[Federal Register Volume 76, Number 239 (Tuesday, December 13, 2011)]
[Proposed Rules]
[Pages 77432-77442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31759]


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

DEPARTMENT OF ENERGY

10 CFR Part 900

RIN 1901-AB18


Coordination of Federal Authorizations for Electric Transmission 
Facilities

AGENCY: Office of Electricity Delivery and Energy Reliability, 
Department of Energy.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Department of Energy (DOE) proposes to amend its 
regulations for the timely coordination of Federal authorizations for 
proposed interstate electric transmission facilities pursuant to 
section 216(h) of the Federal Power Act (FPA). The proposed rule would 
require permitting entities to inform DOE of requests for 
authorizations required under Federal law for Qualifying Projects as 
defined in the rule, as well as establish a process whereby applicants 
for Federal authorizations for interstate electric transmission 
facilities that are not Qualifying Projects can request DOE assistance 
in the Federal authorization process. Also, the proposed rule provides 
for the selection of a Federal Lead Agency responsible for compiling a 
single environmental review document, and a consolidated administrative 
record, for Qualifying Projects. In addition, the proposed rule 
provides for the establishment of intermediate and final deadlines for 
the review of Federal authorization decisions, as well as establishing 
a date certain after which all permit decisions and related 
environmental reviews under all applicable Federal laws shall be 
completed within one year, or as soon thereafter as practicable in 
compliance with Federal law.

DATES: Public comment on this proposed rule will be accepted until 
January 27, 2012.

ADDRESSES: Interested persons are encouraged to submit comments, 
identified by ``Proposed 216(h) Regulations,'' by any of the following 
methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Email: [email protected]. Include ``Proposed 216(h) 
Regulations'' in the subject line of the message.
    Mail: Brian Mills, Office of Electricity Delivery and Energy 
Reliability (OE-20), U.S. Department of Energy, 1000 Independence 
Avenue SW., Washington, DC 20585.

FOR FURTHER INFORMATION CONTACT: Brian Mills, Office of Electricity 
Delivery and Energy Reliability (OE-20), U.S. Department of Energy, 
1000 Independence Avenue SW., Washington, DC 20585, Phone (202) 586-
8267, email [email protected], or Lot Cooke, Attorney-Advisor, 
U.S. Department of Energy, Office of the General Counsel, GC-76, 1000 
Independence Avenue SW., Washington, DC 20585, Phone (202) 586-0503, 
email [email protected].

SUPPLEMENTARY INFORMATION:

I. Background
    A. Statutory Authority and Rulemaking History
    B. Interpretation of Key Terms
II. Discussion of Proposed Rule
    A. Purpose
    B. Applicability
    C. Definitions
    D. Pre-Application Procedures
    E. Notification of Requests for Federal Authorizations for 
Qualifying Projects and Requests for DOE Assistance in the Federal 
Authorization Process
    F. Selection of Lead Agency, and Coordination of Permitting and 
Related Environmental Reviews
    G. Lead Agency Responsibilities
    H. Cooperating Agencies Responsibilities
    I. DOE Responsibilities
    J. Prompt and Binding Intermediate Milestones and Ultimate 
Deadlines
    K. Deadlines for Final Decisions on Federal Authorization 
Requests
III. Regulatory Review
IV. Approval of the Office of the Secretary

I. Background

A. Statutory Authority and Rulemaking History

    Section 1221(a) of the Energy Policy Act of 2005 (Pub. L. 109-58) 
(EPAct05) added a new section 216 to the FPA (16 U.S.C. 791-828c) which 
deals with the siting of interstate electric transmission facilities. 
Section 216(h) of the FPA (16 U.S.C. 824p(h)), which is titled 
``Coordination of Federal Authorizations for Transmission Facilities,'' 
provides for DOE to coordinate all applicable Federal authorizations 
for the siting of interstate electric transmission facilities and 
related environmental reviews.
    Section 216(h) of the FPA provides for the coordination of Federal 
transmission siting determinations for entities seeking permits, 
special use authorizations, certifications, opinions, or other 
approvals required under Federal law to site electric transmission 
facilities. This coordination avoids duplicative review processes by 
various Federal agencies. In addition, section 216(h) also provides 
that Indian tribes, multi-State entities, and State agencies that have 
their own separate permitting and environmental reviews can

[[Page 77433]]

participate in the coordinated Federal review process if they so 
choose.
    On October 23, 2009, nine Federal agencies with permitting or other 
Federal authorization responsibility for the siting of electric 
transmission facilities entered into a ``Memorandum of Understanding 
Regarding Coordination in Federal Agency Review of Electric 
Transmission Facilities on Federal Land'' (2009 MOU).\1\ The 
signatories to the 2009 MOU were DOE, the Departments of Defense, 
Agriculture (USDA), the Interior (DOI), and Commerce, the Federal 
Energy Regulatory Commission (FERC), the Environmental Protection 
Agency, the Council on Environmental Quality, and the Advisory Council 
on Historic Preservation. The purpose of the 2009 MOU is to establish a 
framework for early cooperation and participation among the signatories 
that will: (1) Expedite the siting and construction of qualified 
electric transmission infrastructure in the United States; (2) improve 
coordination among Federal authorization applicants, Federal agencies, 
and states and tribes involved in the siting and permitting process; 
and (3) improve uniformity, consistency, and transparency by setting 
forth the roles and responsibilities of Federal agencies in the siting 
and construction of qualifying projects.
---------------------------------------------------------------------------

    \1\ The MOU is available at http://www.oe.energy.gov/668.htm. 
The 2009 MOU superseded an August 8, 2006 MOU pertaining to FPA 
section 216(h) coordination and signed by the same Federal agencies.
---------------------------------------------------------------------------

    On September 19, 2008, DOE published an interim final rule 
establishing procedures under which entities may request that DOE 
coordinate Federal authorizations for the siting of interstate electric 
transmission facilities and related environmental reviews pursuant to 
FPA section 216(h) (73 FR 54456). The interim final rule became 
effective on October 20, 2008, and the regulations can be found at 10 
CFR 900.1-900.6. Also on September 19, 2008, DOE published a notice of 
proposed rulemaking (NOPR) which proposed amendments to the interim 
final rule (73 FR 54461). This proposed rule would amend the interim 
final rule and replaces the 2008 NOPR. These proposed regulations, 
subject to revisions based on comments received in response to this 
NOPR, and in conjunction with the 2009 MOU, would govern DOE's 
coordination of electric transmission facilities permitting requests 
under section 216(h) of the FPA.
    Comments were filed in response to the 2008 interim final rule and 
2008 NOPR.\2\ In Section II of today's NOPR, DOE addresses the comments 
submitted in response to both the interim final rule and the 2008 NOPR. 
All references to comments in this NOPR are to comments filed in 
response to the 2008 interim final rule and 2008 NOPR.
---------------------------------------------------------------------------

    \2\ Comments on the interim final rule were filed by the 
Allegheny Energy Companies (Allegheny), the Public Utility 
Commission of the State of California, the American Transmission 
Company LLC, the utility companies of the American Electric Power 
System Southern California Edison Company, and the Western Business 
Roundtable. Edison Electric Institute filed consolidated comments on 
the interim final rule and the NOPR, and Allegheny filed separate 
comments on the NOPR.
---------------------------------------------------------------------------

B. Interpretation of Key Terms

    Under FPA section 216(h)(2), DOE is required to ``act as the lead 
agency for purposes of coordinating all applicable Federal 
authorizations and related environmental reviews'' (emphasis added). 
DOE interprets the term ``lead agency'' as used in FPA section 
216(h)(2) as requiring DOE to coordinate the necessary environmental 
reviews conducted by other Federal agencies and to ensure that one 
Federal agency is responsible for preparing a uniform environmental 
review document. Therefore, DOE would coordinate the selection of a 
Lead Agency. The selection would be based on land management interests 
or the recommendations of other participating agencies. The Lead Agency 
would prepare the environmental review under the National Environmental 
Policy Act (NEPA). Consistent with the 2009 MOU and in accordance with 
NEPA regulations issued by the Council on Environmental Quality at 40 
CFR part 1500 et seq., this proposal would ensure that the agency with 
the most relevant subject matter expertise conducts the required 
environmental reviews. In those circumstances where DOE has a 
permitting role (e.g., international transmission lines, transmission 
lines built by the Power Marketing Administrations (PMAs)), DOE may be 
the Lead Agency for preparing the NEPA compliance document and other 
environmental, cultural, and historic preservation reviews. For all 
other types of transmission projects in which DOE has no permitting 
role, however, DOE will work with the permitting entities responsible 
for issuing Federal authorizations in coordinating the selection of the 
appropriate permitting entity to be the Lead Agency for preparing NEPA 
compliance documents in accordance with the 2009 MOU, 40 CFR part 1500 
et seq., and these proposed regulations.
    DOE believes that its coordination responsibilities set forth in 
section 216(h) are intended to give an applicant seeking one or more 
Federal authorizations for the construction or modification of electric 
transmission facilities access to a process under which all Federal 
reviews are made in an efficient and coordinated manner. The NOPR also 
provides a discretionary process for applicants seeking only one 
authorization to ask for DOE assistance. In the 2008 interim final 
rule, DOE determined that its coordination of Federal authorizations 
would be most beneficial as a request driven process. In a request 
driven process, DOE would provide coordination only in circumstances 
where an applicant for Federal authorizations determined that it would 
be beneficial for DOE to perform that role.
    The parties to the 2009 MOU determined, however, that there should 
be a mechanism for Federal coordination, and the selection of a Lead 
Agency for all Qualifying Projects, without the need for an applicant 
to request coordination. This would place the responsibility to 
undertake the coordination process on the Federal authorizing agencies 
and ensure that coordination takes place as intended by the statute. 
The 2009 MOU defines Qualifying Projects as ``high voltage transmission 
line projects (generally 230 kV or above), and their attendant 
facilities, or otherwise regionally or nationally significant 
transmission lines and their attendant facilities, in which all or part 
of a proposed transmission line crosses jurisdictions administered by 
more than one Participating Agency.'' This proposed rule would codify 
the 2009 MOU coordination process for Qualifying Projects, and, in 
addition, provide for the discretionary coordination of Federal 
authorizations for projects other than Qualifying Projects.
    DOE, in coordination with other participating agencies, has 
established a transmission tracking system Web site: http://www.doe-etrans.us. The Web site includes Qualifying Projects, as well as 
projects that are not Qualifying Projects, under the MOU or these 
proposed regulations. For example, the Web site lists the application 
of Garkane Energy to the Forest Service for authorization to construct 
a 138 kV line. All other projects currently listed on the Web site are 
Qualifying Projects.

II. Discussion of Proposed Rule

A. Purpose

    Section 900.1 states the purpose of the regulations, which is to 
provide a

[[Page 77434]]

process for the timely coordination of Federal authorizations for 
proposed transmission facilities pursuant to FPA section 216(h).

B. Applicability

    Section 900.2 of the proposed rule explains when the provisions of 
Part 900 would apply to the coordination of Federal authorizations. The 
provisions of Part 900 would apply to Qualifying Projects, and would 
also apply to Other Projects at the discretion of the Director of 
Permitting and Siting within DOE's Office of Electricity Delivery and 
Energy Reliability. Both types of projects must be for transmission 
facilities that are used for the transmission of electric energy in 
interstate commerce, but Qualifying Projects are generally 230 kV or 
above and cross jurisdictions administered by more than one 
Participating Agency.
    Further, there would be no coordination of Federal authorizations 
for electric transmission facilities located within the Electric 
Reliability Council of Texas (ERCOT) interconnection because section 
216(k) of the FPA states that section 216 of the FPA shall not apply 
within the ERCOT area (16 U.S.C. 824p(k)). Section 900.2 also provides 
that section 216(h) does not apply when an application has been 
submitted to FERC for issuance of a permit for construction or 
modification of a transmission facility, or a pre-filing procedure has 
been initiated, under section 216(b) of the FPA (16 U.S.C. 824p(b)) 
(transmission lines within a DOE-designated National Interest Electric 
Transmission Corridor). In those circumstances, DOE has delegated its 
section 216(h) coordination authority to FERC \3\ and, in Order No. 
689, FERC adopted regulations setting forth the procedures it will 
follow in such circumstances. Furthermore, the MOU does not apply to 
transmission lines that cross the U.S. international border, Federal 
submerged lands, national marine sanctuaries, or facilities constructed 
by PMAs.\4\
---------------------------------------------------------------------------

    \3\ Department of Energy Delegation Order No. 00-004-00A, 
section 1.22, issued May 16. 2006.
    \4\ DOE does not consider applications to the PMAs for 
transmission interconnections to be Federal authorization request 
within the meaning of 216(h). In those circumstances the PMAs are 
not functioning as Federal agencies considering requests for 
permits, special use authorizations, certifications, opinions, or 
other approvals, but are acting in their capacity as transmitting 
utilities. Moreover, section 216(h) specifically provides that 
nothing in it affects any requirements of U.S. environmental laws, 
and this exemption does not waive any requirements to obtain 
necessary Federal authorizations for electric transmission 
facilities.
---------------------------------------------------------------------------

Comments
    Edison Electric Institute (EEI) requested that ``DOE delete this 
limitation (to transmission in interstate commerce), or at a minimum * 
* * indicate that this will not be a substantial hurdle to DOE 
exercising lead-agency authority.'' The Public Utilities Commission of 
the State of California (CPUC) and the Western Business Roundtable 
(Roundtable) also expressed concerns with this limitation.
DOE Response
    This limitation on the applicability of the regulations is 
consistent with the intent of section 216 of the FPA, which is titled 
``Siting of Interstate Electric Transmission Facilities,'' and is 
consistent with the definition of transmission facilities used by FERC 
in Order No. 689 (regulations regarding application for permits to site 
electric transmission facilities issued under section 216 of the 
FPA).\5\ This limitation, however, does not restrict the Federal 
authorization coordination process only to electric transmission 
facilities that cross state lines. The facility need only be for the 
transmission and sale at wholesale of electricity in interstate 
commerce. This distinction is consistent with the general division of 
Federal and State authority found in the FPA, with Federal authority 
over interstate transmission and wholesale sales and State authority 
over distribution.
---------------------------------------------------------------------------

    \5\ Establishing Regulations for Filing Applications for Permits 
to Site Interstate Electric Transmission Facilities, Order No. 689, 
71 FR 69,440 (December 1, 2006), FERC Stats. & Regs. ] 31,234.
---------------------------------------------------------------------------

Comments
    EEI expressed concern with DOE's determination that the rule is not 
applicable if a pre-filing procedure pursuant to FERC Order No. 689 has 
been initiated. EEI pointed out that DOE's delegation of its FPA 216(h) 
coordination authority to FERC applies only after an application for 
siting an electric transmission facility has been filed with FERC, not 
when the FERC pre-filing process starts. Also, EEI stated that in a 
situation where the Federal authorization coordinating process has 
begun prior to an application for siting before FERC, DOE needs to 
ensure a smooth transition of lead agency authority to FERC. In 
comments on the interim final rule, the CPUC commented that it did not 
oppose this determination because FERC has set forth the procedure that 
it will follow in such circumstances.
DOE Response
    Under FERC Order No. 689, a major portion of the environmental 
review will be started and undertaken during FERC's pre-filing process. 
In addition, FERC intends that permitting entities be included in this 
process. Therefore, it would be duplicative for DOE to simultaneously 
engage in an FPA 216(h) coordination process for the same electric 
transmission facilities.

C. Definitions

    Section 900.3 would provide definitions applicable to these 
regulations.

D. Pre-Application Procedures

    Section 900.4(a) would implement section 216(h)(4)(C) of the FPA. 
Section 900.4(b) would codify procedures provided for in the 2009 MOU. 
It would require permitting entities contacted by prospective 
applicants for Federal authorization to site electric transmission 
facilities to notify participating agencies of Qualifying Projects and 
facilitate a pre-application meeting for prospective applicants and 
relevant Federal and state agencies and Tribes to communicate key 
issues of concern, explain applicable processes, outline data 
requirements and applicant submissions necessary to complete the 
required Federal agency reviews in a timely manner, and to establish 
schedules. The section 900.4(a) pre-application mechanism is required 
by statute and involves a submission of a request by a prospective 
applicant, while section 900.4(b) codifies a responsibility undertaken 
by the Participating Agencies in the 2009 MOU.
Comments
    Regarding the pre-application mechanism provided for in section 
900.4 of the 2008 interim final rule, Allegheny Energy Companies 
(Allegheny) commented that:

    First, the request for information must originate from an 
applicant or prospective applicant and be directed to a ``permitting 
entity; with notice to DOE of the request. Second, requests are 
required to ``specify in sufficient detail the information sought 
from the permitting entity and shall contain sufficient information 
for the permitting entity to provide the requested information.'' 
Third, the permitting agency has 60 days from receipt of the 
information request to provide, ``to the extent permissible under 
existing law,'' information concerning the request to the applicant 
or prospective applicant, and DOE. Notably, DOE's pre-application 
mechanism does not include any explicit mention of the two specific 
categories of information noted in FPA, section 216(h)--key issues 
of concern and the

[[Page 77435]]

likelihood of approval for a potential facility. Rather, the 
proposed pre-application section merely makes a passing reference to 
requests for information pursuant to section 216(h)(4)(C). 
(Footnotes omitted.)

Allegheny contended that ``as drafted, proposed section 900.4 
frustrates the clear purpose of FPA, section 216(h)(4),'' and provided 
suggested substitute language for that provision of the regulations. 
Allegheny also suggested adding language to the effect that ``agencies 
must ensure that they do not make any pre-decisional commitments 
regarding their future consideration of a permit application or 
authorization request.''
DOE Response
    DOE does not believe that section 900.4, as drafted in the 2008 
interim final rule, would frustrate the purpose of FPA section 
216(h)(4). FPA section 216(h)(4) directs DOE to provide ``an 
expeditious pre-application mechanism for prospective applicants to 
confer with the agencies involved * * *.'' Section 900.4(a) of this 
NOPR would provide such a mechanism. To address Allegheny's comment, 
however, the proposed rule includes the statutory specifications that a 
permitting or potential permitting entity should provide information 
concerning the likelihood of approval for a potential facility and key 
issues of concern to the agency and public, while stating that the 
provision of such information does not constitute a commitment by the 
permitting entity to approve or disapprove the Federal authorization 
request.
    DOE retained the language requiring persons requesting information 
from a Federal agency pursuant to FPA section 216(h)(4)(C) to supply 
sufficient details to allow the agency to provide the information 
requested. A permitting entity cannot provide answers to the questions 
posed in FPA section 216(h)(4) without knowing the nature and the scope 
of the facilities to which the information request pertains. DOE will 
work with persons seeking information under section 900.4(a) and 
permitting entities to ensure the pre-application mechanism functions 
properly.
    In addition, DOE retained the ``to the extent permissible under 
existing law'' language. We also included language in section 
900.4(a)(4) specifying that information given to an applicant shall not 
constitute a commitment by the permitting entity to approve or 
disapprove any Federal authorization request.

E. Notification of Requests for Federal Authorizations and Requests for 
DOE Assistance in the Federal Authorization Process

    Section 900.5 of the proposed rule would require a permitting 
entity contacted regarding, or in receipt of, an application for a 
Federal authorization for a Qualifying Project to inform the DOE's 
Director of Permitting and Siting in the Office of Electricity Delivery 
and Energy Reliability (Director) within ten working days of being 
contacted or of receipt of an application. In addition, persons seeking 
Federal authorizations for projects that are not Qualifying Projects 
can file written requests to DOE for assistance in the Federal 
authorization process.
Comments
    Based on the 2008 NOPR, Allegheny recommended that the rule be 
changed to require permitting entities to notify DOE within one week of 
receiving the application for a Federal authorization if the project 
is: (1) Equal or greater than 230 kV; (2) reasonably likely to require 
an EIS; or (3) reasonably likely to require more than one Federal 
authorization. Allegheny's recommendation was based on language in the 
superseded 2006 MOU. EEI urged ``DOE to require notification from a 
federal authorizer any time an application for a permit is filed, not 
just for those projects that will require an EIS.''
DOE Response
    In response to Allegheny's comment, the proposal that DOE be 
notified within 10 days of all proposals for qualifying projects is 
consistent with the 2009 MOU, and DOE does not believe that the 
additional few days would make a significant difference in the review 
process for an application. In response to EEI's comments, DOE notes 
that Federal authorizing agencies informed DOE that there are thousands 
of Federal authorization requests each year. For example, the Army 
Corps of Engineers authorizes over 60,000 projects under section 404 of 
the Clean Water Act and Section 10 of the Rivers and Harbors Act 
annually. Thus, requiring by rule that Federal authorizing agencies 
inform DOE of every request for a Federal authorization would be overly 
burdensome. Moreover, persons proposing to construct an electric 
transmission facility that is not a Qualifying Project can utilize the 
procedure in section 900.5(b) of the NOPR to request DOE assistance in 
the Federal authorization process.

F. Selection of Lead Agency and Coordination of Permitting and Related 
Environmental Reviews

    Section 900.6(a) provides, consistent with the process agreed to in 
the 2009 MOU, that DOE will coordinate the selection of a Lead Agency 
responsible for compiling a single environmental review document and 
consolidated administrative record for Qualifying Projects. For 
Qualifying Projects that cross DOI administered lands (including trust 
or restricted Indian lands) or USDA administered lands, the DOI and 
USDA would consult and jointly determine: (1) Whether a sufficient land 
management interest exists to support their assumption of the Lead 
Agency role and (2) if so, which of the two agencies should assume that 
role. The DOI and USDA would notify DOE of their determination in 
writing or electronically. Unless DOE in writing or electronically 
notifies DOI and USDA of its objection to such determination within two 
business days, such determination is deemed accepted. When the Lead 
Agency is not established as described above, the relevant 
participating agencies will consult and jointly determine a lead agency 
within 20 days after determining that a proposal is a Qualifying 
Project. The agencies will notify DOE of their determination in writing 
or electronically. Unless DOE in writing or electronically notifies 
those participating agencies of its objection within two business days, 
such determination is deemed accepted.
    In addition, section 900.6(b) provides that for projects that are 
not Qualifying Projects (defined in section 900.3 as Other Projects), 
an applicant can request the Director to assist it in the Federal 
authorization process, and the Director may do so at the Director's 
discretion. If DOE decides to provide authorization assistance, DOE 
will work with the Federal authorizer(s) to determine a Lead Agency.
    Finally, section 900.6(c) states that non-Federal entities that 
have their own separate non-Federal permitting and environmental 
reviews may elect to participate in the coordination process under this 
section, including becoming cooperating agencies.
Comments
    In the preamble to the 2008 interim final rule, DOE stated that in 
its view section 216(h) is intended to give an applicant seeking more 
than one Federal authorization for the construction or modification of 
electric transmission facilities access to a process under which all 
Federal reviews are made in

[[Page 77436]]

an efficient and coordinated manner. This view is consistent with the 
definition of a Qualifying Project contained in this NOPR. EEI and 
Roundtable urged DOE to reconsider this language. Roundtable stated: 
``Applicants should not be precluded from having DOE serve as lead 
agency merely because only one federal permitting entity is involved.''
DOE Response
    FPA section 216(h)(2) states that DOE ``shall act as the lead 
agency for purposes of coordinating all applicable Federal 
authorizations and related environmental reviews of the facility.'' DOE 
believes that its coordination role is best served for projects where 
more than one permitting entity is involved. Hence, it defined 
Qualifying Project as a project where the transmission line crosses 
jurisdictions administered by more than one participating agency. 
However, the definition of Other Projects in this NOPR provides an 
opportunity for an applicant to request DOE coordination for a project 
that only involves a single permitting entity.
Comments
    Several commenters questioned DOE's determination that the term 
``lead agency,'' as used in FPA section 216(h) makes the Department 
responsible for being the lead coordinating agency for environmental 
reviews, not the lead agency for preparing the environmental review 
under NEPA. EEI contented that ``the Department's statement in the 
preamble to the interim rule that the term `lead agency' in section 
216(h) means it is `lead coordinating agency for environmental reviews, 
not the lead agency for preparing the environmental review under the 
National Environmental Policy Act,' is an incorrect interpretation of 
what the statute requires,'' and that ``the designation of the 
Department as the `lead agency' clearly indicates that the Department's 
role under section 216(h) encompasses preparation of an environmental 
review document for the purposes of NEPA compliance.'' SCE stated that 
``DOE was expressly charged by Congress with acting as the lead agency 
under the National Environmental Protection (sic) Act (``NEPA'') for 
conducting all of the necessary reviews required for Federal 
authorizations associated with the construction of transmission project 
on Federal lands.'' AEP commented:

    DOE interprets the requirement to prepare a consolidated 
environmental review document as merely requiring it to assemble the 
work of individual agencies and maintain the information available 
to be used--a clearing house function. AEP urges the DOE to 
establish a single environmental review document for electric 
transmission siting. Establishment of such a document for electric 
transmission siting will simplify the application process and 
eliminate the need to submit duplicate information to multiple state 
and Federal agencies.

In addition, AEP stated:

    In order for the single environmental review document to be 
effective at accelerating the approval process and eliminating 
duplication, it would also be helpful for DOE to create a 
comprehensive schedule for participating agencies. To accomplish 
this, the DOE should clearly define the roles that various entities 
will play within the approval process. This approval process could 
identify opportunities to expedite the process, such as 
opportunities to conduct joint public comment periods and public 
hearings when multiple agencies must consider the same or similar 
issues.

On the other hand, CPUC supported the rule's provision that DOE and the 
permitting entities responsible for issuing Federal authorizations will 
jointly decide the appropriate lead agency for NEPA purposes, but asked 
clarification of when DOE itself would be the lead agency.
DOE Response
    Section 216(h)(2) requires DOE to act as the lead agency for the 
purposes of coordinating all applicable Federal authorizations and 
related environmental reviews of a facility. The phrase ``for the 
purposes of coordination'' of environmental reviews limits DOE's 
responsibility to coordination and does not require DOE to compile the 
environmental review document. It would be inefficient for DOE, rather 
than the agency with the most significant land management interests 
related to a Qualifying Project and with the most relevant subject 
matter expertise, to compile the document, particularly in those cases 
where DOE has no permitting role.
    Consistent with the 2009 MOU, the proposed rule modifies the 2008 
interim final rule to clarify the process by which DOE will coordinate 
the selection of the lead agency for compiling a single environmental 
review document and a consolidated administrative record for qualifying 
projects.
    With respect to CPUC's request for clarification, DOE anticipates 
it will be the Lead Agency when an application for a Federal 
authorization has been submitted to DOE. DOE is responsible for 
authorizing exports of electricity under FPA section 202(e) (16 U.S.C. 
824a(e)), and issuing Presidential permits for the construction, 
operation, maintenance and connection of electric transmission 
facilities at the international border pursuant to Executive Order (EO) 
10485, as amended by EO 12038. Generally, when DOE is considering such 
Presidential permit applications it is the NEPA lead agency and 
anticipates that it will continue to be the Lead Agency under those 
circumstances. Similarly, when applications are filed with one of the 
PMAs, the PMA is expected to be the NEPA lead agency.
    When DOE is not a permitting entity, however, the 2009 MOU provides 
a mechanism for DOE to coordinate the selection of a Lead Agency for 
qualifying projects. The selection will reflect the agency with the 
most significant land management interests related to a Qualifying 
Project, or the agency recommended by other participating agencies 
impacted by the project. This agency would be the Lead Agency for 
preparing NEPA compliance documents and other analyses required to 
comply with all environmental and cultural statutes and regulations 
under Federal law. This approach is consistent with FPA section 
216(h)(2), as explained above. Consistent with section 216(h)(5)(A), 
however, DOE clarifies that its role as coordinator for the Federal 
authorization process will be much broader and more involved than 
simply acting as a clearing house and repository for environmental 
compliance information. DOE will establish a central source of 
information about section 216(h) activities and provide for public 
access to the information available from participating and cooperating 
agencies, as well as a schedule for each qualifying project. The Web 
site will be accessible through http://www.oe.energy.gov/Fed_transmission.htm. DOE also intends to be actively engaged in the 
coordination of Federal authorizations, including the establishment of 
timeframes for the submission of information, the scheduling of 
environmental scoping meetings, and appropriate milestones and 
deadlines.

G. Lead Agency Responsibilities

    Section 900.7 delineates the responsibilities of the lead agency 
under the rule. These tasks include: Establishing and implementing 
preapplication consultation procedures, consulting with cooperating 
agencies, establishing a schedule, preparing a unified environmental 
review document, maintaining a consolidated administrative record, and 
other responsibilities enumerated in the rule.
    In addition, section 900.7(i) provides that, to the extent 
practicable and consistent with Federal law, the Lead Agency may 
establish a procedure to

[[Page 77437]]

consolidate costs recoverable from the applicant to reimburse Federal 
agencies for costs incurred, issue bills for collection, and disburse 
funds to the appropriate Federal agencies.

H. Cooperating Agencies Responsibilities

    Section 900.8 delineates the responsibilities of cooperating 
agencies. DOE notes that section 900.8(g) provides that Cooperating 
Agencies may enter into an interagency agreement with the Lead Agency 
to allow for the recovery of appropriate costs, and that the 
Cooperating Agencies would be responsible for providing the Lead Agency 
an accounting of billable costs as a result of the application and 
permitting process. These last two sections were not included in the 
MOU but will facilitate the Federal authorization decisionmaking 
process.

I. DOE Responsibilities

    Section 900.9 provides DOE responsibilities under this part, 
including coordinating the selection of a Lead Agency, providing 
assistance to the Lead Agency and developing the public Web site.

J. Prompt and Binding Intermediate and Ultimate Deadlines

    Consistent with FPA section 216(h)(4)(A), section 900.10 provides 
for the lead agency, in consultation with DOE, the project applicant, 
other affected parties, and cooperating agencies to establish an 
efficient project schedule, including intermediate and ultimate 
deadlines for the review of Federal authorization applications and 
decisions relating to proposed electric transmission facilities.

K. Deadlines for Final Decisions on Federal Authorization Requests

    Consistent with FPA section 216(h)(4)(B), section 900.11 requires 
that all Federal permit decisions be completed in accordance with the 
following time-lines (unless another provision of Federal law does not 
permit a final decision within those timelines): (1) When a categorical 
exclusion or an environmental assessment (EA) and Finding of No 
Significant Impact (FONSI) is determined to be the appropriate level of 
review under NEPA, within one year of the categorical exclusion 
determination or publication of a FONSI; or (2) when an environmental 
impact statement (EIS) is required, one year and 30 days after the 
close of the public comment period for a Draft EIS.
    The 2009 MOU sets the deadline in those instances within one year 
of the acceptance of a completed application. While the 2009 MOU 
provision may seem to establish a shorter deadline then this NOPR, the 
deadline is imprecise because the MOU contains no definition of a 
``completed application.'' The language starting the one year deadline 
on the date of the NEPA determination is used in this proposed rule to 
establish a deadline that is easily determinable. DOE remains committed 
to working with the applicant and the lead and cooperating agencies to 
expedite the decision process, including final deadlines.
Comments
    EEI and Roundtable objected to the one-year deadline for the 
completion of all Federal authorizations contained in the 2008 NOPR, 
which was substantially the same as proposed in this rule. EEI stated 
that ``none of these proposed triggers for the one-year period to begin 
find any support in the text of the statute, and none is lawful.'' 
Roundtable stated:

    Under EPAct05, there is a one-year window for states to complete 
their decisions prior to an applicant approaching FERC for a 
construction permit and a one-year window for Federal agencies to 
complete their decisions once an application has been submitted with 
necessary data. These provisions parallel one another, supporting 
the view that Congress intended a concurrent approach to federal and 
state decision-making.
DOE Response
    Section 216(h)(4)(B) of the FPA provides that the Secretary of 
Energy shall ensure that once an application has been submitted with 
such data as the Secretary of Energy considers necessary, all permit 
decisions and related environmental reviews under Federal laws will be 
completed within one year or as soon thereafter as possible in 
compliance with Federal law. Roundtable compared this one year deadline 
to the one-year window for states to complete their decisions prior to 
an applicant applying to FERC for a construction permit under FPA 
section 216(b). DOE disagrees with Roundtable's comparison because FPA 
section 216(h)(4)(B) requires submission of an application ``with such 
data as the Secretary considers necessary.'' A permitting entity needs 
to have a completed, or substantially completed, environmental review 
before it can make a Federal authorization determination. Therefore, 
DOE has determined generally that permitting entities will have such 
data as the Secretary considers necessary one year after: (1) A 
determination by the permitting entity has been made that the Federal 
authorization is subject to a categorical exclusion, or an EA has been 
published which resulted in a FONSI; or (2) 30 days after the close of 
the comment period on the permitting entity's draft EIS. In addition, 
this determination is consistent with FERC Order No. 689, which 
contemplates a pre-filing period of a year, during which FERC will 
start its scoping and environmental review, before an application is 
filed and the FPA section 216(h)(4)(B) one year deadline begins to 
run.\6\ Moreover, these proposed section 900.11 deadlines trigger the 
FPA section 216(h)(6) Presidential appeal process, so it is important 
that the deadlines are clear and determinable by both applicants and 
permitting entities.
---------------------------------------------------------------------------

    \6\ Establishing Regulations for Filing Applications for Permits 
to Site Interstate Electric Transmission Facilities, Order No. 689, 
71 FR 69,440 (December 1, 2006), FERC Stats. & Regs. ] 31,234, at 
para. 47.
---------------------------------------------------------------------------

Comments
    EEI asked that DOE ``clarify that the one-year deadline applies not 
only to the record of decision but also to the issuance of the 
construction permit that allows dirt to be turned.''
DOE Response
    In response to the clarification requested by EEI, section 900.11 
states that the one-year deadline applies to all Federal authorizations 
or permits needed.
Comment
    EEI and Roundtable raised concerns about the ability of a 
permitting entity to extend the one-year deadline if a requirement in 
another provision of Federal law does not permit a final decision on 
the Federal authorization request within one year under section 900.9 
of the 2008 NOPR. EEI stated that ``this would allow a permitting 
agency to override the statutory one-year deadline with a cryptic one-
sentence reference to NEPA or some other statute, without offering any 
explanation as to why an extension of the deadline is legally 
necessary.'' Allegheny expressed similar concerns over parallel 
language in section 900.8 of the 2008 NOPR.
DOE Response
    Pursuant to the proposed rule, a permitting entity requesting 
extension of the one year deadline must inform the lead agency, 
cooperating agencies, the applicant, DOE and any other interested 
parties of the provision of Federal law that prevents the final 
decision on the Federal authorization request from being issued within 
one year of the deadline, an explanation of how the provision is 
applicable to the

[[Page 77438]]

permitting entity's Federal authorization determination and why the 
provision prevents the decision from being made within that time frame, 
and the date when the final decision on the authorization request can 
be issued in compliance with Federal law.

III. Regulatory Review

A. Review Under Executive Order 12866

    Today's regulatory action has been determined to be a ``significant 
regulatory action'' under Executive Order 12866, ``Regulatory Planning 
and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this action 
was subject to review under that Executive Order by the Office of 
Information and Regulatory Affairs of the Office of Management and 
Budget (OMB).

B. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of these regulations fall into 
the class of actions that does not individually or cumulatively have a 
significant impact on the human environment as set forth in DOE's 
regulations implementing the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.). Specifically, the rule is covered under the 
categorical exclusion in paragraph A6 of Appendix A to subpart D, 10 
CFR part 1021, which applies to rulemakings that are strictly 
procedural. Accordingly, neither an EA nor an EIS is required. 
Documentation of the use of this categorical exclusion has been 
completed and is available for review on DOE's Web site http://www.oe.energy.gov/1260.htm.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that 
an agency prepare an initial regulatory flexibility analysis for any 
regulation for which a notice of proposed rulemaking is required, 
unless the agency certifies that the rule, if promulgated, will not 
have a significant economic impact on a substantial number of small 
entities (5 U.S.C. 605(b)). This rule establishes procedures for DOE 
coordination of Federal authorizations for the siting of interstate 
electric transmission facilities. As a result, the rule directly 
impacts only Federal agencies and not any small entities. In those 
cases where an applicant requests DOE assistance for a project that is 
not a qualifying project, DOE expects that the provisions of this 
proposed rule, if adopted, would not affect the substantive interests 
of such applicants, including any applicants that are small entities. 
DOE expects that actions taken under these proposed provisions to 
coordinate and speed the issuance of decisions on requests for Federal 
authorizations would lessen the burden of applying for a Federal 
authorization on applicants, and that any applicant requesting DOE 
assistance has made the calculation that such a request was in the best 
interests of the applicant. On the basis of the foregoing, DOE 
certifies that this proposed rule would not have a significant economic 
impact on a substantial number of small entities. Accordingly, DOE has 
not prepared a regulatory flexibility analysis for this rulemaking. 
DOE's certification and supporting statement of factual basis will be 
provided to the Chief Counsel for Advocacy of the Small Business 
Administration pursuant to 5 U.S.C. 605(b).

D. Review Under the Paperwork Reduction Act

    This proposed rule contains a collection-of-information requirement 
subject to review and approval by OMB under the Paperwork Reduction Act 
(PRA). This requirement has been submitted to OMB for approval. Public 
reporting burden for requesting information during the pre-application 
process is estimated to average 30 minutes per response. Public 
reporting burden for requesting DOE assistance in the Federal 
authorization process is estimated to average one hour per response. 
Both of these burden estimates include the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to Brian 
Mills at the ADDRESSES above, and email to [email protected].
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

E. Review Under the Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written assessment of the 
effects of any Federal mandate in a proposed or final agency regulation 
that may result in the expenditure by States, Tribal or local 
governments, in the aggregate, or by the private sector, of $100 
million in any one year. The Act also requires a Federal agency to 
develop an effective process to permit timely input by elected 
officials of State, tribal or local governments on a proposed 
significant intergovernmental mandate, and requires an agency plan for 
giving notice and opportunity to provide timely input to potentially 
affected small governments before establishing any requirements that 
might significantly or uniquely affect small governments. DOE has 
determined that the proposed rule published today does not contain any 
Federal mandates affecting States, tribal, or local governments, or the 
private sector, so these requirements do not apply.

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform'' (61 FR 4779, February 7, 1996) imposes on 
Federal agencies the general duty to adhere to the following 
requirements: eliminate drafting errors and needless ambiguity, write 
regulations to minimize litigation, provide a clear legal standard for 
affected conduct rather than a general standard, and promote 
simplification and burden reduction. Section 3(b) requires Federal 
agencies to make every reasonable effort to ensure that a regulation, 
among other things: clearly specifies the preemptive effect, if any, 
adequately defines key terms, and addresses other important issues 
affecting the clarity and general draftsmanship under guidelines issued 
by the Attorney General. Section 3(c) of Executive Order 12988 requires 
executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, this proposed rule meets the relevant standards of 
Executive Order 12988.

[[Page 77439]]

G. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 10, 
1999) imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have Federalism implications. Agencies are required to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and carefully assess 
the necessity for such actions. DOE has examined this proposed rule and 
has determined that it would not preempt State law and would not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibility among the various levels of government. No further 
action is required by the executive order.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a 
``Family Policymaking Assessment'' for any rule that may affect family 
well-being. This rule has no impact on the autonomy or integrity of the 
family as an institution. Accordingly, DOE has concluded that it is not 
necessary to prepare a Family Policymaking Assessment.

I. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy, Supply, Distribution, or Use,'' 66 FR 
28355 (May 22, 2001) requires preparation and submission to OMB of a 
Statement of Energy Effects for significant regulatory actions under 
Executive Order 12866 that are likely to have a significant adverse 
effect on the supply, distribution, or use of energy. DOE has 
determined that the proposed rule published today does not have a 
significant adverse effect on the supply, distribution, or use of 
energy. The proposed rule has also not been designated as a significant 
energy action by the Administrator of the Office of Information and 
Regulatory Affairs. Therefore, the requirement to prepare a Statement 
of Energy Effects does not apply.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516 note) provides for agencies to review most dissemination of 
information to the public under guidelines established by each agency 
pursuant to general guidelines issued by OMB. OMB's guidelines were 
published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were 
published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed today's 
proposed rule under the OMB and DOE guidelines and has concluded that 
it is consistent with applicable policies in those guidelines.

IV. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this proposed 
rule.

List of Subjects in 10 CFR Part 900

    Electric power, Electric utilities, Energy, Reporting and 
recordkeeping requirements.

    Issued in Washington, DC on December 2, 2011.
Patricia A. Hoffman,
Assistant Secretary, Office of Electricity Delivery and Energy 
Reliability.

    For the reasons set forth in the preamble, the Department of Energy 
is proposing to amend chapter II of title 10 of the Code of Federal 
Regulations by revising part 900 to read as set forth below:

PART 900--COORDINATION OF FEDERAL AUTHORIZATIONS FOR ELECTRIC 
TRANSMISSION FACILITIES

Sec.
900.1 Purpose.
900.2 Applicability.
900.3 Definitions.
900.4 Pre-application procedures.
900.5 Notification of requests for Federal authorizations for 
Qualifying Project and requests for DOE assistance in the Federal 
authorization process.
900.6 Selection of lead agency and coordination of permitting and 
related environmental reviews.
900.7 Lead agency responsibilities.
900.8 Cooperating agencies' responsibilities.
900.9 DOE responsibilities.
900.10 Prompt and binding intermediate milestones and ultimate 
deadlines under the Federal Power Act.
900.11 Deadlines for all permit decisions and related environmental 
reviews pursuant to the Federal Power Act.

    Authority:  16 U.S.C. 824p(h).


Sec.  900.1  Purpose.

    This part provides a process for the timely coordination of Federal 
authorization requests for proposed transmission facilities pursuant to 
section 216(h) of the FPA (16 U.S.C. 824p(h)). These regulations 
provide a framework for cooperation and for the compilation of uniform 
environmental review document in order to coordinate all permitting and 
environmental reviews required under Federal law to site qualified 
electric transmission facilities. They also provide an opportunity for 
non-Federal entities to coordinate their own separate non-Federal 
permitting and environmental reviews with that of the Federal 
permitting entities.


Sec.  900.2  Applicability.

    (a) The regulations under this part apply to Qualifying Projects 
for which Federal authorizations are required to site transmission line 
projects that are generally 230,000 volts (230 kV) and above and their 
attendant facilities, or regionally or nationally significant 
transmission line and their attendant facilities. Such transmission 
line projects must require more than one Federal authorization, and all 
or part of a proposed transmission line must cross jurisdictions 
administered by more than one participating agency. Such transmission 
line projects must also be used for the transmission of electric energy 
in interstate commerce for sale at wholesale. The provisions of Part 
900 would also apply to Other Projects at the discretion of the 
Director. Other Projects must also be transmission facilities that are 
used for the transmission of electric energy in interstate commerce for 
the sale of electric energy at wholesale, but do not need to meet the 
230 kV or above qualification, be regionally of nationally significant, 
or cross jurisdictions administered by more than one Participating 
Agency.
    (b) This part does not apply to Federal authorizations for electric 
transmission facilities located within the Electric Reliability Council 
of Texas interconnection.
    (c) This part does not apply to transmission lines that cross the 
U.S. international border, Federal submerged lands, national marine 
sanctuaries, or the facilities constructed by Federal Power Marketing 
Administrations. However, section 216(h) does not affect any 
requirements of U.S. environmental laws, and this exemption does not 
waive any requirements to obtain necessary Federal authorizations for 
electric transmission facilities.
    (d) This part does not apply to Federal authorizations in regard to 
transmission facilities where an application has been submitted to the 
Federal Energy Regulatory Commission (FERC) for issuance of a permit 
for construction or modification of transmission facilities under 18 
CFR 50.6 or where pre-filing procedures have been initiated with FERC 
under 18 CFR 50.5.

[[Page 77440]]

    (e) DOE, in exercising its responsibilities under this part, will 
consult regularly with FERC, electric reliability organizations, and 
transmission organizations approved by FERC.


Sec.  900.3  Definitions.

    As used in this part:
    Applicant means a person or entity who is seeking Federal 
authorization to construct electric transmission facilities.
    Consolidated administrative record means the information assembled 
and maintained by the lead agency and utilized by the cooperating 
agencies/permitting entities as the basis for their Federal 
authorization decisions along with the final decision made by each 
permitting entity.
    Cooperating agencies are those agencies that have jurisdiction by 
law regarding a proposed project, or that otherwise have special 
expertise with respect to environmental and other issues pertinent to 
Federal agency reviews. States, tribes and local governments with 
relevant expertise or authority, or that are potentially affected by or 
interested in a project, can also be cooperating agencies.
    Director means the Director of Permitting and Siting within DOE's 
Office of Electricity Delivery and Energy Reliability.
    DOE means the United States Department of Energy.
    Federal authorization means any authorization required under 
Federal law to site a transmission facility, including permits, special 
use authorizations, certifications, opinions, or other approvals. This 
term includes authorizations issued by Federal and non-Federal entities 
that are responsible for issuing authorizations under Federal law for a 
transmission facility.
    FPA means the Federal Power Act (16 U.S.C. 791-828c).
    Indian tribe has the same meaning as provided in 25 U.S.C. 450b(e).
    Lead Agency means the Federal agency, selected as provided for in 
these rules, to coordinate Federal authorizations and related Federal 
agency reviews pursuant to this part.
    NEPA means the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.)
    Non-Federal entities mean local government agencies with relevant 
expertise or authority that are potentially affected by or are 
responsible for conducting any separate permitting and environmental 
reviews of the proposed facilities.
    Other projects mean transmission facilities that are not qualifying 
projects. Other projects must be used for the transmission of electric 
energy in interstate commerce for the sale of electric energy at 
wholesale, but do not need to meet the 230 kV or above qualification, 
be regionally or nationally significant, or cross jurisdictions 
administered by more than one Participating Agency.
    Participating agency means a signatory of the MOU executed on 
October 23, 2009. The participating agencies are DOE, the Departments 
of Defense, Agriculture (USDA), the Interior (DOI), and Commerce, FERC, 
the Environmental Protection Agency, the Council on Environmental 
Quality, and the Advisory Council on Historic Preservation.
    Permitting entity means any Federal or non-Federal entity that is 
responsible for making a determination on issuing an authorization 
required to site an electric transmission line.
    Qualifying Projects are high voltage transmission line projects 
(generally 230 kV or above) and their attendant facilities, or 
otherwise regionally or nationally significant transmission lines and 
their attendant facilities, in which all or part of a proposed 
transmission line crosses jurisdictions administered by more than one 
participating agency and is used for the transmission of electric 
energy in interstate commerce for sale at wholesale. This definition is 
consistent with FERC Order No. 689 (regulations regarding application 
for permits to site electric transmission facilities issued under 
section 216 of the FPA) and may include intrastate facilities.
    Single environmental review document means the material that the 
cooperating agencies develop--with the lead agency being primarily 
responsible--to fulfill Federal obligations for preparing NEPA 
compliance documents and all other analyses required to comply with all 
environmental, tribal consultation, cultural and historic preservation 
statutes and regulations under Federal law. This information shall be 
available to the applicant, all cooperating agencies, DOE, and all 
Indian tribes, multistate entities, and State agencies that have their 
own separate non-Federal permitting and environmental reviews.


Sec.  900.4  Pre-application procedures.

    (a) Pre-application mechanism:
    (1) An applicant, or prospective applicant, for a Federal 
authorization may request information from a permitting or potential 
permitting entity concerning the likelihood of approval for a potential 
facility and key issues of concern to the agency and public. The 
applicant or prospective applicant requesting information from a 
permitting or potential permitting entity shall notify the Director of 
the request to the entity.
    (2) Any request for information filed under this section shall 
specify the information sought from the permitting entity in sufficient 
detail for the permitting entity to provide the requested information.
    (3) Within 60 days of receipt of such a request for information, a 
permitting entity shall provide, to the extent permissible under 
existing law, information addressing the request to the applicant, or 
prospective applicant, and the Director.
    (4) The provision of such information does not constitute a 
commitment by the permitting entity to approve or disapprove any 
Federal authorization request.
    (b) Additional pre-application procedures:
    Permitting entities contacted by prospective applicants for Federal 
authorization to site electric transmission facilities will notify 
participating agencies of Qualifying Projects and facilitate a pre-
application meeting for prospective applicants and relevant Federal and 
state agencies and Tribes to communicate key issues of concern, explain 
applicable processes, outline data requirements and applicant 
submissions necessary to complete the required Federal agency reviews 
in a timely manner, and to establish schedules.


Sec.  900.5  Notification of requests for Federal authorizations for 
Qualifying Project and requests for DOE assistance in the Federal 
authorization process.

    (a) Qualifying Projects. When one or more permitting entities 
determine that a project may be a Qualifying Project, those entities 
will, within 10 days, notify DOE of that determination. The 
notification is to be made to the Director, Permitting and Siting, 
ATTN: Transmission Coordination, U.S. Department of Energy, OE-20, 
Office of Electricity Delivery and Energy Reliability, 1000 
Independence Avenue SW., Washington, DC 20585 or electronically to 
[email protected].
    (b) Other Projects. Persons seeking DOE assistance in the Federal 
authorization process for Other Projects shall file a request for 
coordination with the Director. The request shall contain:
    (1) The legal name of the requester; its principal place of 
business; whether the requester is an individual, partnership, 
corporation, or other entity; the State laws under which the requester 
is

[[Page 77441]]

organized or authorized; and the name, title, and mailing address of 
the person or persons to whom communications concerning the request for 
coordination are to be addressed;
    (2) A concise general description of the proposed transmission 
facility sufficient to explain its scope and purpose;
    (3) A list of all permitting entities from which Federal 
authorizations pertaining to the proposed transmission facility are 
needed, including the docket numbers of pending applications with 
permitting entities;
    (4) A list of non-Federal entities (i.e., state government 
agencies) that have their own separate non-Federal permitting and 
environmental reviews pertaining to the proposed transmission facility, 
including the docket numbers of relevant applications.
    (c) Written request. The written request for coordination may be 
filed by mail or hand delivery with the Director at 1000 Independence 
Avenue SW., Washington, DC 20585, or electronically in MS Word or PDF 
formats at [email protected]. Electronic filing is DOE's preferred 
method. If filing by hand or mail, DOE requests that an electronic copy 
be filed as well.


Sec.  900.6  Selection of lead agency and coordination of permitting 
and related environmental reviews.

    (a) Qualifying Projects. (1) As provided in paragraphs (a)(2) and 
(3) of this section, DOE will coordinate the selection of a Lead Agency 
responsible for compiling a unified environmental review document and 
consolidated administrative record for qualifying projects. The 
selection will recognize the agency with the most significant land 
management interests related to the qualifying project or the agency 
recommended by other cooperating agencies to be the lead agency. 
Determination of the lead agency for preparing NEPA documents shall be 
in compliance with regulations issued by the Council on Environmental 
Quality at 40 CFR part 1500 et seq.
    (2) For Qualifying Projects that cross DOI-administered lands 
(including trust or restricted Indian lands) or USDA-administered 
lands, DOI and USDA will consult and jointly determine within 20 days 
after determining that a proposal is a Qualifying Project:
    (i) Whether a sufficient land management interest exists to support 
their assumption of the lead agency role; and
    (ii) If so, which of the two agencies should assume that role. DOI 
and USDA will notify DOE of their determination in writing or 
electronically within 10 days of making the determination. Unless DOE 
in writing or electronically notifies DOI and USDA of its objection to 
such determination within two business days of the DOI/USDA 
notification, such determination is deemed accepted and final.
    (3) When the Lead Agency is not established pursuant to paragraph 
(a)(2) of this section, the cooperating agencies will consult and 
jointly determine a Lead Agency within 20 days after determining that a 
proposal is a Qualifying Project. No determination of an agency as a 
Lead Agency under this rule shall be made absent that agency's consent. 
The agencies will notify DOE of their determination in writing or 
electronically within 10 days of making the determination. Unless DOE 
in writing or electronically notifies those cooperating agencies of its 
objection within two business days of the cooperating agencies 
notification, such determination is deemed accepted and final.
    (b) Other Projects. For Other Projects, pursuant to Sec.  900.5(b), 
an applicant can file a request for coordination with the Director for 
assistance in the Federal authorization process, and the Director may 
provide assistance at the Director's discretion. If DOE decides to 
provide authorization assistance, DOE will work with the permitting 
entity to determine a Lead Agency.
    (c) Non-Federal entities that have their own separate non-Federal 
permitting and environmental reviews may elect to participate in the 
coordination process under this section, including becoming cooperating 
agencies.


Sec.  900.7  Lead agency responsibilities.

    (a) The Lead Agency will consult fully with the cooperating 
agencies throughout the Federal authorization review process to improve 
coordination, identify and obtain relevant data in a timely manner, set 
schedules, and identify and expeditiously resolve issues or concerns.
    (b) The Lead Agency will consult with DOE, the qualifying project 
applicant, other affected parties, and cooperating agencies to 
establish an efficient project schedule, including intermediate 
milestones and ultimate deadlines for the review of Federal 
authorization applications and decisions relating to proposed electric 
transmission facilities.
    (c) The Lead Agency will prepare a unified environmental review 
document for the Qualifying Project, incorporating, to the maximum 
extent practicable, a single environmental record on which all entities 
with authority to issue authorizations for a given project can base 
their decisions.
    (d) The Lead Agency will maintain a consolidated administrative 
record of the information assembled and utilized by the cooperating 
agencies as the basis for their decisions.
    (e) The Lead Agency will, to the extent practicable and consistent 
with Federal law, ensure that all project data are submitted and 
maintained in electronic geospatial formats or other generally-
accessible electronic forms (e.g., geographic information system data 
including metadata descriptions meeting Federal Geographic Data 
Committee standards); compile and make available the information 
assembled and utilized by the cooperating agencies; and, as 
appropriate, provide public access to the data by maintaining on the 
agency Web site information and links to the information available from 
all cooperating agencies.
    (f) The Lead Agency will establish any procedures necessary for it 
to coordinate the requirements of this part with other Federal and non-
Federal entities.
    (g) The Lead Agency will produce regular input to and updates of a 
DOE-maintained electronic project tracking system. The information 
provided by the lead agency will, as appropriate, be made available to 
the public as provided in Sec.  900.9(e).
    (h) The Lead Agency will inform cooperating agencies regarding new 
information and necessary changes related to the project.
    (i) To the extent practicable and consistent with Federal law, the 
Lead Agency may establish a procedure to consolidate costs recoverable 
from the applicant to reimburse Federal agencies for costs incurred, 
issue bills for collection, and disburse funds to the appropriate 
Federal agencies.


Sec.  900.8  Cooperating agencies' responsibilities.

    (a) Cooperating agencies will submit reviews in accordance with the 
timeline established by the Lead Agency after consultation with 
cooperating agencies.
    (b) Cooperating agencies will provide personnel and/or expertise to 
the Lead Agency as agreed to by the cooperating agencies.
    (c) Cooperating agencies will be responsible for the provision of 
any information necessary to complete application reviews and decisions 
in accordance with deadlines established by the Lead Agency after 
consultation with cooperating agencies.
    (d) Each cooperating agency will assign a lead point of contact for 
coordination and consultation with the

[[Page 77442]]

Lead Agency during the pendency of Federal authorization requests.
    (e) Each cooperating agency will share information and data with 
each other and, to the maximum extent practicable, submit information 
in a common standard for electronic recordkeeping and analysis.
    (f) Cooperating agencies will ensure that any issues or problems 
relating to a Federal authorization request or process are brought to 
the immediate attention of the lead agency and DOE, and will 
participate fully in seeking and implementing resolutions to the issues 
or problems.
    (g) Cooperating Agencies may enter into an interagency agreement 
with the Lead Agency to allow for the recovery of appropriate costs. 
The Cooperating Agencies would be responsible for providing the Lead 
Agency an accounting of billable costs as a result of the application 
and permitting process.


Sec.  900.9  DOE responsibilities.

    (a) DOE will lead the overall coordination of activities related to 
implementation of section 216(h) of the FPA and pursuant to this part.
    (b) DOE will coordinate the selection of the Lead Agency as 
specified in this part.
    (c) DOE will provide expertise to assist the Lead Agency as 
required and ensure adherence to applicable schedules.
    (d) DOE will provide assistance to the Lead Agency in establishing 
the schedule and will approve any deviation in the established project 
schedule.
    (e) DOE will develop a public Web site to serve as a central source 
of information about section 216(h) of the FPA in general and links to 
the information available from participating and cooperating agencies, 
as well as schedule information about the specific transmission 
projects. The Web site can be accessed via www.oe.energy.gov/fed_transmission.htm.


Sec.  900.10  Prompt and binding intermediate milestones and ultimate 
deadlines under the Federal Power Act.

    Pursuant to section 216(h)(4)(A) of the Federal Power Act:
    (a) Permitting entities will work diligently to comply with the 
agreed-upon timeline, to the extent consistent with applicable law. To 
ensure adherence to applicable schedules, DOE will provide assistance 
to the lead agency in establishing the schedule and will approve any 
deviation in the established project schedule.
    (b) No later than 30 days prior to any intermediate or ultimate 
deadline established under this part, any permitting entity subject to 
a deadline shall inform the lead agency, DOE, and the applicant if the 
deadline will not, or is not likely to, be met.
    (c) The Lead Agency, in consultation with DOE and the permitting 
entity, may, for good cause shown, extend an interim or ultimate 
deadline.


Sec.  900.11  Deadlines for all permit decisions and related 
environmental reviews pursuant to the Federal Power Act.

    Pursuant to section 216(h)(4)(B) of the Federal Power Act:
    (a) All permit decisions and related environmental reviews under 
all applicable Federal laws shall be completed in accordance with the 
following timelines, except as provided in Sec.  900.11(b):
    (1) When a categorical exclusion under NEPA is invoked, or an 
environmental assessment (EA) finding of no significant impact (FONSI) 
is determined to be the appropriate level of review under NEPA, within 
one year of the categorical exclusion determination or the publication 
of a FONSI ; or
    (2) When an environmental impact statement (EIS) is required 
pursuant to NEPA, one year and 30 days after the close of the public 
comment period for a Draft EIS.
    (b) If a requirement in another provision of Federal law does not 
permit a final decision on the Federal authorization request under the 
schedule established in paragraph (a) of this section, the permitting 
entity shall inform the lead agency, DOE, cooperating agencies, the 
applicant, and other interested parties, cite the provision of Federal 
law that prevents the final decision on the Federal authorization 
request from being issued under the schedule established in paragraph 
(a) of this section, and provide a date when the final decision on the 
authorization request can be issued in compliance with Federal law.

[FR Doc. 2011-31759 Filed 12-12-11; 8:45 am]
BILLING CODE 6450-01-P