetts Siting Board also states that 
the word ``and'' should be replaced with ``or'' after the phrase 
``temporary workspace''. We agree that the word ``and'' between the 
two requirements should be replaced with ``or'' and have changed the 
regulation accordingly.
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    53. The definition of affected landowner is meant to encompass 
owners of property either directly within or adjacent to the proposed 
right-of-way and construction area. If a land management agency manages 
land on or adjacent to the proposed right-of-way and construction area, 
it will be considered an affected landowner. While the definition only 
encompasses land on or abutting a proposed right-of-way, the applicant 
must also notify all landowners with a residence within a quarter mile 
of the edge of the construction right-of-way under the notification 
requirements of Sec.  50.4(c)(1). The Commission believes that between 
the definition of affected landowner and the expanded quarter mile 
notification requirement, a sufficient group of individuals will be 
notified of the proposed project.
    54. Stakeholders do not need to be an affected landowner or live in 
a residence within a quarter mile of the proposed site to participate 
in the Commission's proceedings. Under the definition of stakeholder in 
Sec.  50.1, any interested entity or person may file comments as a 
stakeholder and participate in the Commission's process. Even if a 
specific land management agency is not included in the definition of 
affected landowner, it can still participate as a stakeholder. Resource 
Report 8, in Sec.  380.16(j), requires that the applicant identify the 
existing land use in the vicinity of the proposed facility, including 
areas designated for studies under Federal law under Sec.  
380.16(j)(7). If, for some reason, a specific land management agency is 
not identified in the early planning stages of a project, as discussed 
below, during the pre-filing process Commission staff will work with 
the applicant to determine if any potential stakeholder has been missed 
and if they have, to make sure that they have had notice of the 
proposed project and an opportunity to participate.
    55. Southern states that owners with property interests that abut 
an existing right-of-way should not be included in the definition of 
affected landowners unless it becomes necessary to secure easements or 
other rights from such owners. It argues that the definition should be 
limited to owners of property interests directly affected by the 
project and not to property interests that abut existing rights-of-way. 
Allegheny states that the Commission should only require notification 
of landowners with residence within 50 feet of a construction work 
site, as required under the affected landowner definition under the 
Commission's natural gas pipeline regulations in Sec.  157.6(d)(2)(ii) 
and not expand the landowner group to residences within a quarter mile 
of the right-of-way as required under Sec.  50.4(c).

[[Page 69448]]

    56. While property owners with land that abuts the proposed right-
of-way or with a residence within 50 feet of the proposed construction 
work area may not be required to negotiate easements once the ultimate 
route is determined, one of the purposes of the pre-filing process is 
to review the applicant's proposed route and explore route alternatives 
and variations based on the input the Commission receives from property 
owners and other interested entities and individuals. It is important 
that potentially affected property owners are notified early on in this 
review process to provide the Commission with their views and 
recommendations as required under FPA section 216(d). Additionally, 
once construction commences, abutting property owners may be impacted 
by the construction activities conducted in such close proximity to 
their property and should be made aware of these activities.
    57. The Commission also believes it is appropriate to notify all 
landowners within a quarter mile of the proposed right-of-way. Unlike 
gas pipelines which are generally buried underground, electric 
transmission lines can be seen from greater distances. Therefore, more 
surrounding landowners should be directly notified by the applicant. 
The fact that these landowners are not designated as affected 
landowners does not diminish their right to be notified and participate 
in the Commission's proceedings. Additionally, the Commission will also 
notify these individuals of its intent to conduct its environmental 
review and will seek comments from them during that review.
    58. PG&E states that the Commission should defer to States' 
distance requirements for notification of affected landowners. It 
requests that where there is no corresponding State requirement, the 
Commission should designate the appropriate minimum distance between 
the proposed project and a landowner's property that would trigger the 
direct notification requirement. National Grid recommends that the 
Commission only require notification within 300 feet of the 
construction right-of-way.
    59. The Commission does not believe it is appropriate to defer to 
States' distance requirements for notification of affected landowners 
or that notification within 300 feet is sufficient to reach the broad 
group of participants that the Commission seeks to include in these 
proceedings. Moreover, having different requirements in different 
States may result in inconsistent requirements along the route of a 
multistate project.
2. Stakeholders and Notification
    60. Section Sec.  50.1 defines a stakeholder as a Federal, State, 
or multistate, Tribal or local agency, any affected non-governmental 
organization, or other interested person. In other words, a stakeholder 
includes agencies and individuals contemplated under FPA section 216(d) 
and the permitting agencies contemplated under FPA section 
216(h)(3).\23\ Under Sec.  50.4(c) the applicant is required to notify 
all known stakeholders, including affected landowners, of the proposed 
new facilities or modification of existing facilities within 14 days 
after the Director of OEP or his designee notifies the applicant of the 
commencement of the pre-filing process. Additionally, under proposed 
Sec.  50.4(c)(1)(ii), the applicant must publish the notice of the pre-
filing request and application filing twice in a daily or weekly 
newspaper of general circulation in each county in which the facilities 
will be located.
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    \23\ Section Sec.  50.1 defines a permitting entity as any 
entity, including Federal, State, Tribal, or multistate, or local 
agency that is responsible for conducting reviews for any Federal 
authorization that will be required to construct an electric 
transmission facility in a national interest electric transmission 
corridor.
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    61. Communities states that while counties are technically included 
in the definition of a person under Sec.  385.102(d) of the 
Commission's regulations they should, nevertheless, be prominently 
listed as stakeholders for the purposes of these regulations. Imperial 
states that as a political subdivision, it should be accorded 
stakeholder status. The Commission considers any interested entity or 
individual to be included in its definition of stakeholder in Sec.  
50.1 of the regulations. Thus, if a particular entity, such as a non-
public utility or a county, is not specifically listed in the 
definition of stakeholder, it still may comment and participate in the 
Commission's proceedings.
    62. SoCal Edison, PG&E, and NRECA request that the applicant 
provide electric utilities and affected transmission owners and 
operators with notice and opportunities to participate in the process 
if they would be connected to an applicant's proposed transmission 
facility, provide service in the service area, or would be impacted, 
either by environmental, reliability or structural impact, as a result 
of the project. Western Energy Board requests that the applicant should 
also notify individuals who have expressed an interest in the State 
proceeding. It also requests that the Commission include a requirement 
for the applicant to periodically update the notification list as 
properties change hands.
    63. The Commission agrees that electric utilities and transmission 
owners and operators that are connected to the applicant's proposed 
transmission facilities should be notified of the proposed project. We 
also believe it is appropriate for the applicant to notify individuals 
that have expressed an interest in the State proceeding, if a list of 
those individuals is available to the applicant. Accordingly, we will 
expand the notification requirement in Sec.  50.4(c)(1) to include 
electric utilities and transmission owners and operators that are or 
may be connected to the applicant's proposed transmission facilities 
and any known individuals that have expressed an interest in the State 
proceeding.
    64. Section 50.4(c)(3) requires that the applicant supply a 
stakeholder notice of the proposed project if a stakeholder is 
identified subsequent to the initial notice of the project. If a 
property changes hands during the pre-filing and application 
proceeding, the applicant is required to notify the new owners once 
they are identified. We will not, however, require that the applicant 
actively monitor land sales along the project route to determine if a 
piece of property happens to be sold during the Commission's 
proceedings.
    65. White Mountain Apache Tribe (White Mountain) recommends that 
the Commission require applicants to publish the notice of a pre-filing 
request in tribal newspapers when any part of the project will affect 
tribal lands. We agree and will add tribal newspapers to the 
notification requirement of Sec.  50.4(c)(1)(ii).
    66. DOI recommends that the notices published in the newspapers 
include a map of sufficient detail to allow the reader an immediate 
understanding of the general location or the proposed construction 
right-of-way. Section 50.4(c)(2)(i)(C) requires the filing of a general 
location map. The notice also provides information concerning how an 
individual can seek additional information if the information in the 
newspaper is not sufficient.
    67. Affiliated Tribes of Northwest Indians (Affiliated) and White 
Mountain state that the Commission should assure that all Tribal 
entities whose traditional lands or cultural places are crossed by a 
potential project should be notified. National Grid states that the 
Commission should clarify what Tribal governments involved in the 
project means so the proper ones can be notified. Section 50.4(c)(1) 
requires that the applicant notify tribal governments. We believe this 
is sufficient to address

[[Page 69449]]

Affiliated's and White Mountain's concerns. We also do not believe any 
clarification of Tribal government is necessary. That information is 
readily available from the Bureau of Indian Affairs or the State or 
Tribal Historic Preservation Office. Moreover, as discussed below, part 
of the pre-filing process is for the Commission staff to work with the 
applicant to determine if any potential stakeholder has been missed and 
if they have, to make sure that they have had notice of the proposed 
project and an opportunity to participate.
    68. EEI requests that the Commission limit the term stakeholder to 
an affected agency or person.\24\ It contends that interested person 
could include a broad range of parties that are not impacted by the 
proposed project. Southern states that interested person should be 
reasonably and precisely drawn to clearly specify the scope of their 
participation, including actions these participants may take with 
respect to any project or application. National Grid states that the 
Commission should require stakeholders to provide notice to Commission 
staff and the applicant of the stakeholder's interest and intended 
involvement in the pre-filing process.
---------------------------------------------------------------------------

    \24\ PHI Companies supports EEI's comments.
---------------------------------------------------------------------------

    69. The Commission intends to seek comments from a broad group of 
participants during the pre-filing process. Once the application is 
filed the Commission will still entertain comments from interested 
entities and individuals. If anyone wishes to intervene in the 
application proceeding and become a party, however, they will need to 
file a motion to intervene in accordance with Sec.  385.214 of the 
Commission's regulations. Under Sec.  385.214(b)(2) the motion to 
intervene must show that the movant has an interest that is directly 
affected by the outcome of the proceeding.
    70. Old Dominion Electric Cooperative (Old Dominion) is concerned 
that stakeholders will not receive sufficient notice of the 
commencement of the pre-filing proceeding because the Director of OEP 
will only notify the applicant under Sec.  50.5(d). Old Dominion 
suggests, among other things, that the Director's notice be published 
in the Federal Register and be made available on the Commission's 
website. As discussed above, the Commission has modified the group of 
stakeholders listed in Sec.  50.5(e)(3) that are required to receive 
notification of the Director of OEP's notice commencing the pre-
application process from the applicant. Additionally, the notice will 
be available on the Commission's Web site. We find that is sufficient 
notification of the commencement of the pre-filing process.
    71. Reinhardts request that the Commission require that the 
applicant file a formal affidavit with: A copy of the notice sent to 
landowners; a copy of the newspaper notices and list of publications 
where they appeared; and the names and addresses of all notified 
entities so that third parties are able to verify that the applicant 
has complied with the notice requirements. Western Energy Board states 
that the applicant should be held to a higher standard than ``good 
faith effort'' for the notification of property owners. Affiliated 
contends that the notice requirements are insufficient because there 
are no penalties to assure that all stakeholders are identified at the 
beginning of the project. American Transmission asserts that the 
notification should be made on a good faith effort basis and 
stakeholders will have a reasonable opportunity to receive notice. 
NRECA states that the notification requirement should be deemed 
deficient if the applicant learns of additional stakeholders after the 
14-day period.
    72. Pre-filing is an information-gathering process. During this 
process, Commission staff will work with the applicant to make sure 
that all interested stakeholders have been made aware of the proposed 
project and have had an opportunity for their views and recommendations 
to be considered. Thus, part of the pre-filing process is for the 
Commission staff to review who the applicant has notified and to work 
with the applicant to determine if a potential stakeholder has been 
missed and if they have, to make sure that they received notice of the 
proposed project and an opportunity to participate. The Commission has 
successfully relied on this process in its review of hydroelectric and 
natural gas projects.
3. Document Availability
    73. Under Sec.  50.4(b), an applicant is required to make copies of 
all of its filings readily available for all stakeholders to review at 
accessible central locations, either in paper or electronic format, and 
on the applicant's project Web site. Allegheny requests that the 
Commission add a provision comparable to those in the natural gas 
pipeline certificate regulations that reduce the applicant's service 
requirements if its materials include voluminous or difficult to 
reproduce material. The Commission agrees that if these materials are 
readily available at central locations and on the applicant's project 
Web site, it should not be required to serve these materials on all 
parties as required under Sec.  385.2010 of the Commission's 
regulations. Thus, we will add Sec.  50.4(b)(3) to the regulations to 
state:

    An applicant is not required to serve voluminous or difficult to 
reproduce material, such as copies of certain environmental 
information, to all parties, as long as such material is publicly 
available in an accessible central location in each county 
throughout the project area and on the applicant's project Web site.
4. Participation Process
    74. As stated, under the Commission's review process all interested 
stakeholders will have numerous opportunities to present their views 
and recommendations with respect to the need for and impact of a 
proposed facility. Those opportunities include participating during the 
applicant's outreach activities, during the Commission's NEPA process 
during both the pre-filing and application processes, and through the 
Commission's intervention and protest procedures during the application 
process. Numerous commenters raise concerns about their ability to 
participate in the pre-filing and application processes.
    75. Reinhardts state that the Participation Plan should include 
information of how interested persons may be notified of dates and 
times for public meetings or hearings on the proposed project. Star 
Group (Star) states that the Participation Plan should identify the 
means by which stakeholders will be given the opportunity to meet with 
the applicant to attempt to understand and resolve key issues. American 
Transmission believes the Commission should give more guidance 
concerning what constitutes a complete Participation Plan. Old Dominion 
requests that the Commission require the applicants provide a summary 
of stakeholder participation to date in the Participation Plan, 
including concerns expressed by stakeholders, and efforts by the 
applicant to address those concerns.
    76. The Commission expects that the applicant will have conducted 
outreach activities at the planning and/or State level prior to 
commencing the Commission's pre-filing process. The Participation Plan 
must detail all of the outreach activities the applicant has done to 
date and summarize the input it received during that outreach. It also 
must include a list and schedule of all pre-filing and application 
activities the applicant is planning, including, among other things, 
consultations, information gathering, and proposed location(s) and

[[Page 69450]]

date(s) for the meetings. The applicant must also describe how it 
intends to keep the stakeholders apprised of any updates to its 
Participation Plan, including, but not limited to, postings to its 
project Web site and how the stakeholder can reach the company's 
contact to seek additional information.
    77. Parks Association and DOI request that the Commission require 
applicants to release a pre-route proposal before the pre-filing 
process begins for a permit. One of the purposes of the pre-filing 
process is for Commission staff to work with the applicant and 
interested stakeholders to determine the ultimate route of the proposed 
project. Moreover, for siting proceedings that are initiated in a State 
proceeding, stakeholders will already have some idea of the approximate 
route from that proceeding. The Commission does not believe it is 
necessary to add yet another level of notification to an already 
potentially lengthy process.
    78. PSE&G and Allegheny request that the Commission establish a 
docketed, publicly-noticed proceeding for pre-filing or use a technical 
conference to assure that stakeholders will be afforded a formal 
opportunity to present their views. New Jersey Board of Public 
Utilities (New Jersey BPU) requests that the Commission provide for 
videoconferencing of the meetings. Old Dominion states that the 
Commission should not only fix the time by which interventions are due, 
but also provide a fixed time for interested parties to file comments 
or protests to applications. Communities, Old Dominion, and Star are 
concerned that the pre-filing process does not provide an opportunity 
to give any meaningful input to the Commission. Communities argue that 
without notice and comment during the pre-filing process or 
transparency in the Commission's decision-making process, intervenors 
and the public will be significantly handicapped in their efforts to 
meaningfully participate once the formal application process begins. 
They are also concerned that interested parties and the public will not 
have any intervention rights or any comment rights during the pre-
filing process.
    79. The Commission's pre-filing procedures offer numerous occasions 
for stakeholders to express their interests and make meaningful 
contributions. Once the Commission commences the pre-filing proceeding, 
it will assign a docket number to the project. All the applicant's pre-
filing materials will be posted under that docket number in the 
Commission's eLibrary and will be available through the Commission's 
Web site. All subsequent filings made in that docket by the applicant, 
any comments filed by stakeholders in that docket, and any issuances 
made by the Commission in that docket, including notices and requests 
for additional information will be posted on eLibrary under that docket 
number.\25\
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    \25\ Information concerning how to use the Commission's services 
can be found on the Commission's Web site at http://www.ferc.gov and 
will also be included in the notices the Commission issues 
concerning the proposed project.
---------------------------------------------------------------------------

    80. Once the Commission staff establishes that the applicant has 
filed sufficient preliminary information to proceed with pre-filing, 
the Commission will issue a notice of intent (NOI) to prepare an 
environmental document. The NOI will describe the project, list 
potential issues identified by the Commission staff,\26\ and explain 
the Commission's scoping and environmental review process. It will 
explain how to participate in the Commission's process by submitting 
written comments. The notice will set a date by which time the comments 
will be due. It will also list the scoping meetings the Commission 
staff will hold at various locations throughout the proposed project 
route to access the maximum amount of participation possible. The 
Commission will have a transcriber at its scoping meeting to create a 
record of the comments received at that meeting.
---------------------------------------------------------------------------

    \26\ The list of issues may be modified during the environmental 
review process based on the comments received during the Commission 
staff's analysis.
---------------------------------------------------------------------------

    81. Depending on the issues that arise during the course of pre-
filing, Commission staff may determine that it is necessary to hold 
various technical conferences or other meetings to acquire additional 
input and information concerning the proposed project. The Commission 
will issue notices of these meetings in the docket number assigned to 
the project. Additionally, the applicant will need to update its 
Participation Plan to reflect any additional outreach that may be 
conducted as part of the Commission's review process. If the Commission 
determines it is appropriate, it could arrange to provide for 
videoconferencing of certain meetings. However, because the Commission 
conducts various meetings along the route of the proposed project, 
videoconferencing should not be necessary. Additionally, transcripts of 
the meeting will be available under the assigned docket in eLibrary and 
the Commission's Web site.
    82. AEP is concerned that there is no limit on stakeholder input in 
the pre-filing process. It states that stakeholders can push for 
revisions and continue to ask questions, which continue to postpone a 
project. AEP recommends that the process should be modeled more like a 
rulemaking with time-limited input. EEI asserts that the applicant 
should not necessarily be obligated to communicate with parties that 
have not demonstrated that they will be impacted by the proposed 
project. Southern states that the obligation to entertain requests for 
information should be limited in scope and in terms of the participants 
that may request additional information or else it would lead to 
significant delays.
    83. During pre-filing, the Commission will solicit comments from 
stakeholders. Any notice issued by the Commission soliciting comments 
will include a deadline date for those comments. The Commission expects 
that the applicant will address stakeholder concerns in various ways. 
Under Sec.  50.4(a)(1), the applicant is required to have a point of 
contact within the company to answer general inquiries that may arise. 
The applicant can also establish a link on the project Web site that 
addresses frequently asked questions and refer the inquiry to that link 
or other areas on the Web site to address inquiries, as appropriate.
    84. Based on the comments received in response to the NOI and 
information gathered on visits to the site of the proposed project, 
Commission staff will work with the applicant to compile the 
information and conduct the studies necessary for the Commission staff 
to prepare a draft environmental document. Once the Director of OEP has 
determined that sufficient information has been gathered for the 
Commission to proceed with the final review of the applicant's proposed 
project, pre-filing will end and the applicant will file an 
application.
    85. Once the application is filed, it will be noticed and 
interested entities and individuals will be able to file to intervene 
and become a party to the proceeding under Subpart B of Part 385 of the 
Commission's regulations. Instructions on how to do this will be 
explained in the notice of the application and are available on the 
Commission's Web site.
    86. American Transmission requests that the Commission allow State, 
local, and regional planning and siting entities to participate in the 
proceeding as a matter of right. Communities state that local counties 
that will be impacted by the proposed facilities should have automatic 
rights to intervene and receive notices and information. NRECA contends 
that the Commission should coordinate closely with the Rural Utilities 
Service to avoid duplication

[[Page 69451]]

and the imposition of additional burdens on applicants.\27\
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    \27\ The Rural Utilities Service provides capital to upgrade, 
expand, maintain, and replace America's vast rural electric 
infrastructure. NRECA states that financing obtained through the 
Rural Utilities Service is subject to rigorous long-term planning 
obligations that are substantially more demanding than the resource 
adequacy requirements that apply to other LSEs.
---------------------------------------------------------------------------

    87. Under Sec.  385.214 of the Commission's regulations, any State 
commission, Advisory Council on Historical Preservation, the U.S. 
Departments of Agriculture, Commerce, and the Interior, any State fish 
and wildlife, water quality certification, or water rights agency, or 
Indian tribe with authorization to issue a water quality certification 
is a party to any proceeding upon filing a notice of intervention in 
that proceeding. The Commission sees no reason to expand this 
regulation. All other interested persons may seek intervention by 
filing a motion to intervene.
    88. DOI raises several issues pertaining to the timing of the draft 
environmental document under the NEPA. Specifically, it is concerned as 
to when other Federal agencies will get an opportunity to review the 
draft document. It encourages the Commission to include a timeframe for 
public review of the NEPA document along with clarification as to when 
the Commission will issue the NEPA document. After the application is 
filed, the Commission will issue a draft environmental document, on 
which interested stakeholders will be able to comment. All comments 
received will be addressed in the final environmental document which 
will be completed before the Commission issues an order on the merits 
of the application.
    89. When the Commission completes its review of the application, it 
will issue an order addressing the issues raised in the proceeding and 
issuing, or denying, a permit to construct the proposed facilities. 
Under FPA section 313(a) and Sec.  385.713 of the Commission's 
regulations, any party may file a request for rehearing. Requests for 
rehearing must include the information required under Sec.  385.719(c) 
of the Commission's regulations. The Commission will issue an order 
addressing the issues raised in the rehearing requests. If the 
Commission denies the rehearing requests, any party who intervened in 
the proceeding and is aggrieved by the Commission's order may file, 
under FPA section 313(b), an appeal in the United States Court of 
Appeals.

D. Pre-Filing

    90. 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 need for 
and impact of the facilities early on in the planning stages of the 
proposed facilities as required under FPA section 216(d). In addition 
to gathering stakeholder input, during this time Commission staff will 
work with the applicant to compile the information required for a 
complete application under Sec. Sec.  50.6 and 50.7.
    91. The filing requirements in Sec. Sec.  50.6 and 50.7 set forth 
the basic information that the Commission will need for a generic 
project. However, each project will have its own unique issues that 
will need to be considered on a case-by-case basis. For example, an 
electric transmission facility constructed through farmland will have a 
different impact than one that will go through a heavily populated 
area. During the pre-filing process, Commission staff will initiate its 
independent environmental analysis of the project as required by NEPA. 
It will conduct scoping meetings and site visits. Staff will use the 
information gathered through this process and from information acquired 
from stakeholder input to define the issues particular to a specific 
project. Based on these activities, Commission staff assists the 
applicant in compiling the information necessary for the Commission to 
address the specific concerns raised by the proposed project during the 
application process.
1. Initial Consultation Issues
    92. Section 50.5(b) requires that an applicant meet with the 
Director of OEP before filing its pre-filing materials. During the 
consultation process, Commission staff will review the applicant's 
proposed project description, including the status of the applicant's 
progress towards collecting the data needed to commence the pre-filing 
process, and any preliminary contacts the applicant has had with 
stakeholders, including its progress in DOE's pre-application process 
and in the State proceeding, if applicable.
    93. Commission staff will review the applicant's eligibility for 
Commission jurisdiction for a permit for the proposed facility, outline 
the pre-filing process, and provide guidance as to what further work is 
necessary to prepare the pre-filing request. Commission staff will also 
review the proposed project to determine if the applicant will be 
required to hire a third-party contractor to assist in preparing a NEPA 
document under the direction of the Commission staff.
    94. Virginia Electric requests that the Commission explain what 
will be reviewed by staff in the initial consultation and when such 
reviews will take place. American Transmission requests that the 
Commission define what constitutes a complete set of pre-filing 
information to assist in expediting the process.
    95. While any applicant may seek guidance on a potential project 
from Commission staff at any time, the Commission expects that the 
applicant will commence the initial consultation process for pre-filing 
when it believes that there is sufficient evidence that a proposed 
project will be subject to the Commission's jurisdiction and it has 
prepared the required pre-filing information. At the pre-filing 
consultation, Commission staff will review the applicant's specific 
project and the information the applicant has compiled to date and 
discuss how that information complies with the initial pre-filing 
filing requirements in Sec.  50.5(e) and the application filing 
requirements in Sec. Sec.  50.6 and 50.7. Commission staff will also 
review what work the applicant has done at the State level, the amount 
of community outreach the applicant has conducted, and the results of 
that outreach.
    96. While the potential differences between projects make it 
difficult for the Commission to specifically define what would 
constitute complete pre-filing information, Sec.  50.5(e) lists the 
minimum filing requirements that are needed for an applicant to 
commence the pre-filing process. If the Commission staff find that the 
applicant has sufficient information to comply with the pre-filing 
filing requirements in Sec.  50.5(e), the applicant will be allowed to 
commence pre-filing. If the applicant does not have sufficient 
information to meet the pre-filing filing requirements, Commission 
staff will work with the applicant to determine what additional 
information will be needed to proceed. If the applicant does not have 
the necessary information, it may take more than one pre-filing 
consultation before the applicant is prepared to commence pre-filing.
    97. EEI argues that rather than requiring applicants to develop and 
implement an extensive new pre-filing public Participation Plan, the 
Commission should simply require the applicant to provide appropriate 
notification to stakeholders that the venue for the siting approval 
process has moved from the State to the Federal level along with an 
explanation of how

[[Page 69452]]

they can become involved in the Commission's process as an intervenor 
or under NEPA. SDG&E recommends that an applicant should be able to 
bypass the pre-filing stage, if at the initial consultation with the 
Director of OEP it is determined that it has submitted sufficient 
information with OEP to support beginning to process the application, 
has submitted a Participation Plan, and has complied with the pre-
filing requirements of Sec.  50.5(e). PHI Companies similarly suggest 
the pre-filing process should be optional.
    98. Because pre-filing is a fact-finding process used by the 
Commission staff to commence and initiate its independent environmental 
analysis and to define specific issues raised by specific projects, it 
is not possible for an applicant to by-pass the process. However, the 
time it takes for an applicant to complete the pre-filing process could 
be significantly reduced depending on the amount of work the applicant 
had completed in compiling the necessary information prior to the pre-
filing process.
    99. PJM requests that the Commission staff commence its system 
analysis review of the proposed facilities during the pre-filing 
process. Commission staff primarily focuses on compiling the 
information for the subsequent environmental review during pre-filing. 
In cases where a project would be located in the geographic area 
covered by an RTO, we expect much of the information for the system 
analysis to be developed in consultation with the RTO during the pre-
filing phase. If necessary, however, Commission staff will work with 
the applicant during pre-filing to identify specific information that 
will be required for the Commission to conduct a system analysis during 
the application process.
2. Third-Party Contractors
    100. Under Sec.  50.5(c)(6) the applicant is required to propose at 
least three third-party NEPA contractors for the Commission to consider 
for the proposed project. Under Sec.  50.5(d)(1), the Director of OEP's 
pre-filing notice will designate the chosen third-party contractor at 
the beginning of the pre-filing process.
    101. Southern states that the applicant should be entitled to 
select any third-party NEPA contractor to use in its pre-filing and 
application process, insofar as the Director of OEP determines that a 
third-party contractor will be necessary. Similarly, National Grid 
states that an applicant should be permitted to express a preference 
for a particular contractor and the Commission's staff should generally 
defer to the applicant's choice because the applicant is financially 
responsible for the contractor's work. Los Angeles DWP is concerned 
that the requirement to finalize the contract with the third-party 
contractor may take 90 days or longer unless one of the four NEPA 
contractors selected who is currently under contract with the Los 
Angeles DWP. American Transmission requests that the Commission clarify 
why it requires that third party contracts be finalized in two weeks in 
all cases; instead it recommends that it should be 45 days. DOI 
requests clarification or a reference to the criteria that the 
Commission will use to determine if a third-party contractor must be 
hired.
    102. The Commission is required under NEPA to do an independent 
analysis of the environmental impacts of a proposed project. Depending 
on the amount of work involved, it often requires that the applicant 
hire a third-party contractor to assist the Commission in analyzing the 
proposed project. The third-party contractor, while paid for by the 
applicant, reports directly to Commission staff. Thus, the Director of 
OEP will designate the appropriate third-party contractor.\28\ While 
Sec.  50.5(e)(2) requires that the applicant finalize the contract with 
the selected third-party contractor within 14 days the Commission may 
waive that requirement rule for good cause. If the applicant cannot 
finalize the contract with the third-party contractor within two weeks, 
it can request a waiver of the requirement of Sec.  50.5(e)(2). We 
note, however, that preparation of an environmental document is a time 
and labor intensive process. The Commission has implemented the 14-day 
requirement as a way to expedite the process.
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    \28\ See 40 CFR 1506.5(c), requiring that a contractor used to 
prepare an environmental impact statement is to be chosen solely by 
the lead agency (or where appropriate, by a cooperating agency).
---------------------------------------------------------------------------

3. Subsequent Filing Requirements
    103. Section 50.5(e) lists the initial filing requirements and 
filing deadlines that are required for the Commission staff to commence 
the pre-filing process. Parks Associations is concerned that this 
language does not impose strict deadlines to protect the public 
interest. On the other hand, National Grid requests that the Commission 
permit reasonable extensions of time beyond the 60-day timeframe for 
submitting resource reports.
    104. The deadline requirements in the regulations are intended by 
the Commission to expedite the pre-filing process. Since part of the 
pre-filing process is to assist the applicant in compiling the 
information needed to file a complete application, the Commission does 
not expect that the preliminary resource reports filed at the beginning 
of the pre-filing process will contain every detail required for the 
ultimate report that will need to be filed with the application. The 
resource reports required in Sec.  50.5(e)(7) should be preliminary 
reports that contain sufficient information for Commission staff to 
commence the pre-filing process and specifically the NEPA process. 
Commission staff will work with the applicant throughout the pre-filing 
process to develop all the necessary information for each resource 
report. It should be noted, however, that delays in filing these 
materials may delay the decision to allow an application to be filed.
4. Lead Agency Issues/Coordinating Federal Permits
    105. Effective May 16, 2006, DOE delegated paragraphs (2), (3), 
(4)(A)-(B), and (5) of FPA section 216(h) to the Commission as they 
apply to proposed facilities in designated national interest electric 
transmission corridors.\29\ Specifically, it delegated lead agency 
responsibilities for the purpose of coordinating all applicable Federal 
authorizations and related environmental review and preparing a single 
environmental review document for facilities in a National Corridor.
---------------------------------------------------------------------------

    \29\ Supra note 5.
---------------------------------------------------------------------------

    106. PJM states that the Final Rule should promote coordination 
among Federal agencies and the resolution of disputes among Federal 
agencies. AEP states that while the Commission developed well-defined 
procedures for interacting with State agencies, it should also 
coordinate siting for the various Federal agencies. DOI requests 
clarification on whether there are two separate pre-filing processes 
(one led by DOE and one led by the Commission). Western Energy Board 
raises similar concerns regarding the duplication of the two processes.
    107. As stated, several Federal agencies including DOE and the 
Commission entered into a MOU to establish a framework for early 
cooperation and participation that will enhance coordination of all 
applicable land use authorizations, related environmental, cultural, 
and historic preservation reviews, and any other approvals that may be 
required under Federal law in order to site electric transmission 
facilities. The MOU requires participating agencies, to the

[[Page 69453]]

extent practicable, to commit to early involvement and cooperation to 
ensure that timely decisions are made and that the responsibilities of 
each agency are met. The Commission intends to work with DOE and the 
participating agencies to ensure that all Federal permit decisions are 
rendered in a timely manner.
    108. National Grid states that the Commission should request that 
DOE delegate lead agency status to the Commission at the time the 
Commission's pre-filing process begins rather than at the filing of an 
application. Virginia Electric states that the Commission should try to 
amend its delegated authority to transfer DOE's pre-application 
coordination to the Commission or coordinate and use DOE's pre-
application process to the maximum extent practicable as its own pre-
filing process. It contends that anything else may require the 
applicant to duplicate its agency review activities with the Commission 
and DOE. EEI requests that the Commission explain the timing and 
coordination of its lead agency authority with DOE and clarify that 
filing requirements from permitting agencies be relevant, and 
preferably significant.
    109. We anticipate working closely with DOE and other Federal 
agencies under the terms of the DOE MOU to coordinate all Federal 
actions and to ensure that DOE's and Commission's processes interact 
seamlessly and with as little duplication of effort as possible. We 
expect that we will coordinate with DOE on an ongoing basis on general 
issues regarding these matters, as well as on specific cases. In light 
of this, we see no need to seek amendment of DOE's delegation order.
    110. Progress contends that the Commission should exercise lead 
agency authority in circumstances where Federal agencies are impeding 
the construction of new transmission facilities regardless of whether 
the State still has jurisdiction or if it is outside a National 
Corridor. California PUC similarly urges the Commission to use its lead 
agency authority to get Federal agencies to expeditiously review 
applications during the time an application is filed at the State 
level. PSE&G encourages the Commission not to overstep its statutory 
authority in this regard.
    111. Under DOE's May 17, 2006 delegation order, the Commission is 
responsible for acting as lead agency when an applicant has submitted 
an application to the Commission to construct or modify electric 
transmission facilities. Thus, the Commission's lead agency delegated 
authority only pertains to facilities subject to the Commission's 
jurisdiction in National Corridors. DOE retains lead agency authority 
for coordinating Federal action on facilities not subject to the 
Commission's delegated authority.
5. Timeframe for Pre-Filing
    112. Because of the potential for differences between projects, the 
Commission does not propose to set exact timeframes for the pre-filing 
process. The timeframe will depend upon, among other things, the size 
of the project, stakeholder participation, the applicant's 
preparedness, and the applicant's progress at the State level. The 
Commission expects that the pre-filing process for large, multistate 
``greenfield'' projects, will take longer than the pre-filing process 
for minor modifications to existing facilities.\30\ The Commission 
anticipates that the pre-filing process for extensive projects may take 
a year to complete. Additionally, the environmental resource reports 
required under Sec.  380.16, discussed below, will require 
comprehensive field work to compile the information necessary to comply 
with the Commission's obligations under NEPA.
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    \30\ Greenfield facilities are facilities that primarily will be 
located in new rights-of-way.
---------------------------------------------------------------------------

    113. Southern states that the Commission should acknowledge that 
the time required for processing applications will vary and that the 
Commission may also lack authority to require any deadline is met. 
American Transmission states that the Commission should create a 
definitive timeline for the submission of information and for the 
receipt of responsive action by Commission staff. DOI also urges the 
Commission to establish a chronological timeline to assist applicants 
and permitting entities to better understand the timing of steps within 
the permitting process. EEI opposes a uniform pre-filing process 
schedule. Allegheny states that minor modifications should not require 
a full-blown pre-filing process.
    114. Northern Wasco County Peoples Utility District and Seattle 
City Light state that since major transmission projects entail long 
lead-times for land acquisition, procurement, design/engineering and 
construction, they are concerned that the rule may unnecessarily 
prolong the amount of time required to take action on project 
applications. SDG&E states that the rules should embody the urgency 
reflected in the statute that energy security may be at stake due to 
delays in transmission siting. EEI requests that the Commission explain 
the variables in determining how long the pre-filing and NEPA processes 
will take. Allegheny states that a two-year process for authorization 
is too long for extensive, reliability-driven transmission projects.
    115. As stated in the NOPR and above, because of the potential 
differences between projects, the Commission cannot establish or 
predict timeframes for electric transmission projects proceedings. NEPA 
requires the Commission to conduct an independent environmental 
analysis of a proposed project. The Commission's NEPA analysis may 
require a more stringent review of the environmental impacts than is 
required at the State level. The pre-filing timeframe is dependent upon 
how far along the applicant is on compiling the information needed by 
the Commission, the complexity of the project, and what additional 
information will be required based on the specific issues raised for 
the individual project. The Commission agrees that time is of the 
essence in the siting of these facilities. Thus, it believes that it is 
incumbent on a project sponsor and States to work together in an 
attempt to site the facilities at the State level. This would be the 
most expeditious way to site the facilities.
6. Review of Director's Decisions in Pre-Filing
    116. Under Sec.  50.5(f), the Director of OEP will determine when 
there is sufficient information for the applicant to file its 
application. Old Dominion requests that the Commission provide an 
opportunity for stakeholder comment before the OEP Director determines 
that the pre-filing process is complete. Allegheny states that since 
the Commission had delegated broad authority to OEP, it should provide 
potential applicants with an opportunity to seek Commission review of 
OEP's decisions. Southern states that the Commission should add a 
review process to allow applicants to review and challenge a 
determination by the Director of OEP. It claims that an absence of due 
process could lead to court challenges. DOI requests that Federal 
agencies be consulted prior to the conclusion of the pre-filing 
process.
    117. Stakeholders have various opportunities to comment during the 
pre-filing process. Therefore, we do not believe it is necessary to add 
any additional round of comments. Moreover, once the pre-filing process 
is complete, the applicant will be filing an application for Commission 
review of the proposed facility which will be noticed and subject to 
the Commission's intervention and protest procedures. As

[[Page 69454]]

a general matter, the Commission relies on its staff to develop the 
record necessary for the Commission to act on energy project 
applications, and it does not anticipate entertaining interlocutory 
appeals regarding the Director of OEP's pre-filing decisions.

E. Application Requirements

    118. Pennsylvania PUC states that for a more informed process the 
Commission should include procedures whereby the application would 
publicly disclose what information or data the application has omitted. 
Section 50.2(c) requires that the applicant provide all information 
required in Part 50 unless it shows that the information is not 
necessary. We find that this is sufficient to address the concern 
raised by Pennsylvania PUC.
    119. NRECA states that entities seeking permits should be required 
to show that all requirements are met, including Federal, State, and 
Tribal permitting requirements which would be consistent with the 
natural gas regulations. Section 50.2(d) is identical to the 
requirement in Sec.  157.5(c) and no further modification is necessary.

F. Filing Requirements

    120. Section 50.6 lists the general requirements that need to be 
met when filing an application for a permit. Section 50.6(e) requires 
that the applicant demonstrate how its proposed project would satisfy 
the requirements of FPA section 216(b)(2) through (6). The Commission 
will review this information in addition to the technical information 
provided in the Exhibits submitted under Sec.  50.7 in making its 
findings concerning the proposed project. As stated, the filing 
requirements in Sec. Sec.  50.6 and 50.7 are the basic information that 
the Commission will need for a generic project. However, each project 
will have its own unique issues that will need to be considered on a 
case-by-case basis. An applicant may request a waiver of a specific 
requirement if it believes it may not be applicable to its particular 
project. Similarly, the Commission may request additional information 
if it deems it is necessary to address issues raised by a proposed 
project.
    121. Various commenters raised issues concerning the Commission's 
need for specific requirements in each of the exhibits. Some requested 
that the Commission require additional information. Others question the 
Commission's need for some of the required information. Several 
commenters request that the Commission accept the record from the State 
proceeding to satisfy some of the Commission's filing requirements.
1. State Record
    122. The Commission received numerous comments requesting that it 
maximize the use of information, notices, and materials produced during 
the State siting process to avoid the costly duplication of 
materials.\31\ Specifically, Allegheny states that the Commission 
should not require an applicant to notify stakeholders, conduct public 
meetings, and submit studies of information that are duplicative of 
State commission requirements. PHI Companies contend that, at a 
minimum, the Commission should allow for a waiver of various pre-filing 
and application steps that the applicant can demonstrate have been 
satisfied in the State proceeding. Committees request that the 
Commission require that the record already developed for any State 
permitting authority be filed and included in the Commission's record.
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    \31\ Communities, American Public Power, EEI, PHI Companies, 
PSE&G, NARUC, Allegheny, SDG&E, National Grid, American 
Transmission, SoCal Edison, Pennsylvania PUC, Western Governor's, 
Virginia Electric, PPL Electric, and California PUC.
---------------------------------------------------------------------------

    123. California PUC states that the Commission should incorporate 
the findings from the State siting process into its proceeding. SDG&E 
asserts that the Commission should accept the State's environmental 
review to the extent it satisfies the requirements of NEPA and to rely 
on prior NEPA analysis performed as well. Pennsylvania PSC states that 
the Commission should incorporate the work of already existing planning 
processes conducted either by regional State organizations or RTOs. 
SoCal Edison recommends that the Commission adopt generally applicable 
standards for the submission of previously collected materials to 
expedite the process. PPL Electric urges the Commission to rely on the 
aid of State officials to navigate the State siting procedures.
    124. It is our expectation that by working with States, applicants, 
Federal agencies and other stakeholders on an ongoing basis, we will be 
able to ensure, to the maximum extent possible, that information 
developed in State proceedings can be used, where appropriate, at the 
Commission, thereby increasing efficiency and lessening burdens on all 
parties.
    125. While the Commission will accept any pertinent information 
developed in the State proceeding or elsewhere into its record, the 
Commission is required under NEPA to do an independent review of 
environmental impacts. The Commission will take all filed information 
into consideration as it conducts its review. Similarly, it will 
consider the State findings while it considers its own findings under 
FPA section 216(b). Its ultimate determination on whether to issue a 
permit, however, will be based on the entire record developed in the 
Commission proceeding after due consideration of all the issues raised.
2. Exhibits
    126. Section Sec.  50.7 contains the requirements for the exhibits 
that must be filed with the application. The exhibits will contain the 
technical data needed for the Commission's analysis of the application. 
All the environmental data required under Part 380, specifically the 
Resource Reports required under Sec.  380.16, will be filed as proposed 
Exhibit F. Engineering data and system analysis data must be filed in 
Exhibits G and H.
    127. The Massachusetts Energy Board recommends that the Commission 
add another exhibit that would require that the applicant submit 
construction information including: construction procedures; 
construction schedules; plans to coordinate with local authorities; 
construction noise impacts and noise mitigation; mitigation of wetland 
impacts of construction; plans for mitigation of the traffic impacts of 
project construction; and plans to inhibit unauthorized travel on the 
right-of-way. These are all required to be filed under the 
environmental requirements in Exhibit F or will be addressed in the 
Commission environmental analysis. Therefore, additional exhibits are 
not necessary.
    128. Affiliated contends that either Sec.  50.6 or Sec.  50.7 
should require an exhibit which describes all tribal interests in the 
project and outcomes from all Tribal stakeholder participation in the 
project pre-filing activities and any issues discussed and whether they 
were either resolved or unresolved and details of the resolution or 
breakdown in discussions. Tribal governments or agencies are required 
to be notified at the beginning of the pre-filing process. In addition, 
information concerning tribal interests are required under Sec.  
360.16(f) and Sec.  360.16(j). The Commission believes this is 
sufficient basic information for the Commission to commence its review 
of a proposed project. As stated, each project will raise its own 
unique issues for which the Commission may request additional 
information if it deems it is necessary to

[[Page 69455]]

address particular issues raised by a proposed project. Any information 
developed during the pre-filing process will be made part of the record 
and will be considered by the Commission as it conducts its substantive 
review when an application is subsequently filed.
a. Exhibit E--Maps
    129. Section 50.7(e) states that the format for maps will be 
determined during the initial pre-filing consultation. American 
Transmission contends that the Commission should use a uniform format 
that satisfies other government agencies and avoids redundancy. Because 
technology changes over time, the Commission will not specify a 
specific format in its regulations. Particular formats will be 
addressed during the initial pre-filing consultation. Additionally, a 
potential applicant may contact Commission staff at any time for 
guidance on the Commission's required formats.
b. Exhibit F--Environmental Requirements
    130. The Commission is required to conduct an environmental 
analysis of a proposed electric transmission project under NEPA. 
Exhibit F requires that the applicant file the environmental 
information required under Part 380 of the Commission's regulations. As 
stated, the filing requirements are the basic information that the 
Commission will need for a generic project. However, each project will 
have its own unique issues that will need to be considered on a case-
by-case basis. At the pre-filing consultation and throughout the pre-
filing process, Commission staff will work with the applicants and 
stakeholders to determine the issues that arise for each project. 
Depending on those issues, the Commission staff may require additional 
information. Conversely, if certain of the filing requirements are not 
needed for certain projects, Commission staff will consider whether 
waivers are appropriate for those requirements.
    131. Massachusetts Energy Board states that the Commission should 
include regulatory procedures for evaluating alternatives to a project, 
minimizing environmental impacts, and denying a permit to construct a 
project that has significant avoidable adverse impacts. The principal 
purposes of the Commission's environmental review are to: (1) Identify 
and assess the potential impact on the natural and human environment 
that would result from the implementation of a proposed project; (2) 
identify and recommend reasonable alternatives, including, as 
appropriate, alternatives other than transmission lines, and specific 
mitigation measures to avoid or minimize environmental impact; and (3) 
encourage and facilitate public involvement in the environmental review 
process. During the application process, the Commission will review the 
analysis created in the environmental document in concert with the 
other information analyzed during its review process to determine if it 
is in the public interest to issue a permit to construct the 
facilities. If it determines that it is not, it will deny the 
application.
    132. Reinhardts state that the Commission should broaden its rules 
and its area of inquiry to reasonably justify whether one State or 
region should suffer the significant environmental and aesthetic 
burdens associated with large transmission infrastructure to bring 
economic benefit and pollution reduction to another. The Commission's 
mandate under the FPA is to determine if the proposed facility is 
consistent with the public interest on a national level. It may be that 
a transmission facility will cross several States in order to benefit 
consumers in other States. The fact that the facility may not benefit 
the State's crossed by the facility is not determinative on the 
Commission's decision if the facility benefits a broader region.
    133. Communities state that the applicant should be required to 
demonstrate a good faith attempt to negotiate access, and if access is 
denied, provide thorough research of all available documentation 
regarding the property. The Commission expects that the applicant will 
attempt to negotiate access to as much of the proposed right-of-way as 
possible for survey purposes. It is in landowners' best interests to 
allow the applicant access and to get involved in the pre-filing 
process to have input in the ultimate alignment of the proposed 
facility. During the pre-filing and application processes, there is 
more flexibility to achieving shifts in alignment of the proposed 
facility to accommodate individual landowner needs on their property.
i. Section 380.5--Actions That Require EAs
    134. Section 380.5 (b)(14) provides that under certain 
circumstances the Commission may prepare an environmental assessment 
(EA) instead of an environmental impact statement (EIS) for a proposed 
project. American Transmission seeks clarification on whether the 
Commission will allow applicants the option of preparing a preliminary 
applicant-prepared environmental assessment. The Commission will decide 
if an EA or EIS is applicable for a proposed project. If the Commission 
determines that an EA is appropriate, the Commission will accept an 
applicant-prepared preliminary draft. After reviewing the draft, the 
Commission may still require a third-party contractor to assist with 
finalizing the draft NEPA document.
ii. Section 380.6--Actions That Require EISs
    135. Section 380.6 requires that an EIS be prepared for major 
electric transmission facilities using a right-of-way in which there is 
no existing facility.\32\ Affiliated proposes that the Commission also 
add ``for which there are likely to be endangered species impacted, 
substantial issues under the National Preservation Act, or a 
significant impact to the natural or human environment.'' The 
Commission will require an EIS for these and several other reasons. The 
decision on what needs to be addressed in the EIS generally is 
determined on a case-by-case basis based on the information compiled 
during the pre-filing process. We do not believe it is appropriate to 
add language that could be interpreted to limit the Commission's 
discretion to prepare an EIS.
---------------------------------------------------------------------------

    \32\ Section 380.6 also lists when EISs are required for natural 
gas pipelines and hydroelectric projects. AEP requests that the 
Commission eliminate the references to pipeline projects. Those 
sections were added to assure the proper placement of the semicolons 
and the word ``and''. They have no other purpose relative to 
electric transmission siting.
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    136. Virginia Electric contends that the Commission should delete 
the ``major'' before ``transmission facilities'' in Sec.  380.6 because 
FPA section 216 confers jurisdiction to the Commission over all 
electric transmission facilities. The word major in Sec.  380.6 denotes 
when the Commission will prepare an EIS under Sec.  380.6 as opposed to 
an EA under Sec.  380.5. The Commission will still review all proposals 
for electric transmission facilities under its FPA jurisdiction.
iii. Section 380.10--Participation in Commission Proceeding
    137. In Sec.  380.10(a)(2)(iii), the Commission clarified that 
interventions should not be filed in natural gas pre-filing proceedings 
and in the proposed electric transmission pre-filing proceedings. Old 
Dominion points out that while interested parties cannot intervene in 
the pre-filing phase, they can submit comments. New Jersey BPU states 
that this section should reference the stakeholder participation 
provided in Sec. Sec.  50.4 and 50.5 to clarify that

[[Page 69456]]

stakeholders have the right to be involved in the process.
    Section 380.10(a)(2)(iii) already refers back to the pre-filing 
activities under Sec.  50.5. We do not believe any further reference to 
that section is necessary.
iv. Resource Report 1--General Requirements
    138. Resource Report 1 requires that the applicant describe, among 
other things, the facilities associated with the project, special 
construction and operation procedures, and construction timetables. 
National Grid contends that whether a project is going to be built in 
an existing right-of-way should dictate the amount and type of data 
needed on construction methods, workspace, and related matters. As 
stated, specific projects will be considered on a case-by-case basis. 
Projects constructed in an existing right-of-way will raise different 
issues than a greenfield facility.
    139. Section 380.16(c)(2)(i), requires maps and photos covering at 
least a one-half mile wide corridor centered on the electric 
transmission facility centerline. Communities contend that a fair 
definition of the area of impact should begin with a minimum of one-
half mile and require an evaluation of the extent beyond that point for 
each type of impact. National Grid states that the map and photos 
should be consistent with the State's corridor requirements. The 
Commission uses the one-half mile distance as a generally acceptable 
distance for its map requirements. On a case-by-case basis, it will 
determine the extent of the area of impact based on the specific 
information gathered during the review process.
    140. Section 380.16(c)(2)(i) requires United States Geological 
Survey (USGS) 7.5-minutes series topographic maps or maps of equivalent 
detail. The Massachusetts Energy Board contends that these maps are not 
adequate for a detailed evaluation of impacts in densely populated 
areas and requests a better resolution of detail than USGS-based maps. 
We agree that the impact of a proposed facility in a densely populated 
area will raise different issues than a facility located in a rural 
area. The Commission will address the issues, as necessary, in each 
individual proceeding before the Commission.
    141. The Center for Biological Diversity requests that the general 
content requirement include a full lifecycle assessment and air quality 
and greenhouse gas emissions. It contends that the Commission's NEPA 
analyses must address the full lifecycle of electric generation and 
include analysis, mitigation measures, and alternatives that address 
air quality impacts, energy losses, criteria pollutants, and greenhouse 
gas emissions. The Commission will review these impacts of the proposed 
facilities, as required by NEPA and all other relevant environmental 
laws.
v. Resource Report 2--Water Use and Quality
    142. Section 380.16(d) requires that the applicant describe water 
quality and provide data sufficient to determine the expected impact of 
the project and effectiveness of mitigation, enhancement, or protective 
measures. DOI urges the Commission to review the regional impact from 
local water use. EEI states that the requirement that the applicant 
identify known public and private groundwater supply wells or springs 
is inappropriate for above-ground facilities. AEP contends that the 
Commission should eliminate this requirement because it only pertains 
to pipeline projects. National Grid states that the Commission should 
grant requests for waiver for this report for overhead electric 
transmission projects where no water use or quality effects would 
occur.
    143. The construction of electric transmission facilities will 
create ground disturbance that may disrupt groundwater in the area of 
the construction. Thus, the Commission will require that the applicant 
comply with the requirements of this section.
vi. Resource Report 3--Fish, Wildlife, and Vegetation
    144. Section 360.16(e) requires that the applicant file information 
describing aquatic life, wildlife, and vegetation in the vicinity of 
the proposed project. Massachusetts Energy Board requests that the 
Commission require applicants to provide habitat information obtained 
from State natural heritage officials. Section 360.16 (e)(8) requires 
that applicants include correspondence from, among others, State fish 
and wildlife agencies. We believe this is sufficient to address 
Massachusetts Energy Board's concern.
    145. DOI requests that the applicant identify Federal- and State-
listed threatened or endangered species in the project area and the 
impacts to such species in this report. It also requests the section be 
expanded to require mitigation for invasive species. Sections 
360.16(e)(4) and (5) require that the applicant address specific areas 
of significant habitats or communities of species of special concern to 
the Federal- and State-listed or proposed threatened or endangered 
species or critical habitat, respectively.
vii. Resource Report 4--Cultural Resources
    146. Section 360.16(f) requires that the applicant file the 
information needed for the Commission to determine that it has complied 
with the requirements of the National Historic Preservation Act (NHPA). 
Wilderness states that Resource Report 4 should explicitly state that 
the project must comply with section 106 of the NHPA. DOI requests that 
the report should be expanded to cover nationally and regionally 
significant historical and cultural resources. It also believes the 
report should cover the potential construction impacts on archeological 
sites which may be present in the identified project site.
    147. Resource Report 4 is specifically designed to gather all the 
information necessary for the Commission to comply with NHPA section 
106. We do not believe it is necessary to specifically state this in 
the list of information that the Commission requires the applicant to 
file. Resource Report 4 requires that the applicant provide the 
information requested by DOI. Moreover, the Commission's environmental 
review document will cover the potential impacts on the identified 
sites.
    148. Communities state that there is no valid reason for allowing 
the delay in the filing of certain reports until immediately before the 
permit is issued. They contend that all such reports should be filed 
with the application or the application may be deemed incomplete until 
such filings are made. The Commission does not believe it is necessary 
that the applicant have all the cultural resources reports and plans 
completed before it issues a permit. Under some circumstance where 
access to private property is denied, the applicant will not have 
access to the property to complete the report until after the permit is 
issued and the applicant gains access by eminent domain. The Commission 
will not authorize construction, however, until permittee has complied 
with all the requirements of NHPA and all other relevant environmental 
laws.
    149. National Grid contends that the Commission should grant 
requests for waiver of Resource Report 4 if overhead electric lines are 
on existing rights-of-way. Regardless of the location of the 
facilities, the Commission will still need to comply with NHPA section 
106.
viii. Resource Report 5--Socioeconomics
    150. Section 360.16(g) requires that the applicant provide 
information concerning the impact of the proposed

[[Page 69457]]

project on the towns and counties in the vicinity of the project. 
Section 360.16(g)(2) requires that the applicant evaluate the impact of 
any substantial immigration of people on governmental facilities and 
services, and plans to reduce the impact on local infrastructure.
    151. EEI states that electric transmission line construction 
typically does not involve a large influx of workers into an area, so a 
requirement for an evaluation of the impact of the immigration of 
people and a fiscal impact analysis evaluating incremental local 
government expenditures is unnecessary. The construction of any major 
energy infrastructure facility has the potential to require some influx 
of workers into the areas. Depending on the facilities available, 
number of employees, and duration of their stay they may have a major 
impact on communities. This may especially be the case with the 
expedited construction we expect for permitted projects.
    152. Under Sec.  360.16(g)(7), the applicant is required to conduct 
a property value impact analysis of the proposed transmission line for 
residential properties located adjacent to or abutting the right-of-
way. Numerous commenters recommended expansion or deletion of the 
proposed property value impact analysis.
    153. EEI requests that the Commission delete the requirement for a 
property value impact analysis for residential properties located 
adjacent or abutting to the proposed right-of-way. National Grid 
asserts that requiring property value impact for these facilities is 
unwarranted and it would serve only to promote and fuel not-in-my-
backyard sentiment. It also contends that assessing property values for 
virgin right-of-ways would be very time consuming with no tangible 
benefits.
    154. Virginia Electric states that there is no consensus to support 
a conclusion that transmission lines have any impact on real property 
values and that the type of property value impact studies in this 
regulation would overstate, by double-counting, the normal right-of-way 
cost for the project. SoCal Edison believes such a requirement would be 
highly subjective and could significantly delay approval of a 
transmission facility. EEI is concerned that a property value impact 
study would be highly subjective and could further complicate 
negotiations and communication between the transmission project sponsor 
and homeowners in the vicinity of the project. AEP states that the 
Commission should reconsider requiring this information because it will 
be time-consuming and the conclusions would be highly speculative.
    155. EEI and SoCal Edison assert that there is no similar 
requirement in the Commission's regulation regarding the siting of 
other energy infrastructure. SoCal Edison states that such an analysis 
is not required by NEPA. EEI, National Grid, and SoCal Edison also note 
that this type of information is not generally required at the state 
level.
    156. Communities request that the analysis include all landowners, 
residential and commercial, within the entire area of impact and should 
require a fiscal impact analysis on both local and regional economies. 
Wilderness recommends that the Commission's analysis use the methods 
described in ``Socio-Economic Framework for Public Land Management 
Planning: Indicators for the West's Economy''. In addition, it requests 
that the assessment consider the potential impacts on the values of 
public lands.
    157. After considering the comments raised in this proceeding, the 
Commission agrees that the property value impact analysis should be 
eliminated from the Final Rule. The Commission believes that requiring 
such information could significantly delay the development of 
transmission projects, which is contrary to the national interest. The 
Commission also is concerned with the accuracy of such studies and the 
fact that no uniform methodology is available to calculate the impact 
of transmission lines on property values. In many cases, such studies 
could be highly speculative and inaccurate while providing limited 
beneficial information to the public. Finally, the Commission agrees 
that there is no particular rationale why such a study should be 
required when it is not required for other infrastructure projects 
before the Commission or generally required at the State level.
    158. Given the speculative nature of these reports and the time and 
resources the application would need to dedicate towards completion of 
this study, the Commission does not believe such a requirement is 
consistent with the purpose of EPAct 2005. The Commission will consider 
such information when provided in making a determination on the 
project, but such information will not be required.
ix. Resource Report 6--Geological Resources
    159. Section 350.16(h) requires that the applicant describe 
geological resources and hazards in the project area that might be 
directly or indirectly affected by the proposed action or that could 
place the proposed facilities at risk, the potential effects of those 
hazards on the facilities, and methods proposed to reduce the effects 
or risks. National Grid states that this requirement should be 
eliminated for overhead electric transmission line projects and 
required only for underground projects, where the nature of the 
facility makes such analysis relevant and appropriate.\33\ Construction 
of electric transmission facilities will require the placement of 
towers subject to substantial loads in areas with potential geological 
hazards that the Commission would want to take into account in its 
analysis. Therefore, we will not eliminate this requirement.
---------------------------------------------------------------------------

    \33\ DOI requests that Resource Report 6 address impacts to 
local aquifers or water sources which may supply water to local 
communities. These impacts are specifically addressed in Resource 
Report--2--Water use and quality.
---------------------------------------------------------------------------

x. Resource Report 7--Soils
    160. Section 360.16(i) requires that the applicant provide 
information on the soils that will be affected by the proposed project, 
the effect on those soils, and measures to minimize or avoid impact. 
EEI, AEP, and National Grid contend that the Commission should 
eliminate this requirement because electric transmission projects will 
have no significant impacts on soil. We disagree. Whenever there is 
ground disturbance and the possibility of erosion, the Commission needs 
to determine the potential impact of that activity.
    161. DOI recommends that this report include a requirement to 
identify highly erodible soils. Section 360.16(i)(1) requires that the 
applicant list the soil associations that would be crossed and 
describe, among other things, the erosion potential. We think this 
adequately addresses DOI's concern.
xi. Resource Report 8--Land Use, Recreation, and Aesthetics
    162. Section 360.16(j) requires that the applicant describe the 
existing uses of land within a quarter mile of the edge of the proposed 
right-of-way and changes to the land use if the project is approved. It 
also requires that the applicant list all buildings within a half-mile 
of the center of the proposed right-of-way. Communities state that the 
Commission should clarify in the regulation that not only must existing 
land use be evaluated but also all permitted land use. Under Sec.  
360.16(j)(3), the applicant is required to provide information on 
``planned development'' in the project area, which is defined as 
development included in a master plan or on file with local planning 
authorities and would included permitted land use.

[[Page 69458]]

    163. DOI requests that this report include identification of the 
loss of agricultural/grazing property within the project area. Section 
360.16(j) requires that the applicant address changes to those land 
uses that will occur if the project is approved.
    164. EEI states that the requirement that the applicant submit 
information regarding a corridor that is one-half mile wide is 
unnecessarily broad, and could pose an undue burden on the applicant, 
and would exceed the study corridor width used in many States. It 
contends that the appropriate corridor width will vary from State to 
State depending on topography, the nature of development in the 
vicinity, and other factors. Therefore, it requests that the Final Rule 
be modified to permit the applicant to propose a corridor width that 
takes these factors into account. In the alternative, EEI states that 
the Final Rule should be modified to require information be provided 
for a corridor that is 200 feet wide, an approach that it states is 
consistent with current practice in certain States. Southern raises 
similar concerns. AEP states that the Commission's land use requirement 
of a quarter mile would be excessively costly. DOI also requests that 
the Commission explain the justification for the quarter-mile distance 
requirement.
    165. The Commission believes that it is reasonable to require 
preliminary information on land uses and inhabited buildings within a 
half-mile corridor along a proposed transmission line. Having 
information about such areas from the outset will enable the Commission 
to more efficiently examine minor routing alternatives or 
modifications. In some instances, based on a review of the preliminary 
materials and information gained during the scoping process, the 
Commission may request additional information.
    166. Section 350.16(j)(4) requires that the applicant identify 
various areas including, among others, sugar maple stands, orchards and 
nurseries, game management areas, national or State forest, parks, golf 
courses, or recreational or scenic areas. Massachusetts Energy Board 
requests that the Commission add cranberry bogs after orchards and 
nurseries. The Commission will consider additional areas that need to 
be identified on a case-by-case basis depending on the proposed 
project.
    167. Wilderness requests that the Commission lands managed by the 
Bureau of Land Management, the National Park Service, and the U.S. 
Forest Service be specifically listed as requiring information in 
Resource Report 8. It contends that the regulations should emphasize 
the protection of the special values of public lands. Section 
360.16(j)(4) requires that the applicant identify all lands owned and 
controlled by Federal or State agencies, as well as land owned by 
private preservation groups in addition to parks and recreation areas. 
We believe this sufficiently covers the areas of concern raised by 
Wilderness in its comment. If Wilderness believes that something was 
overlooked when an applicant makes a specific filing, it can file 
comments during the Commission's scoping period.
    168. EEI states that the Commission's requirement that the 
applicant identify Indian Tribes that may attach significance to the 
project's right-of-way is broad and vague and should be removed. It 
contends that there are transmission lines that are hundreds of miles 
long and that it would be difficult to determine the ``project 
vicinity''. EEI asserts that the cultural resources consultations with 
Native Americans required in Sec.  380.16(f) and the requirement that 
the applicant identify Native American religious sites and cultural 
properties in Sec.  380.16(j)(4) should be sufficient to assure that 
appropriate consideration is given to the impacts on tribal resources 
of a proposed transmission facility.
    169. Affiliated states that the applicant should provide names of 
all Indian tribes who may have permit authority or the ability to 
consent to, or withhold consent over, any aspect of the project. 
Affiliated also asserts that the rule should describe the different 
interests tribes have in projects, either as permitting and consenting 
entities inside the external boundaries of reservations, or outside of 
reservations on tribal traditional lands or cultural places. It should 
also explicitly cite, describe, and inform other stakeholders of the 
Commission's tribal obligations, identify treaty rights, and any other 
tribal interests that may be impacted by the proposed project. 
Confederated Tribes of the Warm Springs Reservation of Oregon 
(Confederated Tribes) requests that the Commission require an applicant 
to identify treaty rights and any other tribal interests that may be 
impacted by the proposed project in Sec.  380.16(j)(5).
    170. As discussed above, the Commission believes that the filing 
requirements concerning tribal interests under Sec.  360.16(f) and 
Sec.  360.16(j) and the notification requirements under Sec.  50.4(c) 
are sufficient to provide the basic information for the Commission to 
commence its review of a proposed project.
    171. Pre-filing is an information gathering process. During this 
process, Commission staff will work with the applicant to make sure 
that all interested stakeholders, including any tribes, have been made 
aware of the proposed project and have had an opportunity for their 
views and recommendations to be considered. Any issues particular to a 
proposed project will be raised and evaluated during the pre-filing 
process. Information developed during the pre-filing process will be 
made part of the record and will be considered by the Commission as it 
conducts its review when an application is subsequently filed.
    172. Southern contends that the requirement in Sec.  350.16(j)(6) 
to list all schools, homes, and other structures within one-half mile 
of a proposed facility and AM radio transmitters within 10,000 feet 
imposes an enormous burden with no discernible benefit. We disagree. It 
is more efficient for Commission staff to consider the land use and 
aesthetic issues within a wider area than to prematurely narrow the 
focus of the evaluation and scoping process. Any lesser requirement 
might require the applicant to do a more expansive review later in the 
process in response to stakeholder comments which could potentially 
extend the processing time for the proposed project.
    173. Section 380.16(j)(11) requires that the applicant describe the 
visual characteristics of the lands and waters affected by the project. 
EEI states that significant visual impacts are inherent in virtually 
all transmission line construction and cannot be avoided or minimized 
in most cases. Therefore, it argues that the Commission's requirement 
that the applicant describe how the facilities will impact the visual 
character of the project right-of-way and list measures to lessen these 
impacts should be modified to clarify that an applicant must only 
propose measures to lessen such impacts ``to the extent practicable.'' 
The Commission understands that it is difficult to lessen the impact of 
an electric transmission facility and will consider visual impacts on a 
case-by-case basis, but nevertheless needs visual impact information to 
complete its NEPA and public interest analysis.
    174. National Grid states that the Commission should change this 
report to require the applicant to identify and give a general 
description of the surrounding areas and describe the effect of the 
proposed project on those areas. A general description of the 
surrounding areas is not sufficient for the Commission's land use 
review. As

[[Page 69459]]

stated, it is more efficient for the Commission to consider land use 
issues within a wider area.
xii. Resource Report 9--Alternatives
    175. Section 380.16(k) requires that the applicant describe 
alternatives to the project and compare the environmental impacts of 
the alternatives. Center for Biological Diversity wants to ensure the 
full environmental impacts of the alternatives are considered. National 
Grid states that the Commission should clarify that the applicant is 
only required to prepare resource reports for proposed projects, not 
alternatives. American Transmission requests that the Commission 
specify what is meant by all alternatives, including the identity of 
the number of alternative routes that must be considered. AEP states 
that Resource Report 9 would require excessive research, including 
costly environmental analyses, to be completed on an undefined and 
seemingly limitless number of alternative routes. Southern states that 
it is not clear how much information an applicant needs to collect to 
review and report on alternatives and that it could lead to an enormous 
burden.
    176. For the preliminary reports required at the early stages of 
pre-filing, the applicant need only submit information that would allow 
Commission staff to discern reasonable alternatives. As the Commission 
conducts its site visits and reviews the comments submitted during the 
scoping period, alternatives will be considered. Once the applicant 
reaches a decision regarding its final proposed route, it will need to 
comply with the resource report requirements for that route before the 
application is filed.
    177. Wilderness states that alternatives should be identified to 
avoid the locations identified in Resource Report 8 or to explain why 
they could not be avoided altogether. It also requests that a 
transparent comparison of costs and environmental impacts should be 
included in this section. The purpose of the Commission's NEPA analysis 
is to analyze the potential environmental impacts of a proposed project 
and reasonable alternatives to that project. Section 380.16(k) requires 
that applicants describe and evaluate alternatives including a 
discussion of costs and benefits. While the avoidance of impacts to 
special land use areas is not specifically addressed in the resource 
report, it will be explored through the course of the NEPA review.
    178. APPA states that non-wires alternatives should be thoroughly 
evaluated ``up front'' during the interregional planning process and 
should not be among the alternatives evaluated by the Commission in the 
construction permit application process. Massachusetts Energy Board, 
New Jersey BPU, and Pennsylvania PUC all request that the Commission 
consider alternatives beyond new transmission lines, including 
configuration and design alternatives, upgrades to existing 
transmission facilities, and demand side alternatives. Reinhardts 
suggest the Commission consider ``system alternatives'' to a proposed 
project as opposed to just route alternatives. California PUC contends 
that the Commission should consider alternatives inside and outside the 
National Corridors and use all the information on alternatives 
developed in the State siting process. Communities requests that the 
Commission require the applicant to evaluate all technologically 
achievable alternatives.
    179. NEPA requires the Commission to consider and discuss 
reasonable alternatives; it does not require consideration of patently 
unsuitable alternatives.\34\ The Commission's experience in the 
hydropower and gas pipeline programs is that the range of reasonable 
alternatives can best be determined based upon the facts of a specific 
siting proposal. In light of the specific facts raised by individual 
projects, the applicant will be required to address a variety of 
alternatives in the resource reports, including, where appropriate, 
alternatives other than new transmission lines. Moreover, reasonable 
alternatives can be identified by Commission staff or other 
stakeholders at various points during the proceeding for consideration 
in the NEPA process.
---------------------------------------------------------------------------

    \34\ See American Rivers v. FERC, 201 F.3d 1186, 1200 (9th Cir. 
2000).
---------------------------------------------------------------------------

xiii. Resource Report 10--Reliability and Safety
    180. Section 380.16(l) requires that the applicant address 
potential hazards to the public and how these will affect reliability. 
Communities request that the report include an evaluation of homeland 
security issues and whether the project will result in energy 
independence. Homeland security related issues will be addressed on a 
case-by-case basis.
    181. Southern states that the Commission should not require an 
applicant to include a discussion on potential acoustic or electric 
noise from electric and magnetic fields (EMF). National Grid contends 
that since these requirements are duplicative of local requirements, 
the Commission should waive the requirements where the applicant can 
demonstrate that comparable requirements are being complied with at a 
local level. As discussed above, an applicant may use any information 
developed during its planning stage and for the State proceeding to 
satisfy the Commission's filing requirements. However, it must clearly 
explain and demonstrate how that information complies with the 
Commission's specific requirements.
xiv. Resource Report 11--Design and Engineering
    182. EEI states that the requirement that the applicant submit 
detailed design and engineering drawings showing all major project 
structures is inconsistent with typical industry and State permitting 
practice which is to only submit pole spotting or spacing information 
and general consideration of structure type when siting authorization 
is sought. It states that detailed engineering is then completed after 
a proposed transmission project is authorized. EEI contends that 
electric transmission lines are subject to specific field designs along 
their entire length to accommodate particular circumstances. Therefore, 
it states it would be more appropriate for the Commission to require 
the submission of detailed engineering information after a permit is 
issued rather than beforehand. National Grid states that this 
requirement should be modified to require only maps of the proposed 
siting route and drawings depicting the predominate type of structures 
to be used.
    183. The Commission expects the applicant to be able to commence 
construction when the Commission issues the permit. The applicant can 
develop its design during the pre-filing phase, but the Commission 
expects that all design plans should be well-defined when it files its 
application.
    184. Massachusetts Energy Board requests that the Commission 
require applicants to provide an explanation for any selection of a 
structure design that is different from structures already present and 
an explanation of any structure placement that is longitudinally offset 
from existing structures. Resource Report 1 requires that the applicant 
describe the facilities associated with the proposed construction. If 
the Massachusetts Energy Board believes additional information is 
required for a specific project, it should file comments during the 
NEPA scoping process and those comments will be addressed in that 
proceeding.

[[Page 69460]]

c. Exhibit G--Engineering Data
    185. The Commission requires specific engineering data to support 
its review of a proposed transmission line in Exhibit G. National 
Manufacture's contend that flexibility should be allowed in the permit 
application facilities description because the design will probably not 
be finalized at the time of permit application. It also notes that 
filings have historically been made 5 to 10 years before the final 
design is completed. The Commission expects that the applicant will be 
prepared to commence construction when the permit is issued. Thus, it 
will need to have all its final designs completed prior to when the 
Commission issues an order on the merit of a proposed project.
    186. Massachusetts Energy Board states that the Commission should 
require applicants to provide: (1) Existing and expected EMF cross-
sectional profiles for points along a proposed project and identify any 
low-cost mitigation of EMF; (2) information on interference with 
existing cathodic protection systems; (3) an analysis of noise levels: 
(4) engineering data on substations and switching station that would be 
constructed or altered in connection with the transmission line 
project; and (5) any other information that has been identified as a 
requirement component of siting review or of an application to 
construct in the State in which the facility will be located. DOI also 
requests the Commission review the potential environmental impact of 
noise.
    187. The information Massachusetts Energy Board and DOI recommend 
the Commission should require applicants to provide is already required 
by Resource Report 10. Should other pertinent information be identified 
during the State siting process, this information may be filed for 
consideration by the Commission.
d. Exhibit H--System Analysis Data
    188. Exhibit H requires information to evaluate the impact the 
proposed facilities will have on the existing electric transmission 
system performance, including an analysis of existing and expected 
congestion, power flow cases which include contingency data files, a 
list of assumptions and guidelines used in the cases, a stability 
analysis, a short circuit analysis and a concise analysis that explains 
how system reliability will be improved, how long-term regional 
planning is impacted and how congestion will be impacted on the 
applicant's entire system.
    189. Communities state that system analyses should include all 
relevant reliability assessments completed by State commissions, ISO, 
RTO, energy service companies and the like. New Jersey BPU states that 
the Commission analysis should include input from a RTO/ISO (if 
applicable) because they are in the best position to analyze the impact 
new facilities will have on overall system performance. In determining 
whether to issue a permit to construct the proposed facilities, the 
Commission will review all processes that were conducted by the 
applicant with the relevant stakeholders in determining whether to 
approve the proposed facilities, including input from RTOs and ISOs.
    190. Reinhardts contend that the Commission must consider how 
interstate transmission will impact electricity available to individual 
States and regions. They state that the Commission's rules must include 
data requirements that would shed light on potential reliability 
issues. They also assert that the rules should: (1) Require full 
disclosure of all electric generation (new or existing) for which the 
new transmission facilities have been proposed; (2) require that 
alternatives to the proposed transmission include alternative electric 
generation scenarios; and (3) require a detailed analysis of all 
impacts that would be imposed by construction of the desired interstate 
transmission resources that are expected to feed into the new 
transmission facilities to meet identifiable power needs. APPA and PJM 
suggest more details concerning the reliability criteria the Commission 
will use to approve projects. PSEG Companies and APPA contend that 
there is a need for a broad congestion analysis.
    191. The Commission anticipates that DOE will designate corridors 
to help connect existing generation to load. In most cases, the 
proposed project will be limited to transmission facilities designed to 
achieve this purpose. The Commission's decision on the proposed project 
will take into account the applicant's submitted reliability and 
systems analysis, an analysis of alternatives, and an analysis of 
project impacts as required by NEPA. Additionally, based on the 
specific issues that arise in individual projects, the Commission may 
request additional information to assure that the proposed project is 
in compliance with any Commission-approved reliability standard.
e. Exhibit I--Project Cost and Financing
    192. Exhibit I requires general information concerning the cost of 
the proposed project. Communities state that the applicant should 
provide a detailed analysis of the projected cost impact on customers 
both inside and outside the National Corridors. California PUC states 
that the description of project financing should identify the specific 
mechanisms by which the applicant will seek cost recovery, what 
categories of ratepayer costs would be recovered from, and what rate or 
other incentives the applicant proposes to seek. It contends that this 
will provide adequate transparency regarding the financial impact of 
the project on the State or region.
    193. Cost recovery and the effect on customer rates are not part of 
the proceeding to issue a construction permit. The Commission will 
address issues related to the costs associated with the proposed 
facilities in separate rate proceedings filed under FPA section 
205.\35\ Any concerns about cost recovery should be raised in those 
proceedings.
---------------------------------------------------------------------------

    \35\ See, e.g., Allegheny Energy, Inc., 116 FERC ] 61,058 
(2006), American Electric Power Service Corp., 116 FERC ] 61,059 
(2006). See also Promoting Transmission Investment through Pricing 
Reform, 71 FR 43294 (July 31, 2006); FERC Stats. & Regs. ] 31,222 
(2006).
---------------------------------------------------------------------------

G. Critical Energy Infrastructure Information

    194. Information filed during the pre-filing and application 
proceedings will likely contain critical energy infrastructure 
information (CEII). Under Sec.  50.4(c)(5), access to this information 
is subject to the CEII requirement in Sec.  388.113 of the Commission's 
regulations.
    195. Western Energy Board,\36\ NARUC, and CA Resources contend that 
the Commission should recognize that State agencies with permitting or 
other regulatory authority with respect to a project are 
distinguishable from individuals or businesses seeking CEII information 
for their own private interests. They state that such agencies are 
invested by statute with safeguarding the public interest and as such, 
have a need to know with respect to CEII, and should not be required to 
demonstrate a need for the CEII when requesting this material. In their 
filings, they make various recommendations for changes to the 
Commission's CEII regulations.
---------------------------------------------------------------------------

    \36\ Washington Council adopts the comments of the Western 
Energy Board.
---------------------------------------------------------------------------

    196. On September 21, 2006, in Docket No. RM06-23-000, the 
Commission issued a notice of proposed rulemaking regarding its 
regulations for access to CEII.\37\ Copies of the comments

[[Page 69461]]

submitted by Western Energy Board, NARUC, Washington Council, and CA 
Resources have been placed in the official record in Docket No. RM06-
23-000, and will be addressed in that proceeding.
---------------------------------------------------------------------------

    \37\ Critical Energy Infrastructure Information, 71 FR 58321 
(Oct. 3, 2006); FERC Stats. & Regs. ] 32,607 (2006).
---------------------------------------------------------------------------

    197. DOI requests the Commission include a definition of CEII along 
with an identified procedure for obtaining CEII. The Commission finds 
that the reference in Sec.  50.4(c)(5) to the CEII regulations Sec.  
388.113 is sufficient to direct the reader to the Commission's 
procedures concerning CEII.

H. Accepting/Rejecting Applications

    198. Under Sec.  50.8(b), the Director of OEP may reject an 
application that does not comply with any applicable statute, rule, or 
order as provided for under Sec.  385.2001(b) of the Commission's 
regulations. Allegheny requests that the Commission impose a 10-day 
deadline for the rejection of applications as required under Sec.  
157.8(a) of the Commission's natural gas regulations. The Director of 
OEP will either notice the application or reject it, in a timely 
manner. Assigning an arbitrary deadline for these actions is not in the 
interest of an applicant who is earnestly trying to perfect an 
application.

I. Hearings

    199. Section 50.3(e) states that the Commission will conduct a 
paper hearing on applications for permits for electric transmission 
facilities. NARUC contends that the regulations do not provide for 
notice and an opportunity for a hearing as required under FPA section 
216(b). They argue that the major portion of the Commission's 
examination of the application and the participation of the States 
occurs in the pre-filing process and that the applicant, not the 
Commission, is tasked with deciding what kind of participation process 
will provide interested persons an opportunity to be heard. They state 
that because the majority of the evaluative work performed with respect 
to the application will occur before the hearing process ever begins, 
the Commission will deprive interested persons of the ability to 
participate in a fair and open process. NARUC also states that during 
the pre-filing process the applicant can make its case to the 
Commission before interested persons can intervene, test the 
information provided by the applicant, and provide their own analysis 
without being subject to the Commission's ex parte restrictions.
    200. Pre-filing is an information-gathering process. The Commission 
will assign a docket number at the beginning of the process. All 
filings made in that docket from both the applicant and stakeholders 
will be available for anyone to comment on. During this process, 
Commission staff will work with the applicant to make sure that all 
interested stakeholders have been made aware of the proposed project 
and have had an opportunity for their views and recommendations to be 
considered. The Commission staff also will start its environmental 
scoping and review process. During this process, Commission staff will 
conduct public meetings and/or technical conferences and work with the 
applicant and all stakeholders to formulate the issues raised by a 
particular project and to compile the information that will be needed 
by the Commission to address those issues when it conducts the 
substantive review of the proposed project during the application 
process. During pre-filing, Commission staff will be available to 
provide guidance on the process to both the applicant and any 
interested stakeholder.
    201. Once the Commission staff determines that there is sufficient 
information for the Commission to evaluate the proposed project, the 
applicant will file its application. At that point, the hearing 
envisioned under FPA section 216(b) will commence. The application will 
be subject to the Commission's notice, intervention, and protest 
requirements. Based on the information in the application and the 
information compiled during the application proceeding, the Commission 
will evaluate the proposed project and issue an order on the merits. 
Thus, any interested stakeholder will have numerous opportunities to 
participate not only informally during the pre-filing process, but also 
formally during the application process.
    202. Southern contends that a paper hearing should not preclude an 
evidentiary hearing in the event that circumstances dictate one. Iowa 
Board similarly argues that paper hearings should not foreclose the 
possibility of a live hearing if it is more appropriate. New Jersey BPU 
states that the Commission should determine the nature of the hearing 
depending on the circumstances, including whether material issues of 
fact are in dispute that cannot be adequately resolved on the written 
record. Pennsylvania PUC urges the Commission to adopt provisions that 
provide for a hearing that affords entities an opportunity to present 
their case in full using all due process protections afforded by a 
contested on-the-record proceeding. SoCal Edison states that when 
material disputes are raised, the Commission should have a full hearing 
before an ALJ with the appropriate protections. Western Governors raise 
similar concerns.
    203. The Commission believes that in most instances, the Commission 
will make its ultimate determination on the basis of the paper record 
compiled in the proceeding. The Commission may order a trial-type 
hearing, however, either on its own motion or the motion of any 
interested party of record in accordance with subpart E of Part 385 of 
the regulations if the Commission deems it appropriate.

J. Permit Conditions

    204. Section 50.11(b) requires that the permittee accept the permit 
in writing within 30 days from the date of the order issuing the 
permit. EEI contends that the deadline should be extended to allow the 
permittee to seek rehearing. It states that this is necessary because 
certain aspects of the permit order may render the proposed project 
uneconomic or otherwise infeasible. Therefore, it states that the 
applicant's rehearing request must be addressed before it can determine 
whether or not to accept the permit. Allegheny makes similar arguments. 
The Commission agrees that an applicant should be able to appeal the 
Commission's decision before it is required to accept its permit and 
has modified Sec.  50.11(b) accordingly.
    205. Los Angeles Department of Water and Power (Los Angeles DWP) 
contends that acceptance of a permit would require approval of its 
Board of Commissioners and that the approval may take more than 30 
days. Los Angeles DWP proposes that the 30 day period be extended in 
response to a reasonable request by the applicant. The Commission may 
waive a rule for good cause shown. If a permittee needs an extension of 
time to accept its permit it may request a waiver of Sec.  50.11(b).
    206. Section 50.11(c) requires, among other things, that the 
facilities be constructed in a matter to prevent interference with 
service furnished by other public utilities. Imperial states that the 
construction, installation, operation, and maintenance of new 
transmission facilities should be conducted in a manner that prevents 
interference with service not only furnished by public utilities, but 
also services furnished by non-public utilities. We will add non-public 
utilities to Sec.  50.11(c).
    207. Section 50.11(d) requires written authorization from the 
Director of OEP prior to commencing construction or initiating 
operations of the approved facilities. American Transmission states 
that the Commission's issuance of a permit should be sufficiently final 
so that applicants can begin the

[[Page 69462]]

construction process, including making financial commitments. It 
contends that any further delay would be unnecessary. The Commission 
generally imposes a substantial number of conditions in its orders 
authorizing project construction, such as requests that the permittee 
receive all final comments from various resource agencies before 
commencing construction. Additionally, the permittee may not be able to 
conduct all of the required surveys until it is able to condemn the 
property with the eminent domain authority received with the issuance 
of the Commission's permit. Thus, the Commission requires that the 
permittee complete all conditions precedent before it will authorize 
the construction of the facilities.
    208. Virginia Electric states that written authorization obtained 
from the Director of OEP should permit both commencing construction of 
the facilities and initiating operations. A single permit will allow 
for the timely construction and operations of new transmission 
facilities. Generally, the Commission will not authorize the 
commencement of service on the new facilities until it determines that 
the rehabilitation and restoration of the right-of-way and other areas 
affected by the project are proceeding satisfactorily. Accordingly, the 
permittee needs authorization from the Director of OEP to make the 
facilities available for service.
    209. Communities contend that in instances of delayed construction, 
there should be a provision for reopening the order granting the permit 
to allow for public scrutiny of the change of circumstances to ensure 
that the delay is in the public interest. Section 50.11(e) requires 
that the facilities be completed within the timeframe specified in the 
Commission order. If the facilities are constructed as required by the 
Commission, there will be no reason to revisit the Commission's 
decision. Section 50.11(e) also states that if the permittee does not 
complete the facilities within the specified timeframe it must file a 
request for an extension of time.
    210. Under Sec.  50.11(g) a permitee must notify affected 
landowners that have executed easement agreements to convey property 
rights for the proposed facilities if the permit is transferred. EEI 
states that the requirement that the permit holder notify all affected 
landowners if a permit is transferred could be unduly burdensome in 
many instances when the permittee no longer knows the identity of 
landowners along the right-of-way because the transmission line was 
authorized and landowners consulted many years previously. The 
Commission is issuing a permit to construct the facilities. If a permit 
is transferred at any time before the facilities are constructed, the 
new permittee will be required to contact all landowners subject to 
easement agreements that a different company will be constructing the 
facilities and who they will need to contact while the facilities are 
being constructed.
    211. Affiliated states that compliance with applicable tribal law 
should be included as condition to a permit. Section 50.11 details 
general conditions that will apply to all permits issued by the 
Commission. The Commission also will impose other conditions to address 
specific issues that will arise in a proceeding on a case-by-case 
basis.
    212. American Transmission states that the Commission should 
include reporting requirements which could capture any changes since a 
permit is issued. National Grid states that there should be no ongoing 
reporting requirements regarding operations and maintenance. The 
Commission's jurisdiction under FPA section 216 is to issue permits to 
construct electric transmission facilities. Once the facilities are 
constructed and operational and all the Commission's right-of-way 
restoration conditions have been met, the Commission's jurisdiction 
over the facilities under FPA section 216 ends. Thus, there will be no 
changes to the permits or any ongoing reporting and maintenance 
requirements.

K. State and Local Permits

    213. Under Sec. Sec.  50.5(c)(2) and (3) the applicant is required 
to include a description of the zoning requirements for the facilities 
and a list of local entities with local authorization requirements, 
respectively. EEI states that the requirements that the applicant 
describe the zoning and site availability for any permanent facilities 
and to account for each of the local permitting requirements could 
potentially be misconstrued by localities to imply that a transmission 
project sponsor must obtain local permits. It contends that this is 
counter to the plain language of FPA section 216 that preempts State 
and local law, including zoning requirements. It requests that the 
Commission clarify that the Final Rule preempts State and local 
permitting requirements. American Transmission requests that the 
Commission clarify the need for zoning requirement information.
    214. While the Commission may, where appropriate, require 
applicants comply with State and local permitting, we note, any State 
or local permits issued with respect to jurisdictional facilities must 
be consistent with the conditions of the Commission's permit. The 
Commission encourages cooperation between the applicants and local 
authorities. However, this does not mean that State and local agencies, 
through application of State or local laws, may prohibit or 
unreasonably delay the construction of facilities approved by the 
Commission.\38\
---------------------------------------------------------------------------

    \38\ See, e.g., Schneidewind v. ANR Pipeline Co., 485 U.S. 293 
(1988); National Fuel Gas Supply v. Public Service Comm'n, 894 F.2d 
571 (2d Cir. 1990).
---------------------------------------------------------------------------

    215. Communities state that while the Commission may assert 
jurisdiction over the siting of transmission facilities, it cannot 
ignore the role the States must still play in the siting process. They 
argue that the Commission is attempting to limit State authority to 
only State agencies that provide authorization under Federal law. They 
contend that this is inconsistent with the requirements of FPA section 
216(h)(3) which requires that the NEPA review process be coordinated 
with State agencies conducting separate permitting and environmental 
reviews.
    216. FPA section 216(h), which is entitled ``Coordination of 
Federal Authorizations for Transmission Facilities'', directs the 
Commission, under its delegated authority, to ``coordinate the Federal 
authorization and review process under this subsection with * * * State 
agencies''. Section 216(h)(3) specifically involves only Federal 
authorizations. Under FPA section 216(h)(4), however, the Commission 
can coordinate with ``State agencies that are willing to coordinate 
their own separate permitting and environmental reviews with the 
Federal authorizations and environmental reviews.''
    217. As stated, under Sec.  50.5(c)(3), in the initial pre-filing 
filing requirements the applicant is required to list all local 
entities with local authorization requirements. Section 50.5(c)(3) also 
requires that the applicant explain how it intends to account for the 
local permits in the environmental review process and when it intends 
to file for such permits. Once the pre-filing process commences, under 
Sec.  50.5(e)(6), the applicant is required to submit a schedule 
detailing when it intends to submit the applications with the local 
agency. Further, under Sec.  50.5(e)(8), the applicant is required to 
submit status reports updating its progress in obtaining those permits.
    218. Commission staff will work with the applicant and the local 
agencies throughout the pre-filing and

[[Page 69463]]

application process to get the information required for all applicable 
Federal and State permit processes needed to site the proposed 
facilities. However, as discussed above, a State or local agency cannot 
prevent the construction of the facility through its permitting 
process, which is preempted by Federal law in instances where our 
jurisdiction is triggered under FPA section 216. For example, it would 
be inconsistent with the text, purpose and intent of FPA section 216 to 
allow a State permitting agency to halt the construction of a facility 
that has been permitted by the Commission for the very reason that the 
State agency withheld approval of the project for more than one year. 
To hold otherwise would essentially render FPA section 216 a nullity.

L. Subsequent Modifications to Facilities

    219. Several commenters request clarification on how a permittee 
may make minor improvements to the facilities authorized by the 
Commission after they are constructed. EEI requests that the permit 
include provisions that allow a permittee to make minor improvements 
after facilities are constructed. Allegheny states that the Commission 
should clarify the process for making modifications to existing 
facilities to specify that an applicant is not required to first seek 
State approval. Allegheny further requests that when such a 
modification is proposed, the Commission's review be limited to the 
proposed modifications, whether the existing facility was sited by the 
Commission or State siting authority. National Grid contends that a 
transmission siting permit is valid in perpetuity. It argues that 
otherwise, an applicant would have no incentive for investment. It also 
requests that the Commission develop criteria to determine whether 
project modification requires notice to the Commission or a revision to 
the permit.
    220. As stated, once the facilities are constructed, the 
Commission's jurisdiction under FPA section 216 ends. All modifications 
to existing transmission facilities will be subject to the provisions 
of FPA section 216 at the time the facilities are proposed. 
Specifically, the facilities will have to be located in a then-
designated National Corridor and will have to qualify for the 
Commission's jurisdiction under FPA section 216(b)(1).

M. Definitions

    221. Section 50.1 lists the terms the Commission determined needed 
to be specifically defined in the regulations. Allegheny requests that 
the Commission define the terms ``project'' and ``transmission 
facility'' to clarify that they only pertain to the portions of 
transmission facilities that a transmission owner is unable to 
successfully site through a State process. Southern contends that the 
Commission should consider defining ``project'' to embody the 
triggering requirements in FPA section 216(b). The only projects that 
the Commission will be issuing permits to are those that will fall 
under FPA section 216(b). Thus, no further explanation of those terms 
is necessary.
    222. National Grid requests that the Commission define ``Electric 
transmission facilities'' to include those facilities, including 
various listed equipment and materials, used for the transmission of 
electric energy in interstate commerce for the sale of electric energy 
at wholesale. Transmission facilities that will be subject to a 
Commission permit will include all the facilities necessary to provide 
service on the facilities approved by the Commission. Further 
definition of facilities in the regulations is unnecessary.
    223. Section 50.1 defines transmitting utility as an entity that 
owns, operates, or controls facilities used for the transmission of 
electric energy in interstate commerce for the sale of electric energy 
at wholesale. Massachusetts Energy Board states that the Commission 
should consider defining the terms ``transmission'' and ``wholesale'' 
in the definition of transmitting utility or reference the existing CFR 
definitions. Section 50.1 defines a transmitting utility consistent 
with the definition in FPA section 3(23). The Commission does not 
believe any further definition is necessary.
    224. Southern requests that the Commission define the term 
``applicant'' and clarify that the permitting process will only be 
available to transmission utilities, unless exceptional circumstances 
are shown. The Commission does not believe that it was Congress' intent 
in enacting EPAct 2005 to limit the construction of electric 
transmission facilities in national interest transmission corridors to 
any specific entity. The Commission will accept any viable project 
proposed by any prospective transmission company.

N. Eminent Domain Issues

    225. Under Sec.  50.4(c)(2)(i)(E), the applicant must include a 
brief summary of what rights the affected landowner has at the 
Commission and in proceedings under the eminent domain rules of the 
relevant State. Reinhardts request that the pre-filing notifications 
include a statement that the applicant will have the ability to use the 
power of eminent domain to get the land for the facility and the basis 
for that authority. Southern states that the Commission should not 
require an applicant to summarize the State eminent domain rules 
because the applicant would be legally liable for the accuracy of this 
information.
    226. The Commission believes that the applicant should provide 
landowners with some basic information concerning what is involved in 
the eminent domain process. The general public is probably not greatly 
informed on these matters and may need to invest significant time and 
money just to get a basic understanding. We do not believe that 
providing this information would put the applicant at risk for 
unnecessary litigation, especially if the applicant prefaces its 
explanation with a disclaimer statement. It can also refer the 
landowner to a State agency or the State Attorney General for further 
information concerning the laws of their State, if appropriate. 
Additionally, we will require that the applicant explain that it has 
the right to acquire the property by eminent domain under FPA section 
216(e).
    227. Communities suggest that if State law limits eminent domain 
authority, the Federal court likewise is constrained. Southern states 
that the Commission should make clear how, and to what extent, the 
United States District Courts are to employ State practices and 
procedures as part of an eminent domain proceeding commenced in a 
Federal forum. Section 216(e)(3) of the FPA states:

    The practice and procedures of any action or proceeding 
conducted under this subsection in the district court of the United 
States shall conform as nearly as practicable to the practice and 
procedures in a similar action or proceeding in the courts of the 
State in which the property is located.

    Thus, it is for the court to decide what procedures are appropriate 
for their individual proceedings.

O. Filing Fees/Funding

    228. Affiliated states that if Tribes are impacted by any project, 
a filing fee should be required by the Commission to fund reasonable 
tribal responses and requirements under these regulations. Washington 
Council contends that the Commission should require the applicants fund 
reasonable State participation in FERC siting proceedings. Parks 
Association request that the applicant fund third-party contractors for 
the research that other

[[Page 69464]]

agencies will need to do for the resource reports. The Commission does 
not require that applicants fund any participation in Commission 
proceedings and will not do so here.

P. Technical Conferences

    229. APPA, NARUC, and CA Resources request that the Commission hold 
a technical conference prior to issuing the Final Rule to discuss 
various issues raised in the NOPR. Specifically, APPA requests that the 
Commission hold a technical conference to help define diverse State and 
Federal processes and the regulator's legal authorities. NARUC contends 
that the Commission should hold a technical conference to give the 
State commissions an opportunity to address key matters related to the 
implementation of this rule. CA Resources Agency requests that the 
Commission hold a technical conference or establish an informal 
workshop to develop solutions to the issue of the concurrent 
jurisdiction and with regard to potential changes to the Commission's 
CEII regulations.
    230. The Commission believes that the comments filed in response to 
the NOPR are sufficient for the Commission to issue a Final Rule 
without further proceedings. By acting promptly, the Commission is 
assured that it will have its procedures required under FPA section 
216(c) in place when DOE designates National Corridors.

III. Information Collection Statement

    231. The Commission is submitting the following collection of 
information contained in this proposed rulemaking to the Office of 
Management and Budget (OMB) for review under section 3507(d) of the 
Paperwork Reduction Act of 1995.\39\ The Commission will identify the 
information provided for under the proposed Part 50 as FERC-729.
---------------------------------------------------------------------------

    \39\ 44 U.S.C. 3507(d).
---------------------------------------------------------------------------

    232. The number of applicants for electric transmission permits in 
national interest electric transmission corridors is unknown. Proposed 
transmission projects would have to, among other things, significantly 
reduce electric transmission congestion in a national interest electric 
transmission corridor. These corridors are yet to be defined by the 
Secretary. Also, Federal permitting of electric transmission facilities 
used in interstate commerce will occur only if, or when, States do not 
or cannot act on an application, or have conditioned a project in such 
a manner that the proposed construction or modification will not 
significantly reduce congestion in interstate commerce or is not 
economically feasible. Any estimates of the number of anticipated 
electric transmission construction permit applications are extremely 
variable, ranging from two to 20 per year.
    233. The Commission solicited comments on the Commission's need for 
the information required by the proposed regulations, whether the 
information will have practical utility, the accuracy of the provided 
burden estimates, ways to enhance the quality and clarity of the 
information that the Commission will collect, and any suggested methods 
for minimizing the respondent's burden, including the use of 
information techniques. The burden estimates for complying with this 
proposed rule are as follows:

----------------------------------------------------------------------------------------------------------------
                                                 Number of        Number of        Hours per       Total annual
               Data collection                  respondents       responses         response          hours
----------------------------------------------------------------------------------------------------------------
FERC-729....................................              10                1            9,600           96,000
----------------------------------------------------------------------------------------------------------------

    The Commission did not receive any specific comments concerning its 
burden estimates. Where commenters raised concerning specific 
information collection requirement would be burdensome to implement, 
the Commission has addressed elsewhere in the rule.
    Information Collection Costs: Because of the regional differences 
and the various staffing levels that will be involved in preparing the 
documentation (legal, technical and support) the Commission is using an 
hourly rate of $150 to estimate the costs for filing and other 
administrative processes (reviewing instructions, searching data 
sources, completing and transmitting the collection of information). 
The estimated annual cost is anticipated to be $14.4 million. The 
Commission sought comments on these estimates and did not receive any. 
Therefore, it will use these estimates in the Final Rule.
    Title: FERC-729 Electric Transmission Facilities.
    Action: Proposed Data Collections.
    OMB Control No.: To be determined.
    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 this rule will not be penalized for failing to 
respond to these collections of information unless the collections of 
information display a valid OMB control number or the Commission has 
provided justification as to why the control number should not be 
displayed.
    Respondents: Businesses or other for profit, State, local, or 
Tribal government.
    Necessity of the Information: The information collected from 
applicants will be used by the Commission to review the suitability of 
the proposal for a permit to construct the proposed electric 
transmission facilities.
    234. Interested persons may obtain information on the reporting 
requirements by contacting the following: Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426 [Attention: 
Michael Miller, Office of the Executive Director, Phone: (202) 502-
8415, fax: (202) 273-0873, e-mail: [email protected]]
    235. For submitting comments concerning the collection(s) of 
information and the associated burden estimate(s), please send your 
comments to the contact listed above and to the Office of Management 
and Budget, Office of Information and Regulatory Affairs, Washington, 
DC 20503, [Attention: Desk Officer for the Federal Energy Regulatory 
Commission, phone: (202) 395-4650, fax: (202) 395-7285, e-mail: [email protected]. As the OMB control number has not been assigned 
to this information collection, please use the docket number for 
reference in your comments.

IV. Environmental Analysis

    236. The Commission is required to prepare an EA or an EIS for any 
action that may have a significant adverse effect on the human 
environment.\40\ No environmental consideration is raised by the 
promulgation of a rule that is procedural in nature or does not 
substantially change the effect of legislation or regulations being 
amended. The proposed regulations

[[Page 69465]]

implement the procedural filing requirements for applications to 
construct electric transmission facilities. Accordingly, neither an EIS 
nor EA is required.
---------------------------------------------------------------------------

    \40\ Order No. 486, Regulations Implementing the National 
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. 
Regs. Preambles 1986-1990 ]30,783 (1987).
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V. Regulatory Flexibility Act

    237. The Regulatory Flexibility Act of 1980 (RFA) \41\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
The Commission expects entities seeking approval for interstate 
transmission siting will be major transmission utilities capable of 
financing complex and costly transmission projects. The Commission 
anticipates that the high cost of construction of transmission 
facilities will bar the entry into this field by small entities as 
defined by the RFA. Therefore, the Commission concludes that this 
proposed rule would not have a significant economic impact on a 
substantial number of small entities.
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    \41\ 5 U.S.C. 601-612.
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VI. Document Availability

    238. 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 FERC's Home Page (http://www.ferc.gov) and in FERC's 
Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. 
Eastern time) at 888 First Street, NE., Room 2A, Washington DC 20426.
    239. From FERC'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.
    240. User assistance is available for eLibrary and the FERC's 
website during normal business hours from our Help line at (202) 502-
8222 or the Public Reference Room at (202) 502-8371 Press 0, TTY (202) 
502-8659. E-mail the Public Reference Room at public.reference 
[email protected].

VII. Effective Date and Congressional Notification

    241. These regulations are effective January 30, 2007. The 
Commission has determined, with the concurrence of the Administrator of 
the Office of Information and Regulatory Affairs of OMB, that this rule 
is not a ``major rule'' as defined in section 351 of the Small Business 
Regulatory Enforcement Fairness Act of 1996. The Commission will submit 
the Final Rule to both houses of Congress and to General Accounting 
Office

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 the Commission. Commissioner Kelly dissenting in part with a 
separate statement attached.
Magalie R. Salas,
Secretary.

0
In consideration of the foregoing, the Commission adds Part 50 and 
amends Part 380, Chapter I, Title 18, Code of Federal Regulations, as 
follows:
0
1. Part 50 is added to Subchapter B to read as follows:

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

Sec.
50.1 Definitions.
50.2 Purpose and intent of rules.
50.3 Applications/pre-filing; rules and format.
50.4 Stakeholder participation.
50.5 Pre-filing procedures.
50.6 Applications: general content.
50.7 Applications: exhibits.
50.8 Acceptance/rejection of applications.
50.9 Notice of application.
50.10 Interventions.
50.11 General conditions applicable to permits.

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


Sec.  50.1  Definitions.

    As used in this part:
    Affected landowners include 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.
    Director means the Director of the Office of Energy Projects or his 
designees.
    Federal authorization means permits, special use authorization, 
certifications, opinions, or other approvals that may be required under 
Federal law in order to site a transmission facility.
    National interest electric transmission corridor means any 
geographic area experiencing electric energy transmission capacity 
constraints or congestion that adversely affects consumers, as 
designated by the Secretary of Energy.
    Permitting entity means any Federal or State agency, Indian tribe, 
multistate, or local agency 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, Tribal, or local 
agency, any affected non-governmental organization, affected landowner, 
or interested person.
    Transmitting utility means an entity that owns, operates, or 
controls facilities used for the transmission of electric energy in 
interstate commerce for the sale of electric energy at wholesale.


Sec.  50.2  Purpose and intent of rules.

    (a) The purpose of the regulations in this part is to provide for 
efficient and timely review of requests for permits for the siting of 
electric transmission facilities under section 216 of the Federal Power 
Act. The regulations ensure that each stakeholder is afforded an 
opportunity to present views and recommendations with respect to the 
need for and impact of a facility covered by the permit. They also 
coordinate, to the maximum extent practicable, the Federal 
authorization and review processes of other Federal and State agencies, 
Indian tribes, multistate, and local entities that are responsible for 
conducting any separate permitting and environmental reviews of the 
proposed facilities.
    (b) Every applicant shall file all pertinent data and information 
necessary for a full and complete understanding of the proposed 
project.
    (c) Every requirement of this part will be considered as an 
obligation of the applicant which can only be avoided by a definite and 
positive showing that the information or data called for by the 
applicable rules is not necessary for the consideration and ultimate 
determination of the application.

[[Page 69466]]

    (d) The burden of assuring that all applications and information 
submitted under this part is in an intelligible form and any omission 
of data is justified rests with the applicant.


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

    (a) Filings are subject to the formal paper and electronic filing 
requirements for proceedings before the Commission as provided in part 
385 of this chapter.
    (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 an original and 7 conformed 
copies.
    (c) When an application considered alone is incomplete and depends 
vitally upon information in another application, it will not be 
accepted for filing until the supporting application has been filed. 
When applications are interdependent, they must be filed concurrently.
    (d) All filings must be signed in compliance with Sec.  385.2005 of 
this chapter.
    (e) The Commission will conduct a paper hearing on applications for 
permits for electric transmission facilities.
    (f) Permitting entities will be subject to the filing requirements 
of this section and the prompt and binding intermediate milestones and 
ultimate deadlines established in the notice issued under Sec.  50.9.
    (g) Any person submitting documents containing critical energy 
infrastructure information must follow the procedures specified in 
Sec.  388.113 of this chapter.


Sec.  50.4  Stakeholder participation.

    A Project Participation Plan is required to ensure stakeholders 
have access to accurate and timely information on the proposed project 
and permit application process.
    (a) Project Participation Plan. An applicant must develop a Project 
Participation Plan and file it with the pre-filing materials under 
Sec.  50.5(c)(7) that:
    (1) Identifies specific tools and actions to facilitate stakeholder 
communications and public information, including an up-to-date project 
Web site and a readily accessible, single point of contact within the 
company;
    (2) Lists all central locations in each county throughout the 
project area where the applicant will provide copies of all their 
filings related to the proposed project; and
    (3) Includes a description and schedule explaining how the 
applicant intends to respond to requests for information from the 
public as well as Federal, State, and Tribal permitting agencies, and 
other legal entities with local authorization requirements.
    (b) Document Availability. (1) Within three business days of the 
date the pre-filing materials are filed or application is issued a 
docket number, an applicant must ensure that:
    (i) Complete copies of the pre-filing or application materials are 
available in accessible central locations in each county throughout the 
project area, either in paper or electronic format; and
    (ii) Complete copies of all filed materials are available on the 
project Web site.
    (2) An applicant is not required to serve voluminous or difficult 
to reproduce material, such as copies of certain environmental 
information, on all parties, as long as such material is publicly 
available in an accessible central location in each county throughout 
the project area and on the applicant's project website.
    (c) Project notification. (1) The applicant must make a good faith 
effort to notify: all affected landowners; landowners with a residence 
within a quarter mile from the edge of the construction right-of-way of 
the proposed project; towns and communities; permitting agencies; 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 application's proposed transmission 
facilities; and any known individuals that have expressed an interest 
in the State permitting proceeding. Notification must be made:
    (i) By certified or first class mail, sent:
    (A) Within 14 days after the Director notifies the applicant of the 
commencement of the pre-filing process under Sec.  50.5(d);
    (B) Within 3 business days after the Commission notices the 
application under Sec.  50.9; and
    (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) The pre-filing request notification 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 timing of the project;
    (D) A general description of the property the applicant will need 
from an affected landowner if the project is approved, how to contact 
the applicant, including a local or toll-free phone number, the name of 
a specific person to contact who is knowledgeable about the project, 
and a reference to the project website. The newspaper notice need not 
include a description of the property, but should indicate that a 
separate notice is being mailed to affected landowners and governmental 
entities;
    (E) A brief summary of what rights the affected landowner has at 
the Commission and in proceedings under the eminent domain rules of the 
relevant State. The newspaper notice does not need to include this 
summary;
    (F) Information on how to get a copy of the pre-filing information 
from the company and the location(s) where copies of the pre-filing 
information may be found as specified in paragraph (b) of this section;
    (G) A copy of the Director's notification of commencement of the 
pre-filing process, the Commission's Internet address, and the 
telephone number for the Commission's Office of External Affairs; and
    (H) Information explaining the pre-filing and application process 
and when and how to intervene in the application proceedings.
    (ii) The application notification must include the Commission's 
notice issued under Sec.  50.9.
    (3) If, for any reason, a stakeholder has not yet been identified 
when the notices under this paragraph are sent or published, the 
applicant must supply the information required under paragraphs 
(c)(2)(i) and (ii) of this section when the stakeholder is identified.
    (4) If the notification is returned as undeliverable, the applicant 
must make a reasonable attempt to find the correct address and notify 
the stakeholder.
    (5) Access to critical energy infrastructure information is subject 
to the requirements of Sec.  388.113 of this chapter.


Sec.  50.5  Pre-filing procedures.

    (a) Introduction. Any applicant seeking a permit to site new 
electric transmission facilities or modify existing facilities must 
comply with the

[[Page 69467]]

following pre-filing procedures prior to filing an application for 
Commission review.
    (b) Initial consultation. An applicant must meet and consult with 
the Director concerning the proposed project.
    (1) At the initial consultation meeting, the applicant must be 
prepared to discuss the nature of the project, the contents of the pre-
filing request, and the status of the applicant's progress toward 
obtaining the information required for the pre-filing request described 
in paragraph (c) of this section.
    (2) The initial consultation meeting will also include a discussion 
of whether a third-party contractor is likely to be needed to prepare 
the environmental documentation for the project and the specifications 
for the applicant's solicitation for prospective third-party 
contractors.
    (3) The applicant also must discuss how its proposed project will 
be subject to the Commission's jurisdiction under section 216(b)(1) of 
the Federal Power Act. If the application is seeking Commission 
jurisdiction under section 216(b)(1)(C) of the Federal Power Act, the 
applicant must be prepared to discuss when it filed its application 
with the State and the status of that application.
    (c) Contents of the initial filing. An applicant's pre-filing 
request will be filed after the initial consultation and must include 
the following information:
    (1) A description of the schedule desired for the project, 
including the expected application filing date, desired date for 
Commission approval, and proposed project operation date, as well as 
the status of any State siting proceedings.
    (2) A detailed description of the project, including location maps 
and plot plans to scale showing all major components, including a 
description of zoning and site availability for any permanent 
facilities.
    (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 local entities with local authorization 
requirements. The filing must include information concerning:
    (i) How the applicant intends to account for each of the relevant 
entity's permitting and environmental review schedules, including its 
progress in DOE's pre-application process; and
    (ii) When the applicant proposes to file with these permitting and 
local entities for the respective permits or other authorizations.
    (4) A list of all affected landowners and other stakeholders 
(include contact names and telephone numbers) that have been contacted, 
or have contacted the applicant, about the project.
    (5) A description of what other work already has been done, 
including, contacting stakeholders, agency and Indian tribe 
consultations, project engineering, route planning, environmental and 
engineering contractor engagement, environmental surveys/studies, open 
houses, and any work done or actions taken in conjunction with a State 
proceeding. This description also must include the identification of 
the environmental and engineering firms and sub-contractors under 
contract to develop the project.
    (6) Proposals for at least three prospective third-party 
contractors from which Commission staff may make a selection to assist 
in the preparation of the requisite NEPA document, if the Director 
determined a third-party contractor would be necessary in the Initial 
Consultation meeting.
    (7) A proposed Project Participation Plan, as set forth in Sec.  
50.4(a).
    (d) Director's notice. (1) When the Director finds that an 
applicant seeking authority to site and construct an electric 
transmission facility has adequately addressed the requirements of 
paragraphs (a), (b), and (c) of this section, and any other 
requirements determined at the Initial Consultation meeting, the 
Director will so notify the applicant.
    (i) The notification will designate the third-party contractor, and
    (ii) The pre-filing process will be deemed to have commenced on the 
date of the Director's notification.
    (2) If the Director determines that the contents of the initial 
pre-filing request are insufficient, the applicant will be notified and 
given a reasonable time to correct the deficiencies.
    (e) Subsequent filing requirements. Upon the Director's issuance of 
a notice commencing an applicant's pre-filing process, the applicant 
must:
    (1) Within 7 days, finalize and file the Project Participation 
Plan, as defined in Sec.  50.4(a), and establish the dates and 
locations at which the applicant will conduct meetings with 
stakeholders and Commission staff.
    (2) Within 14 days, finalize the contract with the selected third-
party contractor, if applicable.
    (3) Within 14 days:
    (i) Provide all identified stakeholders with a copy of the 
Director's notification commencing the pre-filing process;
    (ii) Notify affected landowners in compliance with the requirements 
of Sec.  50.4(c); and
    (iii) Notify permitting entities and request information detailing 
any specific information not required by the Commission in the resource 
reports required under Sec.  380.16 of this chapter that the permitting 
entities may require to reach a decision concerning the proposed 
project. The responses of the permitting entities must be filed with 
the Commission, as well as being provided to the applicant.
    (4) Within 30 days, submit a mailing list of all stakeholders 
contacted under paragraph (e)(3) of this section, including the names 
of the Federal, State, Tribal, and local jurisdictions' 
representatives. The list must include information concerning affected 
landowner notifications that were returned as undeliverable.
    (5) Within 30 days, file a summary of the project alternatives 
considered or under consideration.
    (6) Within 30 days, file an updated list of all Federal, State, 
Tribal, and local agencies permits and authorizations that are 
necessary to construct the proposed facilities. The list must include:
    (i) A schedule detailing when the applications for the permits and 
authorizations will be submitted (or were submitted);
    (ii) Copies of all filed applications; and
    (iii) The status of all pending permit or authorization requests 
and of the Secretary of Energy's pre-application process being 
conducted under section 216(h)(4)(C) of the Federal Power Act.
    (7) Within 60 days, file the draft resource reports required in 
Sec.  380.16 of this chapter.
    (8) On a monthly basis, file status reports detailing the 
applicant's project activities including surveys, stakeholder 
communications, and agency and tribe meetings, including updates on the 
status of other required permits or authorizations. If the applicant 
fails to respond to any request for additional information, fails to 
provide sufficient information, or is not making sufficient progress 
towards completing the pre-filing process, the Director may issue a 
notice terminating the process.
    (f) Concluding the pre-filing process. The Director will determine 
when the information gathered during the pre-filing process is 
complete, after which the applicant may file an application. An 
application must contain all the information specified by the 
Commission staff during the pre-filing process, including the 
environmental material required in part 380 of this chapter and the 
exhibits required in Sec.  50.7.

[[Page 69468]]

Sec.  50.6  Applications: general content.

    Each application filed under this part must provide the following 
information:
    (a) The exact legal name of applicant; its principal place of 
business; whether the applicant is an individual, partnership, 
corporation, or otherwise; the State laws under which the applicant is 
organized or authorized; and the name, title, and mailing address of 
the person or persons to whom communications concerning the application 
are to be addressed.
    (b) A concise description of applicant's existing operations.
    (c) A concise general description of the proposed project 
sufficient to explain its scope and purpose. The description must, at a 
minimum: Describe 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, origin and termination points of the 
transmission line, and the geographic character of 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.
    (e) Evidence that:
    (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 expected 
to be achieved by the proposed construction or modification of 
transmission facilities in the State;
    (2) The applicant is a transmitting utility but does not qualify to 
apply for a permit or siting approval of the proposed project in a 
State because the applicant does not serve end-use customers in the 
State; or
    (3) A State commission or other entity that has the authority to 
approve the siting of the facilities has:
    (i) Withheld approval for more than one year after the filing of an 
application seeking approval under applicable law or one year after the 
designation of the relevant national interest electric transmission 
corridor, whichever is later; or
    (ii) Conditioned its approval in such a manner that the proposed 
construction or modification will not significantly reduce transmission 
congestion in interstate commerce or is not economically feasible.
    (f) A demonstration that the facilities to be authorized by the 
permit will be used for the transmission of electric energy in 
interstate commerce, and that the proposed construction or 
modification:
    (1) Is consistent with the public interest;
    (2) Will significantly reduce transmission congestion in interstate 
commerce and protects or benefits consumers;
    (3) Is consistent with sound national energy policy and will 
enhance energy interdependence; and
    (4) Will maximize, to the extent reasonable and economical, the 
transmission capabilities of existing towers or structures.
    (g) A description of the proposed construction and operation of the 
facilities, including the proposed dates for the beginning and 
completion of construction and the commencement of service.
    (h) A general description of project financing.
    (i) A full statement as to whether any other application to 
supplement or effectuate the applicant's proposals 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.
    (j) A table of contents that must list all exhibits and documents 
filed in compliance with this part, as well as all other documents and 
exhibits otherwise filed, identifying them by their appropriate titles 
and alphabetical letter designations. The alphabetical letter 
designations specified in Sec.  50.7 must be strictly adhered to and 
extra exhibits submitted at the volition of applicant must be 
designated in sequence under the letter Z (Z1, Z2, Z3, etc.).
    (k) A form of notice suitable for publication in the Federal 
Register, as provided by Sec.  50.9(a), which will briefly summarize 
the facts contained in the application in such a way as to acquaint the 
public with its scope and purpose. The form of notice also must include 
the name, address, and telephone number of an authorized contact 
person.


Sec.  50.7  Applications: exhibits.

    Each exhibit must contain a title page showing the applicant's 
name, title of the exhibit, the proper letter designation of the 
exhibit, and, if 10 or more pages, a table of contents, citing by page, 
section number or subdivision, the component elements or matters 
contained in the exhibit.
    (a) Exhibit A--Articles of incorporation and bylaws. If the 
applicant is not an individual, a conformed copy of its articles of 
incorporation and bylaws, or other similar documents.
    (b) Exhibit B--State authorization. For each State where the 
applicant is authorized to do business, a statement showing the date of 
authorization, the scope of the business the applicant is authorized to 
carry on and all limitations, if any, including expiration dates and 
renewal obligations. A conformed copy of applicant's authorization to 
do business in each State affected must be supplied upon request.
    (c) Exhibit C--Company officials. A list of the names and business 
addresses of the applicant's officers and directors, or similar 
officials if the applicant is not a corporation.
    (d) Exhibit D--Other pending applications and filings. A list of 
other applications and filings submitted by the applicant that are 
pending before the Commission at the time of the filing of an 
application and that directly and significantly affect the proposed 
project, including an explanation of any material effect the grant or 
denial of those other applications and filings will have on the 
application and of any material effect the grant or denial of the 
application will have on those other applications and filings.
    (e) Exhibit E--Maps of general location of facilities. The general 
location map required under Sec.  50.5(c) must be provided as Exhibit 
E. Detailed maps required by other exhibits must be filed in those 
exhibits, in a format determined during the pre-filing process in Sec.  
50.5.
    (f) Exhibit F--Environmental report. An environmental report as 
specified in Sec. Sec.  380.3 and 380.16 of this chapter. The applicant 
must submit all appropriate revisions to Exhibit F whenever route or 
site changes are filed. These revisions must identify the locations by 
mile post and describe all other specific differences resulting from 
the route or site changes, and should not simply provide revised totals 
for the resources affected. The format of the environmental report 
filing will be determined during the pre-filing process required under 
Sec.  50.5.
    (g) Exhibit G--Engineering data.
    (1) A detailed project description including:
    (i) Name and destination of the project;
    (ii) Design voltage rating (kV);
    (iii) Operating voltage rating (kV);
    (iv) Normal peak operating current rating;
    (v) Line design features for minimizing television and/or radio

[[Page 69469]]

interference cause by operation of the proposed facilities; and
    (vi) Line design features that minimize audible noise during fog/
rain caused by operation of the proposed facilities, including 
comparing expected audible noise levels to the applicable Federal, 
State, and local requirements.
    (2) A conductor, structures, and substations description including:
    (i) Conductor size and type;
    (ii) Type of structures;
    (iii) Height of typical structures;
    (iv) An explanation why these structures were selected;
    (v) Dimensional drawings of the typical structures to be used in 
the project; and
    (vi) A list of the names of all new (and existing if applicable) 
substations or switching stations that will be associated with the 
proposed new transmission line.
    (3) The location of the site and right-of-way including:
    (i) Miles of right-of-way;
    (ii) Miles of circuit;
    (iii) Width of the right-of-way;
    (iv) A brief description of the area traversed by the proposed 
transmission line, including a description of the general land uses in 
the area and the type of terrain crossed by the proposed line;
    (4) Assumptions, bases, formulae, and methods used in the 
development and preparation of the diagrams and accompanying data, and 
a technical description providing the following information:
    (i) Number of circuits, with identification as to whether the 
circuit is overhead or underground;
    (ii) The operating voltage and frequency; and
    (iii) Conductor size, type and number of conductors per phase.
    (5) If the proposed interconnection is an overhead line, the 
following additional information also must be provided:
    (i) The wind and ice loading design parameters;
    (ii) A full description and drawing of a typical supporting 
structure including strength specifications;
    (iii) Structure spacing with typical ruling and maximum spans;
    (iv) Conductor (phase) spacing; and
    (v) The designed line-to-ground and conductor-side clearances.
    (6) If an underground or underwater interconnection is proposed, 
the following additional information also must be provided:
    (i) Burial depth;
    (ii) Type of cable and a description of any required supporting 
equipment, such as insulation medium pressurizing or forced cooling;
    (iii) Cathodic protection scheme; and
    (iv) Type of dielectric fluid and safeguards used to limit 
potential spills in waterways.
    (7) Technical diagrams that provide clarification of any of the 
above items should be included.
    (8) Any other data or information not previously identified that 
has been identified as a minimum requirement for the siting of a 
transmission line in the State in which the facility will be located.
    (h) Exhibit H--System analysis data. An analysis evaluating the 
impact the proposed facilities will have on the existing electric 
transmission system performance, including:
    (1) An analysis of the existing and expected congestion on the 
electric transmission system.
    (2) Power flow cases used to analyze the proposed and future 
transmission system under anticipated load growth, operating 
conditions, variations in power import and export levels, and 
additional transmission facilities required for system reliability. The 
cases must:
    (i) Provide all files to model normal, single contingency, multiple 
contingency, and special protective systems, including the special 
protective systems' automatic switching or load shedding system; and
    (ii) State the assumptions, criteria, and guidelines upon which 
they are based and take into consideration transmission facility 
loading; first contingency incremental transfer capability (FCITC); 
normal incremental transfer capability (NITC); system protection; and 
system stability.
    (3) A stability analysis including study assumptions, criteria, and 
guidelines used in the analysis, including load shedding allowables.
    (4) A short circuit analysis for all power flow cases.
    (5) A concise analysis to include:
    (i) An explanation of how the proposed project will improve system 
reliability over the long and short term;
    (ii) An analysis of how the proposed project will impact long term 
regional transmission expansion plans;
    (iii) An analysis of how the proposed project will impact 
congestion on the applicant's entire system; and
    (iv) A description of proposed high technology design features.
    (6) Detailed 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) Exhibit I--Project Cost and Financing. (1) A statement of 
estimated costs of any new construction or modification.
    (2) The estimated capital cost and estimated annual operations and 
maintenance expense of each proposed environmental measure.
    (3) A statement and evaluation of the consequences of denial of the 
transmission line permit application.
    (j) Exhibit J--Construction, operation, and management. A concise 
statement providing arrangements for supervision, management, 
engineering, accounting, legal, or other similar service to be rendered 
in connection with the construction or operation 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  Acceptance/rejection of applications.

    (a) Applications will be docketed when received and the applicant 
so advised.
    (b) If an application patently fails to comply with applicable 
statutory requirements or with applicable Commission rules, 
regulations, and orders for which a waiver has not been granted, the 
Director may reject the application as provided by Sec.  385.2001(b) of 
this chapter. This rejection is without prejudice to an applicant's 
refiling a complete application. However, an application will not be 
rejected solely on the basis that the environmental reports are 
incomplete because the company has not been granted access by affected 
landowners to perform required surveys.
    (c) An application that relates to a proposed project or 
modification for which a prior application has been filed and rejected, 
will be docketed as a new application.


Sec.  50.9  Notice of application.

    (a) Notice of each application filed, except when rejected in 
accordance with Sec.  50.8, will be issued and subsequently published 
in the Federal Register.
    (b) The notice will establish prompt and binding intermediate 
milestones and ultimate deadlines for the coordination, and review of, 
and action on Federal authorization decisions relating to, the proposed 
facilities.


Sec.  50.10  Interventions.

    Notices of applications, as provided by Sec.  50.9, will fix the 
time within which

[[Page 69470]]

any person desiring to participate in the proceeding may file a 
petition to intervene, and within which any interested regulatory 
agency, as provided by Sec.  385.214 of this chapter, desiring to 
intervene may file its notice of intervention.


Sec.  50.11  General conditions applicable to permits.

    (a) The following terms and conditions, among others as the 
Commission will find 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) The permit will be void and without force or effect unless 
accepted in writing by the permittee within 30 days from the date of 
the order issuing the permit. Provided that, when an applicant files 
for rehearing of the order in accordance with FPA section 313(a), the 
acceptance must be filed within 30 days from the issue date of the 
order of the Commission upon the application for rehearing or within 30 
days from the date on which the application may be deemed to have been 
denied when the Commission has not acted on such application within 30 
days after it has been filed. Provided further, that when a petition 
for review is filed in accordance with the provisions of FPA section 
313(b), the acceptance shall be filed within 30 days after final 
disposition of the judicial review proceedings thus initiated.
    (c) Standards of construction and operation. In determining 
standard practice, the Commission will be guided by the provisions of 
the American National Standards Institute, Incorporated, the National 
Electrical Safety Code, and any other codes and standards that are 
generally accepted by the industry, except as modified by this 
Commission or by municipal regulators within their jurisdiction. Each 
electric utility will construct, install, operate, and maintain its 
plant, structures, equipment, and lines in accordance with these 
standards, and in a manner to best accommodate the public, and to 
prevent interference with service furnished by other public or non-
public utilities insofar as practical.
    (d) Written authorization must be obtained from the Director prior 
to commencing construction of the facilities or initiating operations. 
Requests for these authorizations must demonstrate compliance with all 
terms and conditions of the construction permit.
    (e) Any authorized construction or modification must be completed 
and made available for service by the permitee within a period of time 
to be specified by the Commission in each order issuing the 
transmission line construction permit. If facilities are not completed 
within the specified timeframe, the permittee must file for an 
extension of time under Sec.  385.2008 of this chapter.
    (f) A permittee must file with the Commission, in writing and under 
oath, an original and four conformed copies, as provided in Sec.  
385.2011 of this chapter, of the following:
    (1) Within ten days after the bona fide beginning of construction, 
notice of the date of the beginning; and
    (2) Within ten days after authorized facilities have been 
constructed and placed in service, notice of the date of the completion 
of construction and commencement of service.
    (g) The permit issued to the applicant may be transferred, subject 
to the approval of the Commission, to a person who agrees to comply 
with the terms, limitations or conditions contained in the filing and 
in every subsequent Order issued thereunder. A permit holder seeking to 
transfer a permit must file with the Secretary a petition for approval 
of the transfer. The petition must:
    (1) State the reasons supporting the transfer;
    (2) Show that the transferee is qualified to carry out the 
provisions of the permit and any Orders issued under the permit;
    (3) Be verified by all parties to the proposed transfer;
    (4) Be accompanied by a copy of the proposed transfer agreement;
    (5) Be accompanied by an affidavit of service of a copy on the 
parties to the permit proceeding; and
    (6) Be accompanied by an affidavit of publication of a notice 
concerning the petition and service of such notice on all affected 
landowners that have executed agreements to convey property rights to 
the transferee and all other persons, municipalities or agencies 
entitled by law to be given notice of, or be served with a copy of, any 
application to construct a major electric generation facility.

PART 380--REGULATIONS IMPLEMENTING THE NATIONAL ENVIRONMENTAL 
POLICY ACT

0
2. The authority citation for part 380 continues to read as follows:

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


0
3. Section 380.3 is amended by republishing paragraphs (a) introductory 
text and (b) introductory text, and by adding a new paragraph (c)(3) to 
read as follows:


Sec.  380.3  Environmental information to be supplied by an applicant.

    (a) An applicant must submit information as follows:
* * * * *
    (b) An applicant must also:
* * * * *
    (c) * * *
    (3) Electric transmission project. For pre-filing requests and 
applications filed under section 216 of the Federal Power Act 
identified in Sec. Sec.  380.5(b)(14) and 380.6(a)(5).

0
4. Section 380.5 is amended by revising paragraphs (b)(11), (b)(12), 
and (b)(13), and by adding a new paragraph (b)(14) to read as follows:


Sec.  380.5  Actions that require an environmental assessment.

    (b) * * *
    (11) Approval of electric interconnections and wheeling under 
section 202(b), 210, 211, and 212 of the Federal Power Act, unless 
excluded under Sec.  380.4(a)(17);
    (12) Regulations or proposals for legislation not included under 
Sec.  380.4(a)(2);
    (13) Surrender of water power licenses and exemptions where project 
works exist or ground disturbing activity has occurred and amendments 
to water power licenses and exemptions that require ground disturbing 
activity or changes to project works or operations; and
    (14) Except as identified in Sec.  380.6, authorization to site new 
electric transmission facilities under section 216 of the Federal Power 
Act and DOE Delegation Order No. 00-004.00A.

0
5. Section 380.6 is amended by revising paragraphs (a)(3) and (a)(4) 
and by adding a new paragraph (a)(5) to read as follows:


Sec.  380.6  Actions that require an environmental impact statement.

    (a) * * *
    (3) Major pipeline construction projects under section 7 of the 
Natural Gas Act using right-of-way in which there is no existing 
natural gas pipeline;
    (4) Licenses under Part I of the Federal Power Act and part 4 of 
this chapter for construction of any unconstructed water power 
projects; and
    (5) Major electric transmission facilities under section 216 of the 
Federal Power Act and DOE Delegation Order No. 00-004.00A using right-
of-way in which there is no existing facility.
* * * * *

[[Page 69471]]


0
6. Section 380.8 is revised to read as follows:


Sec.  380.8  Preparation of environmental documents.

    The preparation of environmental documents, as defined in Sec.  
1508.10 of the regulations of the Council on Environmental Quality (40 
CFR 1508.10), on hydroelectric projects, natural gas facilities, and 
electric transmission facilities in national interest electric 
transmission corridors is the responsibility of the Commission's Office 
of Energy Projects, 888 First Street NE., Washington, DC 20426, (202) 
219-8700. Persons interested in status reports or information on 
environmental impact statements or other elements of the NEPA process, 
including the studies or other information the Commission may require 
on these projects, can contact this office.

0
7. Section 380.10 is amended by adding paragraph (a)(2)(iii) to read as 
follows:


Sec.  380.10  Participation in Commission proceeding.

    (a) * * *
    (2) * * *
    (iii) Commission pre-filing activities commenced under Sec. Sec.  
157.21 and 50.5 of this chapter, respectively, are not considered 
proceedings under part 385 of this chapter and are not open to motions 
to intervene. Once an application is filed under part 157 subpart A or 
part 50 of this chapter, any person may file a motion to intervene in 
accordance with Sec. Sec.  157.10 or 50.10 of this chapter or in 
accordance with this section.
* * * * *

0
8. Section 380.15 is amended by revising paragraph (c), the heading in 
paragraph (d), and paragraph (f)(5) to read as follows:


Sec.  380.15  Siting and maintenance requirements.

* * * * *
    (c) Safety regulations. The requirements of this paragraph do not 
affect a project sponsor's obligations to comply with safety 
regulations of the U.S. Department of Transportation and recognized 
safe engineering practices for Natural Gas Act projects and the 
National Electric Safety Code for section 216 Federal Power Act 
projects.
    (d) Pipeline and electric transmission facilities construction. * * 
*
* * * * *
    (f) * * *
    (5) For Natural Gas Act projects, the site of above-ground 
facilities which are visible from nearby residences or public areas, 
should be planted in trees and shrubs, or other appropriate landscaping 
and should be installed to enhance the appearance of the facilities, 
consistent with operating needs.

0
9. A new Sec.  380.16 is added to read as follows:


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

    (a) Introduction. (1) The applicant must submit an environmental 
report with any application that proposes the construction or 
modification of any facility identified in Sec.  380.3(c)(3). The 
environmental report must include the 11 resource reports and related 
material described in this section.
    (2) The detail of each resource report must be commensurate with 
the complexity of the proposal and its potential for environmental 
impact. Each topic in each resource report must be addressed or its 
omission justified, unless the data is not required for that type of 
proposal. If material required for one resource report is provided in 
another resource report or in another exhibit, it may be cross 
referenced. If any resource report topic is required for a particular 
project but is not provided at the time the application is filed, the 
environmental report must explain why it is missing and when the 
applicant anticipates it will be filed.
    (b) General requirements. As appropriate, each resource report 
must:
    (1) Address conditions or resources that are likely to be directly 
or indirectly affected by the project;
    (2) Identify significant environmental effects expected to occur as 
a result of the project;
    (3) Identify the effects of construction, operation (including 
maintenance and malfunctions), as well as cumulative effects resulting 
from existing or reasonably foreseeable projects;
    (4) Identify measures proposed to enhance the environment or to 
avoid, mitigate, or compensate for adverse effects of the project; and
    (5) Provide a list of publications, reports, and other literature 
or communications, including agency contacts, that were cited or relied 
upon to prepare each report. This list must include the names and 
titles of the persons contacted, their affiliations, and telephone 
numbers.
    (6) Whenever this section refers to ``mileposts'' the applicant may 
substitute ``survey centerline stationing'' if so preferred. However, 
whatever method is chosen must be used consistently throughout the 
resource reports.
    (c) Resource Report 1--General project description. This report 
must describe facilities associated with the project, special 
construction and operation procedures, construction timetables, future 
plans for related construction, compliance with regulations and codes, 
and permits that must be obtained. Resource Report 1 must:
    (1) Describe and provide location maps of all project facilities, 
include all facilities associated with the project (such as 
transmission line towers, substations, and any appurtenant facilities), 
to be constructed, modified, replaced, or removed, including related 
construction and operational support activities and areas such as 
maintenance bases, staging areas, communications towers, power lines, 
and new access roads (roads to be built or modified). As relevant, the 
report must describe the length and size of the proposed transmission 
line conductor cables, the types of appurtenant facilities that would 
be constructed, and associated land requirements.
    (2) Provide the following maps and photos:
    (i) Current, original United States Geological Survey (USGS) 7.5-
minute series topographic maps or maps of equivalent detail, covering 
at least a 0.5-mile-wide corridor centered on the electric transmission 
facility centerline, with integer mileposts identified, showing the 
location of rights-of-way, new access roads, other linear construction 
areas, substations, and construction materials storage areas. Nonlinear 
construction areas must be shown on maps at a scale of 1:3,600 or 
larger keyed graphically and by milepost to the right-of-way maps. In 
areas where the facilities described in paragraph (j)(6) of this 
section are located, topographic map coverage must be expanded to 
depict those facilities.
    (ii) Original aerial images or photographs or photo-based alignment 
sheets based on these sources, not more than one year old (unless older 
ones accurately depict current land use and development) and with a 
scale of 1:6,000, or larger, showing the proposed transmission line 
route and location of transmission line towers, substations and 
appurtenant facilities, covering at least a 0.5 mile-wide corridor, and 
including mileposts. The aerial images or photographs or photo-based 
alignment sheets must show all existing transmission facilities located 
in the area of the proposed facilities and the location of habitable 
structures, radio transmitters and other electronic installations, and 
airstrips. Older images/photographs/alignment sheets must be modified 
to show any residences not depicted in the original.

[[Page 69472]]

In areas where the facilities described in paragraph (j)(6) of this 
section are located, aerial photographic coverage must be expanded to 
depict those facilities. Alternative formats (e.g., blue-line prints of 
acceptable resolution) need prior approval by the environmental staff 
of the Office of Energy Projects.
    (iii) In addition to the copies required under Sec.  50.3(b) of 
this chapter, the applicant must send three additional copies of 
topographic maps and aerial images/photographs directly to the 
environmental staff of the Commission's Office of Energy Projects.
    (3) Describe and identify by milepost, proposed construction and 
restoration methods to be used in areas of rugged topography, 
residential areas, active croplands and sites where explosives are 
likely to be used.
    (4) Identify the number of construction spreads, average workforce 
requirements for each construction spread and estimated duration of 
construction from initial clearing to final restoration, and any 
identified constraints to the timing of construction.
    (5) Describe reasonably foreseeable plans for future expansion of 
facilities, including additional land requirements and the 
compatibility of those plans with the current proposal.
    (6) Describe all authorizations required to complete the proposed 
action and the status of applications for such authorizations. Identify 
environmental mitigation requirements specified in any permit or 
proposed in any permit application to the extent not specified 
elsewhere in this section.
    (7) Provide the names and mailing addresses of all affected 
landowners identified in Sec.  50.5(c)(4) of this chapter and certify 
that all affected landowners will be notified as required in Sec.  
50.4(c) of this chapter.
    (d) Resource Report 2--Water use and quality. This report must 
describe water quality and provide data sufficient to determine the 
expected impact of the project and the effectiveness of mitigative, 
enhancement, or protective measures. Resource Report 2 must:
    (1) Identify and describe by milepost waterbodies and municipal 
water supply or watershed areas, specially designated surface water 
protection areas and sensitive waterbodies, and wetlands that would be 
crossed. For each waterbody crossing, identify the approximate width, 
State water quality classifications, any known potential pollutants 
present in the water or sediments, and any potable water intake sources 
within three miles downstream.
    (2) Provide a description of site-specific construction techniques 
that will be used at each major waterbody crossing.
    (3) Describe typical staging area requirements at waterbody and 
wetland crossings. Also, identify and describe waterbodies and wetlands 
where staging areas are likely to be more extensive.
    (4) Include National Wetland Inventory (NWI) maps. If NWI maps are 
not available, provide the appropriate State wetland maps. Identify for 
each crossing, the milepost, the wetland classification specified by 
the U.S. Fish and Wildlife Service, and the length of the crossing. 
Include two copies of the NWI maps (or the substitutes, if NWI maps are 
not available) clearly showing the proposed route and mileposts. 
Describe by milepost, wetland crossings as determined by field 
delineations using the current Federal methodology.
    (5) Identify aquifers within excavation depth in the project area, 
including the depth of the aquifer, current and projected use, water 
quality, and known or suspected contamination problems.
    (6) Discuss proposed mitigation measures to reduce the potential 
for adverse impacts to surface water, wetlands, or groundwater quality. 
Discuss the potential for blasting to affect water wells, springs, and 
wetlands, and measures to be taken to detect and remedy such effects.
    (7) Identify the location of known public and private groundwater 
supply wells or springs within 150 feet of proposed construction areas. 
Identify locations of EPA or State-designated, sole-source aquifers and 
wellhead protection areas crossed by the proposed transmission line 
facilities.
    (e) Resource Report 3--Fish, wildlife, and vegetation. This report 
must describe aquatic life, wildlife, and vegetation in the vicinity of 
the proposed project; expected impacts on these resources including 
potential effects on biodiversity; and proposed mitigation, 
enhancement, or protection measures. Resource Report 3 must:
    (1) Describe commercial and recreational warmwater, coldwater, and 
saltwater fisheries in the affected area and associated significant 
habitats such as spawning or rearing areas and estuaries.
    (2) Describe terrestrial habitats, including wetlands, typical 
wildlife habitats, and rare, unique, or otherwise significant habitats 
that might be affected by the proposed action. Describe typical species 
that have commercial, recreational, or aesthetic value.
    (3) Describe and provide the affected acreage of vegetation cover 
types that would be affected, including unique ecosystems or 
communities such as remnant prairie or old-growth forest, or 
significant individual plants, such as old-growth specimen trees.
    (4) Describe the impact of construction and operation on aquatic 
and terrestrial species and their habitats, including the possibility 
of a major alteration to ecosystems or biodiversity, and any potential 
impact on State-listed endangered or threatened species. Describe the 
impact of maintenance, clearing and treatment of the project area on 
fish, wildlife, and vegetation. Surveys may be required to determine 
specific areas of significant habitats or communities of species of 
special concern to State, Tribal, or local agencies.
    (5) Identify all Federally-listed or proposed threatened or 
endangered species and critical habitat that potentially occur in the 
vicinity of the project. Discuss the results of the consultation 
requirements listed in Sec.  380.13(b) through Sec.  380.13(b)(5)(i) 
and include any written correspondence that resulted from the 
consultation. The initial application must include the results of any 
required surveys unless seasonal considerations make this impractical. 
If species surveys are impractical, there must be field surveys to 
determine the presence of suitable habitat unless the entire project 
area is suitable habitat.
    (6) Identify all Federally-listed essential fish habitat (EFH) that 
potentially occurs in the vicinity of the project. Provide information 
on all EFH, as identified by the pertinent Federal fishery management 
plans, that may be adversely affected by the project and the results of 
abbreviated consultations with NMFS, and any resulting EFH assessments.
    (7) Describe site-specific mitigation measures to minimize impacts 
on fisheries, wildlife, and vegetation.
    (8) Include copies of correspondence not provided under paragraph 
(e)(5) of this section, containing recommendations from appropriate 
Federal and State fish and wildlife agencies to avoid or limit impact 
on wildlife, fisheries, and vegetation, and the applicant's response to 
the recommendations.
    (f) Resource Report 4--Cultural resources. In order to prepare this 
report, the applicant must follow the principles in Sec.  380.14.
    (1) Resource Report 4 must contain:
    (i) Documentation of the applicant's initial cultural resources 
consultations, including consultations with Native Americans and other 
interested persons (if appropriate);

[[Page 69473]]

    (ii) Overview and Survey Reports, as appropriate;
    (iii) Evaluation Report, as appropriate;
    (iv) Treatment Plan, as appropriate; and
    (v) Written comments from State Historic Preservation Officer(s) 
(SHPO), Tribal Historic Preservation Officers (THPO), as appropriate, 
and applicable land-managing agencies on the reports in paragraphs 
(f)(1)(i) through (iv) of this section.
    (2) The initial application or pre-filing documents, as applicable, 
must include the documentation of initial cultural resource 
consultation(s), the Overview and Survey Reports, if required, and 
written comments from SHPOs, THPOs, and land-managing agencies, if 
available. The initial cultural resources consultations should 
establish the need for surveys. If surveys are deemed necessary by the 
consultation with the SHPO/THPO, the survey reports must be filed with 
the initial application or pre-filing documents.
    (i) If the comments of the SHPOs, THPOs, or land-management 
agencies are not available at the time the application is filed, they 
may be filed separately, but they must be filed before a permit is 
issued.
    (ii) If landowners deny access to private property and certain 
areas are not surveyed, the unsurveyed area must be identified by 
mileposts, and supplemental surveys or evaluations must be conducted 
after access is granted. In those circumstances, reports, and treatment 
plans, if necessary, for those inaccessible lands may be filed after a 
permit is issued.
    (3) The Evaluation Report and Treatment Plan, if required, for the 
entire project must be filed before a permit is issued.
    (i) In preparing the Treatment Plan, the applicant must consult 
with the Commission staff, the SHPO, and any applicable THPO and land-
management agencies.
    (ii) Authorization to implement the Treatment Plan will occur only 
after the permit is issued.
    (4) Applicant must request privileged treatment for all material 
filed with the Commission containing location, character, and ownership 
information about cultural resources in accordance with Sec.  388.112 
of this chapter. The cover and relevant pages or portions of the report 
should be clearly labeled in bold lettering: ``CONTAINS PRIVILEGED 
INFORMATION--DO NOT RELEASE.''
    (5) Except as specified in a final Commission order, or by the 
Director of the Office of Energy Projects, construction may not begin 
until all cultural resource reports and plans have been approved.
    (g) Resource Report 5--Socioeconomics. This report must identify 
and quantify the impacts of constructing and operating the proposed 
project on factors affecting towns and counties in the vicinity of the 
project. Resource Report 5 must:
    (1) Describe the socioeconomic impact area.
    (2) Evaluate the impact of any substantial immigration of people on 
governmental facilities and services and plans to reduce the impact on 
the local infrastructure.
    (3) Describe on-site manpower requirements and payroll during 
construction and operation, including the number of construction 
personnel who currently reside within the impact area, will commute 
daily to the site from outside the impact area, or will relocate 
temporarily within the impact area.
    (4) Determine whether existing housing within the impact area is 
sufficient to meet the needs of the additional population.
    (5) Describe the number and types of residences and businesses that 
will be displaced by the project, procedures to be used to acquire 
these properties, and types and amounts of relocation assistance 
payments.
    (6) Conduct a fiscal impact analysis evaluating incremental local 
government expenditures in relation to incremental local government 
revenues that will result from construction of the project. Incremental 
expenditures include, but are not limited to, school operating costs, 
road maintenance and repair, public safety, and public utility costs.
    (h) Resource Report 6--Geological resources. This report must 
describe geological resources and hazards in the project area that 
might be directly or indirectly affected by the proposed action or that 
could place the proposed facilities at risk, the potential effects of 
those hazards on the facility, and methods proposed to reduce the 
effects or risks. Resource Report 6 must:
    (1) Describe, by milepost, mineral resources that are currently or 
potentially exploitable.
    (2) Describe, by milepost, existing and potential geological 
hazards and areas of nonroutine geotechnical concern, such as high 
seismicity areas, active faults, and areas susceptible to soil 
liquefaction; planned, active, and abandoned mines; karst terrain; and 
areas of potential ground failure, such as subsidence, slumping, and 
landsliding. Discuss the hazards posed to the facility from each one.
    (3) Describe how the project will be located or designed to avoid 
or minimize adverse effects to the resources or risk to itself, 
including geotechnical investigations and monitoring that would be 
conducted before, during, and after construction. Discuss also the 
potential for blasting to affect structures, and the measures to be 
taken to remedy such effects.
    (4) Specify methods to be used to prevent project-induced 
contamination from surface mines or from mine tailings along the right-
of-way and whether the project would hinder mine reclamation or 
expansion efforts.
    (i) Resource Report 7--Soils. This report must describe the soils 
that will be affected by the proposed project, the effect on those 
soils, and measures proposed to minimize or avoid impact. Resource 
Report 7 must:
    (1) List, by milepost, the soil associations that would be crossed 
and describe the erosion potential, fertility, and drainage 
characteristics of each association.
    (2) Identify, by milepost, potential impact from: Soil erosion due 
to water, wind, or loss of vegetation; soil compaction and damage to 
soil structure resulting from movement of construction vehicles; wet 
soils and soils with poor drainage that are especially prone to 
structural damage; damage to drainage tile systems due to movement of 
construction vehicles and trenching activities; and interference with 
the operation of agricultural equipment due to the possibility of large 
stones or blasted rock occurring on or near the surface as a result of 
construction.
    (3) Identify, by milepost, cropland, and residential areas where 
loss of soil fertility due to construction activity can occur. Indicate 
which are classified as prime or unique farmland by the U.S. Department 
of Agriculture, Natural Resources Conservation Service.
    (j) Resource Report 8--Land use, recreation, and aesthetics. This 
report must describe the existing uses of land on, and (where 
specified) within 0.25 mile of, the edge of the proposed transmission 
line right-of-way and changes to those land uses that will occur if the 
project is approved. The report must discuss proposed mitigation 
measures, including protection and enhancement of existing land use. 
Resource Report 8 must:
    (1) Describe the width and acreage requirements of all construction 
and permanent rights-of-way required for project construction, 
operation and maintenance.
    (i) List, by milepost, locations where the proposed right-of-way 
would be

[[Page 69474]]

adjacent to existing rights-of-way of any kind.
    (ii) Identify, preferably by diagrams, existing rights-of-way that 
will be used for a portion of the construction or operational right-of-
way, the overlap and how much additional width will be required.
    (iii) Identify the total amount of land to be purchased or leased 
for each project facility, the amount of land that would be disturbed 
for construction, operation, and maintenance of the facility, and the 
use of the remaining land not required for project operation and 
maintenance, if any.
    (iv) Identify the size of typical staging areas and expanded work 
areas, such as those at railroad, road, and waterbody crossings, and 
the size and location of all construction materials storage yards and 
access roads.
    (2) Identify, by milepost, the existing use of lands crossed by the 
proposed transmission facility, or on or adjacent to each proposed 
project facility.
    (3) Describe planned development on land crossed or within 0.25 
mile of proposed facilities, the time frame (if available) for such 
development, and proposed coordination to minimize impacts on land use. 
Planned development means development which is included in a master 
plan or is on file with the local planning board or the county.
    (4) Identify, by milepost and length of crossing, the area of 
direct effect of each proposed facility and operational site on sugar 
maple stands, orchards and nurseries, landfills, operating mines, 
hazardous waste sites, wild and scenic rivers, designated trails, 
nature preserves, game management areas, remnant prairie, old-growth 
forest, national or State forests, parks, golf courses, designated 
natural, recreational or scenic areas, or registered natural landmarks, 
Native American religious sites and traditional cultural properties to 
the extent they are known to the public at large, and reservations, 
lands identified under the Special Area Management Plan of the Office 
of Coastal Zone Management, National Oceanic and Atmospheric 
Administration, and lands owned or controlled by Federal or State 
agencies or private preservation groups. Also identify if any of those 
areas are located within 0.25 mile of any proposed facility.
    (5) Tribal resources. Describe Indian tribes, tribal lands, and 
interests that may be affected by the project.
    (i) Identify Indian tribes that may attach religious and cultural 
significance to historic properties within the project right-of-way or 
in the project vicinity, as well as available information on Indian 
traditional cultural and religious properties, whether on or off of any 
Federally-recognized Indian reservation.
    (ii) Information made available under this section must delete 
specific site or property locations, the disclosure of which will 
create a risk of harm, theft, or destruction of archaeological or 
Native American cultural resources or to the site at which the 
resources are located, or which would violate any Federal law, 
including the Archaeological Resources Protection Act of 1979, 16 
U.S.C. 470w-3, and the National Historic Preservation Act of 1966, 16 
U.S.C. 470hh.
    (6) Identify, by milepost, all residences and buildings within 200 
feet of the edge of the proposed transmission line construction right-
of-way and the distance of the residence or building from the edge of 
the right-of-way. Provide survey drawings or alignment sheets to 
illustrate the location of the transmission facilities in relation to 
the buildings.
    (i) Buildings: List all single-family and multi-family dwellings 
and related structures, mobile homes, apartment buildings, commercial 
structures, industrial structures, business structures, churches, 
hospitals, nursing homes, schools, or other structures normally 
inhabited by humans or intended to be inhabited by humans on a daily or 
regular basis within a 0.5-mile-wide corridor centered on the proposed 
transmission line alignment. Provide a general description of each 
habitable structure and its distance from the centerline of the 
proposed project. In cities, towns, or rural subdivisions, houses can 
be identified in groups. Provide the number of habitable structures in 
each group and list the distance from the centerline to the closest 
habitable structure in the group.
    (ii) Electronic installations: List all commercial AM radio 
Transmitters located within 10,000 feet of the centerline of the 
proposed project and all FM radio transmitters, microwave relay 
stations, or other similar electronic installations located within 
2,000 feet of the centerline of the proposed project. Provide a general 
description of each installation and its distance from the centerline 
of the projects. Locate all installations on a routing map.
    (iii) Airstrips: List all known private airstrips within 10,000 
feet of the centerline of the project. List all airports registered 
with the Federal Aviation Administration (FAA) with at least one runway 
more than 3,200 feet in length that are located within 20,000 feet of 
the centerline of the proposed project. Indicate whether any 
transmission structures will exceed a 100:1 horizontal slope (one foot 
in height for each 100 feet in distance) from the closest point of the 
closest runway. List all airports registered with the FAA having no 
runway more than 3,200 feet in length that are located within 10,000 
feet of the centerline of the proposed project. Indicate whether any 
transmission structures will exceed a 50:1 horizontal slope from the 
closest point of the closest runway. List all heliports located within 
5,000 feet of the centerline of the proposed project. Indicate whether 
any transmission structures will exceed a 25:1 horizontal slope from 
the closest point of the closest landing and takeoff area of the 
heliport. Provide a general description of each private airstrip, 
registered airport, and registered heliport, and state the distance of 
each from the centerline of the proposed transmission line. Locate all 
airstrips, airports, and heliports on a routing map.
    (7) Describe any areas crossed by or within 0.25 mile of the 
proposed transmission project facilities which are included in, or are 
designated for study for inclusion in: The National Wild and Scenic 
Rivers System (16 U.S.C. 1271); The National Trails System (16 U.S.C. 
1241); or a wilderness area designated under the Wilderness Act (16 
U.S.C. 1132).
    (8) For facilities within a designated coastal zone management 
area, provide a consistency determination or evidence that the 
applicant has requested a consistency determination from the State's 
coastal zone management program.
    (9) Describe the impact the project will have on present uses of 
the affected areas as identified above, including commercial uses, 
mineral resources, recreational areas, public health and safety, and 
the aesthetic value of the land and its features. Describe any 
temporary or permanent restrictions on land use resulting from the 
project.
    (10) Describe mitigation measures intended for all special use 
areas identified under this section.
    (11) Describe the visual characteristics of the lands and waters 
affected by the project. Components of this description include a 
description of how the transmission line project facilities will impact 
the visual character of project right-of-way and surrounding vicinity, 
and measures proposed to lessen these impacts. Applicants are 
encouraged to supplement the text description with visual aids.
    (12) Demonstrate that applications for rights-of-way or other 
proposed land use have been or soon will be filed with Federal land-
management agencies with

[[Page 69475]]

jurisdiction over land that would be affected by the project.
    (k) Resource Report 9--Alternatives. This report must describe 
alternatives to the project and compare the environmental impacts of 
such alternatives to those of the proposal. It must discuss 
technological and procedural constraints, costs, and benefits of each 
alternative. The potential for each alternative to meet project 
purposes and the environmental consequences of each alternative must be 
discussed. Resource Report 9 must:
    (1) Discuss the ``no action'' alternative and other alternatives 
given serious consideration to achieve the proposed objectives.
    (2) Provide an analysis of the relative environmental benefits and 
impacts of each such alternative, including but not limited to:
    (i) For alternatives considered in the initial screening for the 
project but eliminated, describe the environmental characteristics of 
each alternative, and the reasons for rejecting it. Where applicable, 
identify the location of such alternatives on maps of sufficient scale 
to depict their location and relationship to the proposed action, and 
the relationship of the transmission facilities to existing rights-of-
way; and
    (ii) For alternatives that were given more in-depth consideration, 
describe the environmental characteristics of each alternative and the 
reasons for rejecting it. Provide comparative tables showing the 
differences in environmental characteristics for the alternative and 
proposed action. The location, where applicable, of any alternatives in 
this paragraph shall be provided on maps equivalent to those required 
in paragraph (c)(2) of this section.
    (l) Resource Report 10--Reliability and Safety. This report must 
address the potential hazard to the public from facility components 
resulting from accidents or natural catastrophes, how these events will 
affect reliability, and what procedures and design features have been 
used to reduce potential hazards. Resource Report 10 must:
    (1) Describe measures proposed to protect the public from failure 
of the proposed facilities (including coordination with local 
agencies).
    (2) Discuss hazards, the environmental impact, and service 
interruptions which could reasonably ensue from failure of the proposed 
facilities.
    (3) Discuss design and operational measures to avoid or reduce 
risk.
    (4) Discuss contingency plans for maintaining service or reducing 
downtime.
    (5) Describe measures used to exclude the public from hazardous 
areas. Discuss measures used to minimize problems arising from 
malfunctions and accidents (with estimates of probability of 
occurrence) and identify standard procedures for protecting services 
and public safety during maintenance and breakdowns.
    (6) Provide a description of the electromagnetic fields to be 
generated by the proposed transmission lines, including their strength 
and extent. Provide a depiction of the expected field compared to 
distance horizontally along the right-of-way under the conductors, and 
perpendicular to the centerline of the right-of-way laterally.
    (7) Discuss the potential for acoustic and electrical noise from 
electric and magnetic fields, including shadowing and reradiation, as 
they may affect health or communication systems along the transmission 
right-of-way. Indicate the noise level generated by the line in both dB 
and dBA scales and compare this to any known noise ordinances for the 
zoning districts through which the transmission line will pass.
    (8) Discuss the potential for induced or conducted currents along 
the transmission right-of-way from electric and magnetic fields.
    (m) Resource Report 11--Design and Engineering. This report 
consists of general design and engineering drawings of the principal 
project facilities described under Resource Report 1--General project 
description. If the version of this report submitted with the 
application is preliminary in nature, applicant must state that in the 
application. The drawings must conform to the specifications determined 
in the initial consultation meeting required by Sec.  50.5(b) of this 
chapter.
    (1) The drawings must show all major project structures in 
sufficient detail to provide a full understanding of the project 
including:
    (i) Plans (overhead view);
    (ii) Elevations (front view);
    (iii) Profiles (side view); and
    (iv) Sections.
    (2) The applicant may submit preliminary design drawings with the 
pre-filing documents or application. The final design drawings may be 
submitted during the construction permit process or after the 
Commission issues a permit and must show the precise plans and 
specifications for proposed structures. If a permit is granted on the 
basis of preliminary designs, the applicant must submit final design 
drawings for written approval by the Director of the Office of Energy 
Project's prior to commencement of any construction of the project.
    (3) Supporting design report. The applicant must submit, at a 
minimum, the following supporting information to demonstrate that 
existing and proposed structures are safe and adequate to fulfill their 
stated functions and must submit such information in a separate report 
at the time the application is filed:
    (i) An assessment of the suitability of the transmission line 
towers and appurtenant structures locations based on geological and 
subsurface investigations, including investigations of soils and rock 
borings and tests for the evaluation of all foundations and 
construction materials sufficient to determine the location and type of 
transmission line tower or appurtenant structures suitable for the 
site;
    (ii) Copies of boring logs, geology reports, and laboratory test 
reports;
    (iii) An identification of all borrow areas and quarry sites and an 
estimate of required quantities of suitable construction material;
    (iv) Stability and stress analyses for all major transmission 
structures and conductors under all probable loading conditions, 
including seismic, wind, and ice loading, as appropriate, in sufficient 
detail to permit independent staff evaluation.
    (4) The applicant must submit two copies of the supporting design 
report described in paragraph (m)(3) of this section at the time 
preliminary and final design drawings are filed. If the report contains 
preliminary drawings, it must be designated a ``Preliminary Supporting 
Design Report.''

    Note: The following Appendix will not be published in the Code 
of Federal Regulations.

Appendix--List of Commenters

Affiliated Tribes of Northwest Indians
Allegheny Power
American Electric Power Service Corp.
American Public Power Association
American Transmission Co.
California Public Utilities Commission
California Resources Agency
Center for Biological Diversity
Communities Against Regional Interconnect
Confederate Tribes of the Warm Springs Reservation of Oregon
Edison Electric Institute
Imperial Irrigation District
Iowa Utilities Board
Kentucky Public Service Commission
Lackawaxen River Conservancy
Los Angeles Department of Water and Power
Massachusetts Energy and Facilities Siting Board
National Association of Regulatory Utility Commissioners
National Electric Manufacturers Association
National Grid USA
National Parks Conservation Association
National Rural Electric Cooperative Association

[[Page 69476]]

New Jersey Board of Public Utilities
New York Department of Public Service
New York Independent System Operator
New York State Senator Wright
Northern Wasco Peoples Utility District
Old Dominion Electric Cooperative
Pacific Gas and Electric Co.
Pennsylvania Public Utilities Commission
PEPCO Holdings, Potomac Electric Power Co., Delmarva Power & Light 
Co., and Atlantic City Electric Co.
PPL Electric Utilities Corp.
Progress Energy
PSEG Companies
Public Service Commission of Wisconsin
Reinhardt, Laura and John
San Diego Gas & Electric
Sayward, Mazur
Seattle City Light
Southern California Edison Co.
Southern Company Services
Star Group
The Wilderness Society
U.S. Department of the Interior
Virginia Electric and Power Co.
Virginia Farm Bureau Federation
Washington Energy Facility Site Evaluation Council
Western Governor's Association
Western Interstate Energy Board and Committee on Regional Electric 
Power
Cooperation
White Mountain Apache Tribe
Wyoming Infrastructure Authority

KELLY, Commissioner, dissenting in part:

    Section 216(b)(1)(c)(i) of the Federal Power Act provides that 
the Commission may issue a permit for the construction of an 
electric transmission line if the State having the authority to site 
the line has
    (i) withheld approval for more than 1 year after the filing of 
an application seeking approval pursuant to applicable law or 1 year 
after the designation of the relevant national interest electric 
corridor, whichever is later.
    The majority finds that this language also means that the 
Commission can issue a permit for the construction of an electric 
transmission line if the State has denied the permit application. I 
believe the majority's interpretation flies in the face of the plain 
language of the statute, the purposes of the statute, well-
established principles of statutory interpretation and supporting 
case law, and inappropriately preempts the States in the process.
    When interpreting a statute, there is an understanding that 
Congress says what it means and means what it says therefore, the 
court will first determine whether the language at issue has a plain 
and unambiguous meaning.\42\ To that end, words will be interpreted 
as taking their ordinary, contemporary, common meaning.\43\
---------------------------------------------------------------------------

    \42\ Hartford Underwriters Ins. Co. v. Union Planters Bank, 
N.A., 120 S.Ct. 1942, 1947 (2000).
    \43\ Perrin v. United States, 444 U.S. 37, 42 (1979).
---------------------------------------------------------------------------

    The word ``withhold'' is variously defined as ``to refrain from 
giving, granting, or permitting'' (American Heritage Dictionary), 
``to hold back . . . keep from action--to desist or refrain from 
granting, giving, or allowing'' (Webster's Dictionary), and ``to 
omit to disclose upon request; as, to withhold information'' 
(Black's Law Dictionary). In my view, it defies common sense to 
insert the concept of ``reject'' or ``deny'' into this universally 
acknowledged definition.
    Moreover statutory provisions must be read in context.\44\ The 
language at issue here is not, as the majority asserts, ``withheld 
approval.'' Rather, it is ``withheld approval for more than 1 year 
after the filing of an application.'' When ``withheld approval'' is 
read in its appropriate context, it simply cannot mean ``deny,'' 
because otherwise the provision must be read to mean that the 
Commission would have jurisdiction when a state has ``denied 
approval for more than 1 year after the filing of an application.'' 
This reading is nonsensical; yet to read it as the majority does 
would render the phrase ``for more than one year'' superfluous. As 
noted in Cooper Industries, Inc. Aviall Services--the very opinion 
the majority cites for the notion that it must give every word in a 
statute some operative effect--any reading that would render part of 
a statute entirely superfluous is something a court should be 
``loath to do.'' \45\
---------------------------------------------------------------------------

    \44\ Bailey v. United States, 516 U.S. 137, 145 (1995).
    \45\ Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 
157 (2004).
---------------------------------------------------------------------------

    States have always had exclusive, plenary jurisdiction over 
transmission siting.\46\ In 2005, Congress passed EPAct, which, for 
the first time, carefully carves out a limited role for the federal 
government in the area of transmission siting. EPAct amended the FPA 
to give the Commission the authority to site electric transmission 
facilities in five specific situations.\47\ The majority's 
interpretation of Section 216(b)(1)(C)(i) would add a sixth 
situation: The Commission would have jurisdiction to approve the 
siting of a transmission line pursuant to federal law where the 
State has lawfully denied an application pursuant to state law.
---------------------------------------------------------------------------

    \46\ FPA section 201(a) confers to the Commission jurisdiction 
over the transmission of electric energy in interstate commerce and 
the sale of such energy at wholesale in interstate commerce, and 
notes that such regulation extends ``only to those matters which are 
not subject to regulation by the States.'' See also New York v. 
FERC, 535 U.S. 1, 24 (2002) (``FERC has recognized that the States 
retain significant control over local matters''), citing Order No. 
888 at 31,782 & n. 543, FERC Stats. & Regs., Regs. Preamble, Jan. 
1991-June 1996, ] 31,036, 31,632, 61 Fed. Reg. 21540 (1996) (``Among 
other things, Congress left to the States authority to regulate 
generation and transmission siting'').
    \47\ See Section 216(b)(1) subsections (A)(i), (A)(ii), B, 
(C)(i), (C)(ii).
---------------------------------------------------------------------------

    The authority to lawfully deny a permit is critically important 
to the States for ensuring that the interests of local communities 
and their citizens are protected. What the Commission does today is 
a significant inroad into traditional state transmission siting 
authority. It gives states two options: Either issue a permit, or 
we'll do it for them. Obviously this is no choice. This is 
preemption.
    Courts ``have long presumed that Congress does not cavalierly 
pre-empt'' state law.\48\ Indeed, courts should not find federal 
pre-emption ``in the absence of persuasive reasons--either that the 
nature of the regulated subject matter permits no other conclusion, 
or that the Congress has unmistakably so ordained.'' \49\ In short, 
courts must start with the ``basic assumption that Congress did not 
intend to displace state law.'' \50\
---------------------------------------------------------------------------

    \48\ Meditronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).
    \49\ Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 
142 (1963); See also Gregory v. Ashcroft, 501 U.S. 452 (1991) (for a 
court to find federal pre-emption, it must be ``unmistakably clear'' 
that Congress intended to do so).
    \50\ Building & Construction Trades Council v. Associated 
Builders, 507 U.S. 218 (1993).
---------------------------------------------------------------------------

    There is no evidence to counter this ``presumption against pre-
emption.'' To the contrary, I find it inconceivable that Congress 
would have specifically listed in section 216(b)(1) a number of 
circumstances that will trigger Commission jurisdiction, yet fail to 
include on that list denial of a permit. If Congress had intended to 
take away the States' authority to lawfully deny a permit, surely it 
would have said so in unmistakable terms.
    Like me, I suspect that many will be surprised by the majority's 
interpretation. The Commission received 51 letters commenting on the 
proposed rule, including many that delved into minute details of the 
rule. Yet, no one opined, let alone argued, that the Commission has 
jurisdiction if a State denies a permit.
    Indeed, there is evidence beyond the plain meaning of the 
statute that Congress did not intend to give the Commission the 
authority to override a State's denial of a permit application. In 
Section 216(b)(1)(A)(ii), Congress told the States that they cannot 
retain jurisdiction to site transmission facilities unless they have 
the authority to ``consider the interstate benefits expected to be 
achieved by the proposed construction or modification of 
transmission facilities in the State.'' It makes little sense that 
Congress would have said, on the one hand, the State has the 
authority to review a permit application if it takes these factors 
into account, but on the other hand, it doesn't really matter if the 
State takes these factors into account because if the State doesn't 
approve the permit, it loses jurisdiction to the Commission.
    I realize that the majority is concerned that the goal of 
Section 216 to encourage the construction of transmission facilities 
may be frustrated if our backstop authority does not extend to 
denials of permits. However, I believe that States, as well as 
applicants, will act in good faith in processing requests for 
permits. Moreover, as noted above, Congress included the requirement 
that States must have the authority to consider the interstate 
benefits of applicants' proposals. Accordingly, States will be 
required to look beyond their borders in considering whether to 
approve or deny permit applications. If a State does not adequately 
take these benefits into account and denies the permit application, 
then applicants will have a remedy in court.
    For these reasons, I respectfully dissent.
    ------------------------------
    Suedeen G. Kelly

 [FR Doc. E6-20001 Filed 11-30-06; 8:45 am]
BILLING CODE 6717-01-P