[Federal Register Volume 81, Number 188 (Wednesday, September 28, 2016)]
[Rules and Regulations]
[Pages 66500-66513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23285]


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DEPARTMENT OF ENERGY

10 CFR Part 900

RIN 1901-AB36


Coordination of Federal Authorizations for Electric Transmission 
Facilities

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

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) is amending its regulations for 
the timely coordination of Federal authorizations for proposed 
interstate electric transmission facilities pursuant to the Federal 
Power Act (FPA). The amendments are intended to improve the pre-
application procedures and result in more efficient processing of 
applications.

DATES: This final rule will become effective November 28, 2016. This 
rule contains a collection of information requirement subject to OMB 
approval under the Paperwork Reduction Act. DOE has submitted the 
collection to OMB for approval and will provide separate notice in the 
Federal Register of OMB approval and the OMB control number.

FOR FURTHER INFORMATION CONTACT: Julie A. Smith, Ph.D., U.S. Department 
of Energy, Office of Electricity Delivery and Energy Reliability, 
Mailstop OE-20, Room 8G-017, 1000 Independence Avenue SW., Washington, 
DC 20585; 202-586-7668; or [email protected].

SUPPLEMENTARY INFORMATION: 
    Acronyms and Abbreviations. A number of acronyms and abbreviations 
are used in this preamble. While this may not be an exhaustive list, to 
ease the reading of this preamble and for reference purposes, the 
following terms, acronyms, and abbreviations are defined as follows:

CEQ Council on Environmental Quality
CFR Code of Federal Regulations
DOE Department of Energy
EIS Environmental Impact Statement
E.O. Executive Order
EPAct Energy Policy Act of 2005
FERC Federal Energy Regulatory Commission
FPA Federal Power Act
FR Federal Register
IIP Integrated Interagency Pre-Application
MOU Memorandum of Understanding
NEPA National Environmental Policy Act
OMB Office of Management and Budget
PM Presidential Memorandum
PMA Federal Power Marketing Administration
RFI Request for Information
RRTT Rapid Response Team for Transmission
RTO Regional Transmission Operators

I. Background
II. Discussion of Final Rule and Responses to Comment
    A. General
    B. Applicability
    C. Definitions
    D. Integrated Interagency Pre-Application (IIP) Process
    E. Selection of NEPA Lead Agency
    F. IIP Process Administrative File
III. Regulatory Review
    A. Executive Orders 12866 and 13563
    B. National Environmental Policy Act

[[Page 66501]]

    C. Regulatory Flexibility Act
    D. Paperwork Reduction Act
    E. Unfunded Mandates Reform Act of 1995
    F. Treasury and General Government Appropriations Act, 1999
    G. Executive Order 13132
    H. Executive Order 12988
    I. Treasury and General Government Appropriations Act, 2001
    J. Executive Order 13211
    K. Congressional Review Act
IV. Approval of the Office of the Secretary

I. Background

    In this final rule, DOE establishes a simplified Integrated 
Interagency Pre-application (IIP) process for the siting of electric 
transmission facilities, as described in Section II. This process is 
established pursuant to DOE's authority under section 216(h) of the 
Federal Power Act (16 U.S.C. 791-828c) (FPA), which sets forth 
provisions relevant to the siting of interstate electric transmission 
facilities. section 216(h) of the FPA (16 U.S.C. 824p(h)), 
``Coordination of Federal Authorizations for Transmission Facilities,'' 
provides for DOE to coordinate all Federal authorizations and related 
environmental reviews needed for siting certain interstate electric 
transmission projects, including National Environmental Policy Act of 
1969 (NEPA) reviews. Specifically, section 216(h)(3) requires the 
Secretary, to the maximum extent practicable under Federal law, to 
coordinate the Federal authorization and review process with any Indian 
tribes, multi-state entities, and state agencies that have their own 
separate permitting and environmental reviews. Section 216(h)(4)(C) 
further requires that DOE establish an expeditious pre-application 
mechanism to allow project proponents to confer with Federal agencies 
involved, and for each such agency to communicate to the proponent any 
information needs relevant to a prospective application and key issues 
of concern to the agencies and public.
    On February 2, 2016, DOE published a notice of proposed rulemaking 
(NOPR) to amend its existing procedures to provide for this revised, 
simplified IIP Process for certain electric transmission facilities (81 
FR 5383). Publication of the NOPR began a 60-day public comment period 
that ended on April 4, 2016. On March 22, 2016, DOE conducted a public 
workshop to discuss the NOPR, which included a presentation describing 
the proposed rule and allowed for questions about and comments on the 
proposed rule by workshop participants. Comments on the proposed 
rulemaking were received from approximately 12 sources, including 
electric industry groups, other organizations, and individuals. The 
NOPR, IIP public workshop presentation and transcript, and any comments 
that DOE received are available on the DOE Web site at http://energy.gov/oe/services/electricity-policy-coordination-and-implementation/transmission-planning/improving.
    For additional information on the legal authority for this final 
rule, as well as the Executive Orders and Presidential Memoranda this 
rule is intended to implement, please see the proposed IIP rule (81 FR 
5383; Feb. 2, 2016). The proposed rule also contains information on 
previous rulemaking and information gathering activities that DOE 
conducted pursuant to its authority under section 216(h) of the FPA, as 
well as information on the significant interagency coordination 
activities that preceded this final rule.

II. Discussion of Final Rule and Responses to Comment

    DOE has considered and evaluated the comments received during the 
public comment period and public workshop. In this section, DOE 
discusses comments received, provides DOE's responses to the comments, 
and describes any resulting changes to the proposal adopted in this 
final rule. Several commenters expressed overall support for DOE's 
efforts to develop an IIP Process, acknowledging the importance of this 
effort to improving transmission project planning and siting through 
early engagement, information sharing, and coordination of federal, 
tribal, state, and other permitting entities. Comments suggested that 
implementation of this rule should prove beneficial during pre-
application process, as well as provide good information and analysis 
for informing subsequent NEPA reviews. Specific elements of the 
proposed rulemaking for which many commenters expressed support 
include: The voluntary nature of the IIP Process for project 
proponents; a proposed process that is coordinated by a single agency; 
the simplified proposal for a two meeting IIP structure; development of 
IIP Process deliverables maintained by DOE as a part of an IIP Process 
administrative file; and DOE's required use of information technology, 
which is intended to reduce costs while increasing the likelihood of 
remote participation in IIP meetings and discussions by all potentially 
affected federal agency, tribal, and state and/or local agency 
representatives.
    Commenters did express continued concern that while this final rule 
is a positive move toward realizing transmission line permitting 
efficiencies, much more is needed to address challenges in siting 
infrastructure development and coordination of Federal regulatory 
authorities and related review processes. Commenters urged DOE to take 
the lead in developing a systemic, legislative overhaul of the Federal 
environmental review procedures that lead to lengthy permitting times 
for important transmission infrastructure that, in their view, 
necessitated this rulemaking. Commenters also contended that the 
existing authority afforded to DOE to lead transmission permitting 
efforts under section 216(h) extends to post-application activities, 
such as NEPA reviews; that this rule should put a mechanism in place 
for Federal entities to recover costs associated with participating in 
a pre-application processes like the IIP Process; and, that this final 
rule should provide a mechanism for enforcing Federal entity adherence 
to post-application Federal permitting timelines. In this rule, DOE 
implements only section 216(h)(4)(C) of the FPA, which requires DOE 
establish an expeditious pre-application mechanism for siting 
transmission line projects. As a result, these comments are outside the 
scope of this final rule, and DOE does not address these comments in 
this final rulemaking. All other comments are addressed as appropriate 
in sections II.A. through II.F.

A. General

    10 CFR 900.1 states the purpose of the regulations, which is to 
provide a process for the timely coordination of Federal authorizations 
for proposed electric transmission facilities pursuant to section 
216(h) of the FPA (16 U.S.C. 824p(h)), including the development of an 
early pre-application process in support of this coordination and the 
selection of a NEPA lead agency. This final rule provides a framework 
for DOE to coordinate and facilitate early cooperation and exchange of 
environmental information required to site qualified electric 
transmission facilities. This early cooperation and information sharing 
promotes understanding of all permitting requirements and information 
needs to support agency decision making enabling applicants to prepare 
more robust applications for submission to relevant Federal, Tribal or 
State/local permitting agencies. Applications prepared through the IIP 
Process are expected to better inform post-application regulatory 
review and consultation processes, such as those under NEPA, the 
Endangered Species

[[Page 66502]]

Act, and the National Historic Preservation Act.
    The activities that comprise the IIP Process in this final rule 
occur prior to an applicant filing a request for authorization with 
Federal permitting agencies. The IIP Process is intended for a project 
proponent who has identified potential study corridors and/or potential 
routes within an established project area for a qualifying project. In 
DOE's experience, the summary-level project and environmental 
background information and supporting data, including discussion of the 
project proponent stakeholder outreach activities, requested as a part 
of the initiation request as described in Sec.  900.4 of this final 
rule, is typically under development or available at this stage of 
project development.
    Commenters expressed concerns that the IIP Process would be 
counterproductive or duplicative of the information developed for and 
provided to Federal entities in support of an application and 
subsequent NEPA review. Some commenters pointed to the amount of time 
needed to prepare the IIP Initiation Meeting Request and asked DOE to 
explain how this pre-application process supports review activities 
under NEPA.
    Pre-application activities, such as those provided for in this 
final rule, can be incorporated into a NEPA review process and 
resultant NEPA document in a variety of ways. For example, Federal 
entities should incorporate information gained from any pre-application 
activities into their public notices initiating NEPA reviews and 
information about the project. In addition, identification of any 
issues during the pre-application is expected to inform and be shared 
in scoping meetings and other public meetings that are part of the NEPA 
process. Information shared through the IIP Process and documented in 
the Final IIP Resources Report and IIP Meeting Summaries, as described 
in Sec.  900.4 of this final rule, can be included as part of the 
background information for developing the proposed action under NEPA, 
and would also aid in the development of alternatives and be reflected 
in the alternatives section of the NEPA document, either as part of the 
alternatives considered but eliminated from further analysis, or as an 
alternative that is given detailed consideration in the NEPA document.
    IIP Process deliverables such as the IIP Final Resources Report or 
an IIP Meeting Summary, and the information contained therein, as well 
as the supporting information or data maintained by DOE as a part of 
the IIP Process administrative file should be incorporated by the NEPA 
Lead Agency or a cooperating agency under NEPA in a subsequent NEPA 
document that supports an application requesting Federal authorizations 
for transmission lines. The IIP Process administrative file as defined 
in Sec.  900.6 of this final rule would contain IIP Process 
deliverables that could be referenced directly in NEPA documents post-
application. DOE agrees with commenters to the NOPR that the Department 
should work with CEQ to develop guidance for Federal entities in their 
implementation of this final rule, specifically focusing on how to use 
the IIP Process deliverables to inform a post-application environmental 
review process.
    A commenter asked if a prospective applicant, or project proponent, 
would need to submit application(s) to relevant state(s) responsible 
for siting transmission lines within their boundaries before submitting 
its request for initiation of the IIP Process to DOE. Under this final 
rule, a project proponent may submit an initiation request to DOE 
before, at the same time as, or after submitting applications for 
authorizations by relevant states. DOE developed the IIP Process in 
this final rule to promote flexibility for project proponents with 
regard to timing of filing all applications for siting authorizations 
necessary for siting a proposed transmission line project. The IIP 
Process will notify and provide an opportunity for non-Federal agencies 
(tribal, state, or local governments) to engage in early planning and 
coordination of separate non-Federal permitting and environmental 
reviews with that of the Federal permitting agencies.
    DOE also received requests during the public comment period and 
workshop for clarification about the interaction of this final rule 
with provisions of the Fixing America's Surface Transportation (FAST) 
Act (Pub. L. No: 114-94). Passed by Congress in December 2015, the FAST 
Act contains provisions related to improving environmental review and 
permitting of infrastructure projects, including but not limited to, 
transmission infrastructure. For example, Title XLI of the FAST Act 
creates a new interagency entity--the Federal Permitting Improvement 
Council--to oversee interagency Federal infrastructure project 
permitting and review processes, establishes new procedures to 
standardize interagency consultation and coordination practices, 
addresses infrastructure project delivery process, and adds tracking of 
environmental review and permitting milestones. The activities 
comprising the IIP Process described in this final rule would inform 
the development of more robust applications for transmission 
infrastructure projects that could be considered for and benefit from 
the environmental review and permitting improvement provisions of Title 
XLI of the FAST Act.\1\
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    \1\ Title XLI of the Fast Act (section 41001(6)(B)(i)) defines 
the term ``covered project'' as any activity in the United States 
that requires authorization or environmental review by a Federal 
agency involving construction of infrastructure for renewable or 
conventional energy production, electricity transmission, surface 
transportation, aviation, ports and waterways, water resource 
projects, broadband, pipelines, manufacturing, or any other sector 
as determined by a majority vote of the Council that: (1) Is subject 
to NEPA; (2) is likely to require a total investment of more than 
$200,000,000; and, (3) does not qualify for abbreviated 
authorization or environmental review processes under any applicable 
law. A covered project may also be one that is subject to NEPA and 
the size and complexity of which, in the opinion of the Federal 
Permitting Improvement Council, make the project likely to benefit 
from enhanced oversight and coordination, including a project likely 
to require: (1) Authorization from or environmental review involving 
more than two Federal agencies; or (2) the preparation of an 
environmental impact statement under NEPA.
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B. Applicability

    Section 900.2 of the final rule explains when the provisions of 
part 900 would apply to the coordination of Federal authorizations. The 
provisions of part 900, which are consistent with DOE's prior 
regulations and the 2009 MOU (for additional background on the MOU, 
please refer to the proposed rule (81 FR 5383, Feb. 2, 2016)), will 
apply to qualifying projects, and will also apply to Other Projects at 
the discretion of the Assistant Secretary of DOE's Office of 
Electricity Delivery and Energy Reliability (OE-1). Both types of 
projects must be for transmission facilities 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 Federal entity or MOU signatory agency.
    Commenters on the NOPR encouraged DOE to apply its coordination of 
Federal authorizations to transmission line project proposals that 
would be a part of a ``bulk electric system,'' as defined in FERC Order 
No. 773,\2\ to include all facilities operated at or above 100 kV under 
the definition of ``Other Projects.'' DOE clarifies that the definition 
of ``Other Projects'' in Sec.  900.3 of this final rule would include 
transmission projects defined by FERC as a part of a bulk electric 
power system assistance.
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    \2\ Revisions to Electric Reliability Organization Definition of 
Bulk Electric System and Rules of Procedure, Order No. 773, 141 FERC 
] 61,236 (December 20, 2012).

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[[Page 66503]]

    DOE emphasizes that there will be no coordination role for DOE for 
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 and, in Order No. 689,\3\ FERC adopted regulations 
setting forth the procedures it will follow in such circumstances.
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    \3\ Department of Energy Delegation Order No. 00-004-00A, Sec.  
1.22, issued May 16, 2006.
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    This part does not apply to transmission lines that cross the U.S. 
international border, Federal submerged lands, national marine 
sanctuaries, marine national monuments, or facilities constructed by 
Federal Power Marketing Administrations (PMAs).\4\ Section 216(h) does 
not affect any requirements of U.S. environmental laws, and in the 
above mentioned cases, does not waive any requirements to obtain 
necessary Federal authorizations for electric transmission facilities.
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    \4\ DOE does not consider applications to the PMAs for 
transmission interconnections to be Federal authorization requests 
within the meaning of section 216(h).
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C. Definitions

    Section 900.3 defines terms for this part. DOE removed the 
definition of the term ``Stakeholder Outreach Plan'' from the list of 
defined terms as it is not a term that is used in this final rule.

D. Integrated Interagency Pre-Application (IIP) Process

    Section 900.4 provides the procedures and information requirements 
of the IIP Process. This section sets forth a framework for 
implementing the IIP Process, provisions for how DOE would fulfill its 
section 216(h) Lead Coordinating Agency role as defined in Sec.  900.2 
of this final rule, provisions describing expected outcomes of the IIP 
Initial Meeting and IIP Close-Out Meeting, and provisions describing 
the nature and purpose of products generated during the IIP Process 
(e.g., Final IIP Resources Report).
    For proponents of qualifying projects or Other Projects, 
participation in the IIP Process is voluntary. A project proponent 
initiates the IIP Process by submitting an initiation request as 
described in Sec.  900.4 of this final rule. A project proponent may 
elect to request initiation of the IIP Process for a qualifying project 
or other project as defined in Sec.  900.3. The timing of the 
initiation request is determined by the project proponent. A project 
proponent electing to utilize the IIP Process must submit Initial and 
Close-Out meeting requests to DOE and actively participate in initial 
and close-out meetings coordinated by DOE to complete the IIP Process. 
Completion of the IIP Process as proposed in this Final rule is 
expected to assist the project proponent in determining the likelihood 
that the project proponent would efficiently obtain permits necessary 
to construct a proposed project in the competitive, regional 
transmission planning processes.
    The project proponent would be expected, among other things, to 
provide the project-related and environmental information required as 
part of the initiation request to DOE. DOE must determine that adequate 
information has been provided by the project proponent consistent with 
Sec.  900.4 before DOE will initiate its coordination function under 
this part.\5\
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    \5\ The specific information requested as a part of section 
216(h) process initiation is listed in the regulatory language in 
Sec.  900.4(a)-(d). DOE will determine that the initiation request 
is adequate based on the requested list of summary information (that 
comprises the ``initiation request'') in Sec.  900.4(a)-(d).
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    Information requested as part of the initiation request in this 
proposed rule retains many of the requirements contained in Sec.  900.5 
``Request for coordination'' of the existing section 216(h) regulation 
(73 FR 54456; September 19 2008), and expands on some of those elements 
based on RRTT agency experience and information received in response to 
the August 2013 RFI (78 FR 53436). DOE will also consider electronic 
access to a checklist and an IIP Process timeline, as suggested by 
commenters. These elements would make process determinations and IIP 
Process deliverables more clear. DOE may also consider providing 
publicly-available resources in a central electronic repository, as 
currently provided for in Sec.  900.6(b) of the existing 
regulations.\6\
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    \6\ Electronic tools currently exist that may serve as a 
resource for the information required as a part of the IIP Process. 
For example, the Regulatory and Permitting Information Desktop 
(RAPID) Toolkit is an online tool that streamlines siting and 
permitting transmission lines in the West. The RAPID Toolkit offers 
a single location for agencies, developers, and industry 
stakeholders to work together on electric energy transmission 
regulatory processes by using a wiki environment to collaborate on 
regulatory processes, permit guidance, regulations, contacts, and 
other relevant information. The RAPID Toolkit can be accessed at 
http://en.openei.org/wiki/RAPID.
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    Comments received on the NOPR also expressed concern that the 
information requested to satisfy the initiation request represents a 
substantial level of effort and involves preparation time that would be 
better served by starting NEPA processes (e.g., early scoping) before 
applications for Federal authorizations are filed with Federal 
entities. As indicated previously, NEPA environmental review and 
process requirements are not triggered until an application for Federal 
authorization is filed and accepted by the recipient permitting Federal 
entity. The IIP Process would occur prior to submission of an 
application. Use of the IIP Process is voluntary, and DOE expects that 
a project proponent requesting DOE coordination assistance has made the 
calculation that the request, including active participation and 
preparation of information constituting an IIP initiation request, is 
in the best interests of the project proponent.
    Another commenter was critical of the requirements of the 
initiation request related to the Early Identification of Project 
Issues, suggesting that they are duplicative of public scoping under 
NEPA. The Project Issues summary-level information would be informed by 
a project proponent's public and stakeholder outreach activities that 
typically occur during project planning and inform the potential study 
corridors or potential routes that would be described in the Summary of 
the qualifying project portion of the IIP Process Initiation request. 
DOE does not expect that a separate public participation plan would be 
developed for and specific to the IIP Process nor does the initiation 
request as described in Sec.  900.4 of this final rule mandate the 
development of such a plan. Rather, the final rule requires that a 
project proponent would provide a concise description of how a project 
proponent coordinates stakeholder interface, communications, and 
involvement during its own project planning and development efforts to 
establish potential study corridors or potential routes for a 
qualifying project.
    DOE will notify and request participation by all Federal entities 
in the IIP Process that have a potential authorization or consultation 
for a qualifying project after DOE has reviewed and determined that an

[[Page 66504]]

initiation request meets the informational requirements of Sec.  
900.4(a) through (d). All Federal entities notified by DOE as having a 
potential authorization or consultation required for the siting of a 
qualifying project will be expected to participate in the Initial 
Meeting and the Close Out Meeting, unless the notified agency clarifies 
in writing to DOE within fifteen (15) calendar days of notification 
that they do not have any involvement or have minimal involvement, 
along with the supporting rationale used by the notified agency for 
their non- or minimal involvement.\7\ (DOE notes that this notification 
was required within seven (7) days in the NOPR, but has determined that 
seven days may not be adequate and so lengthened the time period to 15 
days for this final rule.) Several comments on the NOPR suggested that 
the IIP Process would not be effective in minimizing inefficiencies of 
multiple agency environmental review and permitting processes if 
Federal entities and Non-Federal entities cannot be required to 
participate fully in the IIP Process. This final rule is issued 
pursuant to Section 216(h)(4)(C) of the FPA, which requires DOE 
establish an expeditious pre-application mechanism for siting 
transmission line projects. While this provision authorizes DOE to 
coordinate pre-application activities among agencies involved in an 
authorization or permit of a proposed transmission line project, it 
does not authorize DOE to enforce participation by any Federal entity 
or non-Federal entity in the IIP Process. Rather, this final rule 
strongly encourages and establishes a structure by which DOE expects 
full and timely participation by Federal entities and non-Federal 
entities through timely notification, and use of electronic 
collaboration tools, like the use of teleconferencing and electronic 
collaborative tools, which are intended to support remote, lower-cost 
participation as described in this final rule.
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    \7\ Provided, however, that a Federal entity whose permitting 
authority for the construction or modification of electric 
transmission facilities is limited to those facilities for which an 
application is filed under section 216(b) of the Federal Power Act 
may participate at its sole discretion.
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    DOE will schedule IIP meetings no less than thirty (30) calendar 
days from each other and only after Federal entities are given notice 
of the need for their participation in the IIP Process. The 
notification described applies to both Initiation and Close-Out of the 
IIP Process, in response to the project proponent's request for such 
meetings.
    The list of Federal entities notified by DOE following its review 
of the initiation request as having a potential authorization or 
consultation required for the siting of a Qualified Project may be 
revised as necessary during the IIP Process based on information 
provided by the project proponent, a Federal entity, and otherwise 
publicly-available information. DOE will oversee the IIP Process and 
coordinate the involvement of the Federal entities as described in 
Sec.  900.4. DOE will provide Federal entities and Non-Federal entities 
access to all information received from the project proponent as a part 
of an initiation request determined by DOE to meet the information 
requirements of this part in Sec.  900.4, which will be coordinated 
through the use of electronic collaborative tools, specifically the 
Office of Management and Budget's (OMB's) MAX electronic system 
(https://max.omb.gov/maxportal) throughout an IIP Process for a 
qualifying project.
    In-person attendance at IIP Process meetings by each Federal entity 
will depend on the availability of resources or the authority to 
recover costs from project proponents. Currently, certain Federal 
entities may recover costs only after an application has been 
submitted, and some Federal entities lack cost recovery authority 
altogether. Even in instances where cost recovery may be available, 
each Federal agency will make its own determination regarding its 
participation and use of resources. Each Federal agency with concerns 
regarding their level of participation in the IIP Process meetings will 
provide its rationale to DOE in writing when or if a determination is 
made that it may not be an expeditious use of staff time and funds to 
attend all or some meetings. To the extent allowed by law, Federal 
entities may seek cost recovery from the project proponents during the 
IIP Process. DOE will provide an opportunity for Federal and Non-
Federal entities to participate in IIP meetings by using 
teleconferencing and webinars.
    Coordinating the preparation of the Final IIP Resources Report 
document prepared by DOE and related administrative file will 
facilitate more efficient preparation of a single environmental review 
document that all agencies should strive to utilize to inform their 
relevant decision making. The Final IIP Resources Report is 
purposefully designed in terms of format and substance to be consistent 
with provisions for early application of NEPA and the consideration of 
applicant proposals in: (1) Council on Environmental Quality (CEQ) 
regulations implementing NEPA (40 CFR parts 1500 through 1508); (2) CEQ 
guidance related to early consultation or engagement of Federal 
agencies with prospective applicants; and (3) NEPA's Forty Most Asked 
Questions (46 FR 18026; March 23, 1981, as amended).\8\ For example, 
the format and substance of the Final IIP Resources Report could be 
similar to an ``early corporate environmental assessment'' or typical 
applicant generated environmental study. CEQ explains that provisions 
to promote the early application of NEPA, including by encouraging 
private parties to initiate environmental studies early and encouraging 
pre-application consultation between private parties and federal 
agencies ``are intended to encourage and enable private and other non-
federal entities to build environmental considerations into their own 
planning processes in a way that facilitates the application of NEPA 
and avoids delay.'' \9\ Comments on the NOPR highlight the importance 
of the Final IIP Resources Report and its use by a NEPA Lead Agency in 
informing the post-application environmental review process (e.g., 
informing scoping) and resultant NEPA document (e.g., alternatives 
development or incorporation by reference). DOE acknowledges this 
comment, and notes that, as discussed previously in this preamble, DOE 
will coordinate its guidance efforts with CEQ to best integrate the 
information contained in the Final IIP Resources Report into post-
application environmental review(s).
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    \8\ CEQ, NEPA's Forty Most Asked Questions (46 FR 18026; March 
23, 1981, as amended).
    \9\ Id.
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    The Final IIP Resources Report will be included by DOE, along with 
all other support information, datasets, maps, figures, etc. collected 
as part of the IIP Process in an IIP Process administrative file that 
would be provided to the NEPA Lead Agency to inform their environmental 
reviews once an application is filed. This information can, and should, 
also be used by other agencies on related decision making. DOE will 
maintain the IIP Process administrative file for the duration of the 
IIP Process and after the IIP Close out Meeting has been convened.

E. Selection of NEPA Lead Agency

    Section 900.5 provides a mechanism for the identification and 
selection of a potential NEPA Lead Agency responsible for meeting 
Federal environmental review requirements \10\ for permitting 
interstate transmission

[[Page 66505]]

lines across multiple Federal jurisdictions once applications are filed 
with permitting agencies. This section incorporates the terms and 
mechanisms provided for identification and determination of NEPA Lead 
Agency for transmission facilities proposed for siting on majority 
Federal lands as set forth in the 2009 MOU and in accordance with CEQ's 
NEPA regulations. DOE provided clarifying changes to the Sec.  900.5 
provisions of this final rule, including allowing for agencies to 
notify DOE of the potential lead agency within 30 calendar days. DOE 
has determined that more time was needed for agencies to consider this 
designation and notify DOE of the determination.
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    \10\ Each participating Federal entity is responsible for 
meeting its own agency-specific requirements.
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F. IIP Process Administrative File

    Section 900.6 defines the contents of a consolidated IIP Process 
administrative file intended to document IIP Process-related 
information. This new section replaces Sec.  900.6 of the existing 
Section 216(h) regulations (73 FR 54456). This section also describes 
the process by which this file will be maintained by DOE as Lead 
section 216(h) Agency in coordination with the Federal entities for the 
duration of the IIP Process. DOE will coordinate its guidance efforts 
with CEQ to appropriately integrate the information contained in the 
IIP Process Administrative File into post-application environmental 
review(s) and related agency decision records.

III. Regulatory Review

A. Executive Orders 12866 and 13563

    This 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.
    DOE has also reviewed this regulation pursuant to Executive Order 
13563, issued on January 18, 2011. (76 FR 3281, Jan. 21, 2011) E.O. 
13563 is supplemental to and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, agencies are 
required by Executive Order 13563 to: (1) Propose or adopt a regulation 
only upon a reasoned determination that its benefits justify its costs 
(recognizing that some benefits and costs are difficult to quantify); 
(2) tailor regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives, taking into account, 
among other things, and to the extent practicable, the costs of 
cumulative regulations; (3) select, in choosing among alternative 
regulatory approaches, those approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity); (4) to the 
extent feasible, specify performance objectives, rather than specifying 
the behavior or manner of compliance that regulated entities must 
adopt; and (5) identify and assess available alternatives to direct 
regulation, including providing economic incentives to encourage the 
desired behavior, such as user fees or marketable permits, or providing 
information upon which choices can be made by the public.
    DOE concludes that this final rule is consistent with these 
principles. Specifically, this final rule sets forth voluntary 
procedures for DOE coordination of Federal authorizations for the 
siting of interstate electric transmission facilities. Therefore, any 
additional costs associated with the implementation of the rule will 
primarily impact Federal implementing agencies. However, as described 
in section III.C., because the rule seeks to streamline the IIP 
process, additional costs to Federal Agencies may actually be minimized 
or costs may be reduced. As discussed below, DOE will attempt to 
characterize the effect of this regulation on Federal Agencies as part 
of its retrospective review efforts. Additionally actions taken by this 
rule to coordinate information and agency communication before 
applications for Federal authorizations are submitted to Federal 
agencies for review and consideration may help reduce application 
review and decision-making timelines thereby potentially benefiting 
applicants as well as the Federal government. Because use of the IIP 
Process is voluntary, DOE further expects that the project proponent 
requesting assistance has made the calculation that the request was in 
the best interests of the project proponent. The request would also 
help transmission developers determine the likelihood that they would 
successfully obtain permits, which is necessary to make their proposed 
project successful in the competitive, regional transmission planning 
processes. As part of its semi-annual retrospective review plan or 
other performance tracking efforts, DOE will (1) peridocially review 
the efficacy of the IIP process, including an analysis of how the 
revised process under this rulemaking has: (a) Improved times to permit 
approval; (b) streamlined overall process performance, and (c) impacted 
costs to the Federal government; (2) share the results with the public; 
and (3) seek and respond to comments from the public, including 
applicants and other federal agencies on how the process may be 
improved.

B. National Environmental Policy Act

    DOE has determined that promulgation of these regulations fall into 
a class of actions that does not individually or cumulatively have a 
significant impact on the human environment as set forth under DOE's 
regulations implementing the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.). Specifically, this rulemaking is covered 
under the Categorical Exclusion found in the DOE's National 
Environmental Policy Act regulations at paragraph A6 of appendix A to 
subpart D, 10 CFR part 1021, which applies to Rulemakings that are 
strictly procedural. Accordingly, neither an environmental assessment 
nor an environmental impact statement is required.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made its 
procedures and policies available on the Office of General Counsel's 
Web site: http://www.gc.doe.gov.
    DOE has reviewed this final rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. This final rule sets forth simplified or revised 
procedures for DOE coordination of Federal authorizations for the 
siting of interstate electric transmission facilities. As a result, the 
rule directly impacts Federal agencies and not small entities. In those 
cases where a project proponent requests DOE assistance for a project

[[Page 66506]]

that is not a qualifying project, DOE expects that the provisions of 
this final rule, if adopted, would not affect the substantive interests 
of such project proponents, including any project proponents that are 
small entities. DOE expects actions taken under the provisions to 
coordinate information and agency communication before applications for 
Federal authorizations are submitted to Federal agencies for review and 
consideration would help reduce application review and decision-making 
timelines. Because use of the IIP Process set forth in this final rule 
is voluntary, DOE further expects that the project proponent requesting 
assistance has made the calculation that the request was in the best 
interests of the project proponent. The request would also help 
facilitate transmission developers with determining the likelihood that 
they would successfully obtain permits, which is necessary to make 
their proposed project successful in the competitive, regional 
transmission planning processes. On the basis of the foregoing, DOE 
certifies that this final 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. Paperwork Reduction Act

    The rule contains information collection requirements subject to 
review and approval by OMB pursuant to the Paperwork Reduction Act of 
1995 (44 U.S.C. 3501 et seq.) and the procedures implementing that Act, 
5 CFR 1320.1 et seq. This requirement has been submitted to OMB for 
approval. Public reporting burden for providing information during the 
pre-application process is estimated to average twenty-five (25) hours 
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. The pre-application burden estimate also 
includes time necessary to share and discuss information during pre-
application meetings.
    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. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires Federal agencies to examine closely the impacts of regulatory 
actions on tribal, state, and local governments. Subsection 101(5) of 
title I of that law defines a Federal intergovernmental mandate to 
include any regulation that would impose upon tribal, state, or local 
governments an enforceable duty, except a condition of Federal 
assistance or a duty arising from participating in a voluntary Federal 
program. Title II of that law requires each Federal agency to assess 
the effects of Federal regulatory actions on tribal, state, and local 
governments, in the aggregate, or to the private sector, other than to 
the extent such actions merely incorporate requirements specifically 
set forth in a statute. Section 202 of that title requires a Federal 
agency to perform a detailed assessment of the anticipated costs and 
benefits of any rule that includes a Federal mandate which may result 
in costs to tribal, state, or local governments, or to the private 
sector, of $100 million or more in any one year (adjusted annually for 
inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title 
requires each agency that proposes a rule containing a significant 
Federal intergovernmental mandate to develop an effective process for 
obtaining meaningful and timely input from elected officers of tribal, 
state, and local governments. 2 U.S.C. 1534.
    This final rule would revise procedures for an Integrated 
Interagency Pre-application process by which transmission developers, 
Federal, state, local agencies and tribes may coordinate early either 
in person or via teleconference/web conference and share information 
electronically. DOE has determined that the final rule would not result 
in the expenditure by tribal, state, and local governments in the 
aggregate, or by the private sector, of $100 million or more in any one 
year. Accordingly, no assessment or analysis is required under the 
Unfunded Mandates Reform Act of 1995.

F. 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 final rule that may affect family well-
being. The final rule would not have any 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.

G. Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 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 rule and has 
determined that it would not preempt state law and would not have a 
substantial direct effect on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

H. 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 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any 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

[[Page 66507]]

them. DOE has completed the required review and determined that, to the 
extent permitted by law, the final rule meets the relevant standards of 
Executive Order 12988.

I. 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 disseminations 
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 (February 22, 2002), 
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). 
DOE has reviewed this rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

J. Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001) requires Federal agencies to prepare and submit to the 
OMB, a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation of a 
final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use. This regulatory 
action, which is intended to improve the pre-application procedures for 
certain transmission projects and therefore result in the more 
efficient processing of applications, would not have a significant 
adverse effect on the supply, distribution, or use of energy and is 
therefore not a significant energy action. Accordingly, DOE has not 
prepared a Statement of Energy Effects.

K. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule before its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

IV. Approval of the Office of the Secretary

    The Secretary of Energy has approved the publication of this final 
rule.

List of Subjects in 10 CFR Part 900

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

    Issued in Washington, DC, on September 16, 2016.
Patricia Hoffman,
Assistant Secretary, Office of Electricity Delivery and Energy 
Reliability.


0
For the reasons stated in the preamble, DOE revises part 900 of chapter 
II of title 10, Code of Federal Regulations 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 Integrated Interagency Pre-application (IIP) process.
900.5 Selection of NEPA lead agency.
900.6 IIP Process administrative file.

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


Sec.  900.1  Purpose.

    This part provides a process for the timely coordination of 
information needed for Federal authorizations for proposed electric 
transmission facilities pursuant to section 216(h) of the Federal Power 
Act (FPA) (16 U.S.C. 824p(h)). This part seeks to ensure electric 
transmission projects are consistent with the nation's environmental 
laws, including laws that protect endangered and threatened species, 
critical habitats and historic properties. This part provides a 
framework called the Integrated Interagency Pre-Application (IIP) 
Process by which the U.S. Department of Energy (DOE) cooperates with 
applicable Federal and Non-Federal entities for the purpose of early 
coordination and information sharing for permitting and environmental 
reviews required under Federal law to site qualified electric 
transmission facilities prior to submission of required Federal 
request(s). The IIP Process provides for timely and focused pre-
application meetings with key Federal and Non-Federal entities, as well 
as for early identification of potential siting constraints or 
opportunities, and seeks to promote thorough and consistent stakeholder 
outreach or engagement by a project proponent during its transmission 
line planning efforts. The IIP Process occurs before any application or 
request for authorization is submitted to Federal entities. This part 
improves the siting process by facilitating the early submission, 
compilation, and documentation of information needed for subsequent 
coordinated environmental review of a qualifying project or approved 
other project by Federal entities under the National Environmental 
Policy Act (NEPA) following the submission of an application or request 
for authorization. This part also provides an opportunity for Non-
Federal entities to coordinate their non-Federal permitting and 
environmental reviews with the reviews of the Federal entities.


Sec.  900.2  Applicability.

    (a) The regulations under this part apply to qualifying projects. 
At the discretion of the Assistant Secretary (OE-1) the provisions of 
part 900 may also apply to Other Projects.
    (b) Other Projects. (1) Persons seeking DOE assistance in the 
Federal authorization process for Other Projects must file a request 
for coordination with the OE-1. The request must contain:
    (i) The legal name of the requester; its principal place of 
business; whether the requester is an individual, partnership, 
corporation, or other entity; citations to the state laws under which 
the requester is 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;
    (ii) A concise general description of the proposed other project 
sufficient to explain its scope and purpose;
    (iii) A list of all potential Federal entities involved in the 
proposed Other Project; and
    (iv) A list of anticipated Non-Federal entities involved in the 
proposed Other Project, including any agency serial or docket numbers 
for pending applications.
    (2) Within thirty (30) calendar days of receiving this request, the 
OE-1, in consultation with the affected Federal entities with 
jurisdiction, will determine if the other project should be treated as 
a qualifying project under this part and will notify the project 
proponent of one of the following:
    (i) If accepted for processing under this rule, the project will be 
treated as a qualifying project and the project proponent must submit 
an initiation request as set forth under Sec.  900.5; or
    (ii) If not accepted for processing under this rule, the project 
proponent must follow the standard procedures of

[[Page 66508]]

Federal entities that will have jurisdiction over the project.
    (c) This part does not apply to Federal authorizations for electric 
transmission facilities wholly located within the Electric Reliability 
Council of Texas interconnection.
    (d) This part does not apply to electric transmission facilities in 
a DOE-designated National Interest Electric Transmission Corridor where 
a project proponent seeks a construction or modification permit from 
the Federal Energy Regulatory Commission (FERC) under section 216(b) of 
the Federal Power Act (16 U.S.C. 824p(b)).
    (e) This part does not affect any requirements of Federal law. 
Participation or non-participation in the IIP Process does not waive 
any requirements to obtain necessary Federal authorizations for 
electric transmission facilities. This part shall not alter or diminish 
any responsibilities of the Federal entities to consult under 
applicable law.
    (f) This part complements, and does not supplant, the Federal 
entities' pre-application procedures for a Federal authorization. 
Participation in the IIP Process does not guarantee issuance of any 
required Federal authorization for a proposed qualifying project or 
selection of the project proponent's proposed study corridors and 
proposed routes as a range of reasonable alternatives or the preferred 
alternative for NEPA purposes.
    (g) DOE, in exercising its responsibilities under this part, will 
communicate regularly with the FERC, electric reliability organizations 
and electric transmission organizations approved by FERC, other Federal 
entities, and project proponents. DOE will use information technologies 
to provide opportunities for Federal entities to participate remotely.
    (h) DOE, in exercising its responsibilities under this part, will 
to the maximum extent practicable and consistent with Federal law, 
coordinate the IIP Process with any Non-Federal entities. DOE will use 
information technologies to provide opportunities for Non-Federal 
entities to participate remotely.


Sec.  900.3  Definitions.

    As used in this part:
    Affected landowner means an owner of real property interests who is 
usually referenced in the most recent county or city tax records, and 
whose real property:
    (1) Is located within either 0.25 miles of a proposed study 
corridor or route of a qualifying project or at a minimum distance 
specified by state law, whichever is greater; or
    (2) Contains a residence within 3000 feet of a proposed 
construction work area for a qualifying project.
    DOE means the United States Department of Energy.
    Early identification of project issues refers to an early and open 
stakeholder participation process carried out by a project proponent as 
a part of its project development activities to identify potential 
environmental issues Federal and Non-Federal entities' may consider for 
further study, issues of concern to the affected public and 
stakeholders, and potential project alternatives.
    Federal authorization means any authorization required under 
Federal law to site an electric transmission facility, including 
permits, rights-of-way, special use authorizations, certifications, 
opinions, or other approvals. This term includes those authorizations 
that may involve determinations under Federal law by either Federal or 
Non-Federal entities.
    Federal entity means any Federal agency with jurisdictional 
interests that may have an effect on a proposed qualifying project, 
that is responsible for issuing a Federal authorization for the 
proposed qualifying project or attendant facilities, has relevant 
expertise with respect to environmental and other issues pertinent to 
or that are potentially affected by the proposed qualifying project or 
its attendant facilities, or provides funding for the proposed 
qualifying project or its attendant facilities. Federal entities 
include those with either permitting or non-permitting authority; for 
example, those entities with which consultation or review must be 
completed before a project may commence, such as the Department of 
Defense for an examination of military test, training or operational 
impacts.
    FPA means the Federal Power Act (16 U.S.C. 791 through 828c).
    IIP process administrative file means the information assembled and 
maintained by DOE as the Lead section 216(h) Agency. The IIP Process 
Administrative File will include the IIP Initiation Request, which 
includes a Summary of Qualifying Project, Affected Environmental 
Resources and Impacts Summary, associated Maps, Geospatial Information 
and Data (provided in electronic format), and a Summary of Early 
Identification of Project Issues. The IIP Process Administrative File 
will also include IIP Meeting Summaries, an IIP Resources Report, and 
other documents, including but not limited to maps, publicly-available 
data, and other supporting documentation submitted by the project 
proponent as part of the IIP Process that inform the Federal entities.
    IIP resources report means the resource summary information 
provided by the project proponent as a part of the IIP Process that 
meets the content requirements pursuant to Sec.  900.4 of this part. 
The IIP Resource Report contains the environmental information used by 
a project proponent to plan a qualifying project.
    Indian tribe has the same meaning as provided for in 25 U.S.C. 
450b(e).
    Lead 216(h) agency means the Department of Energy, which section 
216(h) of the FPA (16 U.S.C. 824p(h)) makes responsible for timely 
coordination of Federal authorization requests for proposed electric 
transmission facilities.
    MOU principals means the heads of each of the MOU signatory 
agencies.
    MOU signatory agency means a signatory of the Interagency MOU 
executed on October 23, 2009, entitled, ``Memorandum of Understanding 
among the United States (U.S.) Department of Agriculture (USDA), the 
Department of Commerce, Department of Defense (DoD), Department of 
Energy (DOE), Environmental Protection Agency (EPA), the Council on 
Environmental Quality (CEQ), the Federal Energy Regulatory Commission 
(FERC), the Advisory Council on Historic Preservation (ACHP), and 
Department of the Interior (DOI), regarding Coordination in Federal 
Agency Review of Electric Transmission Facilities on Federal Lands.''
    NEPA means the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.)
    NEPA lead agency means the Federal agency or agencies preparing or 
having primary responsibility for preparing an environmental impact 
statement or environmental assessment as defined in 40 CFR 1508.16 and 
in accordance with 40 CFR 1501.5(c).
    Non-federal entity means an Indian Tribe, multistate governmental 
entity, or state and local government agency with relevant expertise 
and/or jurisdiction within the project area, that is responsible for 
conducting permitting and environmental reviews of the proposed 
qualifying project or its attendant facilities, that has special 
expertise with respect to environmental and other issues pertinent to 
or that are potentially affected by the proposed qualifying project or 
its attendant facilities, or provides funding for the proposed 
qualifying project or its attendant facilities. Non-Federal entities 
may include those with either permitting or non-permitting authority, 
e.g., entities such as State Historic

[[Page 66509]]

Preservation Offices, with whom consultation must be completed in 
accordance with section 106 of the National Historic Preservation Act, 
54 U.S.C. 306108, before a project can commence.
    OE-1 means the Assistant Secretary for DOE's Office of Electricity 
Delivery and Energy Reliability.
    Other projects mean electric transmission facilities that are not 
qualifying projects. Other Projects may include facilities for the 
transmission of electric energy in interstate commerce for the sale of 
electric energy at wholesale that do not meet the 230 kV or above 
qualification, or are not otherwise identified as regionally or 
nationally significant with attendant facilities, in which all or part 
of a proposed transmission line--
    (1) Crosses jurisdictions administered by more than one Federal 
entity; or
    (2) Crosses jurisdictions administered by a Federal entity and is 
considered for Federal financial assistance from a Federal entity.
    Project area means the geographic area considered when the project 
proponent develops study corridors and then potential routes for 
environmental review and potential project siting as a part of the 
project proponent's planning process for a qualifying project. It is an 
area located between the two end points of the project (e.g., 
substations), including their immediate surroundings within at least 
one-mile of that area, as well as any proposed intermediate 
substations. The size of the project area should be sufficient to allow 
for the evaluation of various potential alternative routes with 
differing environmental, engineering, and regulatory constraints. The 
project area does not necessarily coincide with ``permit area,'' ``area 
of potential effect,'' ``action area,'' or other defined terms of art 
that are specific to types of regulatory review.
    Project proponent means a person or entity who initiates the IIP 
Process in anticipation of seeking Federal authorizations for a 
qualifying project or Other Project.
    Qualifying project means a non-marine high voltage electric 
transmission line (230 kV or above) and its attendant facilities, or 
other regionally or nationally significant non-marine electric 
transmission line and its attendant facilities, in which:
    (1) All or part of the proposed electric transmission line is used 
for the transmission of electric energy in interstate commerce for sale 
at wholesale, and
    (2) All or part of the proposed electric transmission line crosses 
jurisdictions administered by more than one Federal entity or crosses 
jurisdictions administered by a Federal entity and is considered for 
Federal financial assistance from a Federal entity. qualifying projects 
do not include those for which a project proponent seeks a construction 
or modification permit from the FERC for electric transmission 
facilities in a DOE-designated National Interest Electric Transmission 
Corridor under section 216(b) of the FPA (16 U.S.C. 824p(b)).
    Regional mitigation approach means an approach that applies the 
mitigation hierarchy (first seeking to avoid, then minimize impacts, 
then, when necessary, compensate for residual impacts) when developing 
mitigation measures for impacts to resources from qualifying projects 
at scales relevant to the resource, however narrow or broad, necessary 
to sustain, or otherwise achieve established goals for those resources. 
The approach identifies the needs and baseline conditions of targeted 
resources, potential impacts from the qualifying projects, cumulative 
impacts of past and likely projected disturbance to those resources, 
and future disturbance trends. The approach then uses such information 
to identify priorities for avoidance, minimization, and compensatory 
mitigation measures across that relevant area to provide the maximum 
benefit to the impacted resources.
    Regional mitigation strategies or plans mean documents developed 
through or external to the NEPA process that apply a Regional 
Mitigation Approach to identify appropriate mitigation measures in 
advance of potential impacts to resources from qualifying projects.
    Route means a linear area within which a qualifying project could 
be sited. It should be wide enough to allow minor adjustments in the 
alignment of the qualifying project so as to avoid sensitive features 
or to accommodate potential engineering constraints but narrow enough 
to allow detailed study.
    Stakeholder means any Non-Federal entity, any non-governmental 
organization, Affected Landowner, or other person potentially affected 
by a proposed qualifying project.
    Study corridor means a contiguous area (but not to exceed one-mile) 
in width within the project area where alternative routes may be 
considered for further study.


Sec.  900.4  Integrated Interagency Pre-application (IIP) process.

    (a) The IIP Process is intended for a project proponent who has 
identified potential study corridors and/or potential routes within an 
established project area and the proposed locations of any intermediate 
substations for a qualifying project. The IIP Process is also intended 
to accommodate qualifying projects that have been selected in a 
regional electric transmission plan for purposes of cost allocation or 
a similar process where an electric transmission plan has been 
identified and the permitting and siting phase must commence. While the 
IIP Process is optional, the early coordination provided by DOE between 
Federal entities, Non-Federal entities, and the project proponent 
ensures that the project proponent fully understands application and 
permitting requirements, including data potentially necessary to 
satisfy application requirements for all permitting entities. The two-
meeting structure of the IIP process also allows for early interaction 
between the project proponents, Federal entities, and Non-Federal 
entities in order to enhance early understanding by those having an 
authorization or consultation related to the qualifying project. The 
IIP process is expected to provide Federal entities and Non-Federal 
entities with a clear description of a qualifying project, the project 
proponent's siting process, and the environmental and community setting 
being considered by the project proponent for siting the transmission 
line, as well as facilitate the Early Identification of Project Issues.
    (b) A project proponent electing to utilize the IIP Process must 
submit an initiation request to DOE to start the IIP Process. The 
timing of the submission of the initiation request for IIP Process is 
determined by the project proponent. The initiation request must 
include, based on best available information, a Summary of qualifying 
project, Affected Environmental Resources and Impacts Summary, 
associated Maps, Geospatial Information, and Studies (provided in 
electronic format), and a Summary of Early Identification of Project 
Issues. The initiation request must adhere to the page limits 
established by this part.
    (c) Summary of the qualifying project is limited to a maximum 
length of ten (10) pages, single-spaced and must include:
    (1) A statement that the project proponent requests to use the IIP 
Process;
    (2) Primary contact information for the project proponent, 
including a primary email address;
    (3) The legal information for the project proponent: Legal name; 
principal place of business; whether the requester is an individual, 
partnership, corporation, or other entity; the state

[[Page 66510]]

laws under which the requester is organized or authorized; and if the 
project proponent resides or has its principal office outside the 
United States, documentation related to designation by irrevocable 
power of attorney of an agent residing within the United States;
    (4) A description of the project proponent's financial and 
technical capability to construct, operate, maintain, and decommission 
the qualifying project;
    (5) A statement of the project proponent's interests and 
objectives;
    (6) To the extent available, regional electric transmission 
planning documents, including status of regional reliability studies, 
regional congestion or other related studies where applicable, and 
interconnection requests;
    (7) A brief description of the evaluation criteria and methods used 
by the project proponent to identify and develop the potential study 
corridors or potential Routes for the proposed qualifying project;
    (8) A brief description of the proposed qualifying project, 
including endpoints, voltage, ownership, justification for the line, 
intermediate substations if applicable, and, to the extent known, any 
information about constraints or flexibility with respect to the 
qualifying project;
    (9) Project proponent's proposed schedule, including timeframe for 
filing necessary Federal and state applications, construction start 
date, and planned in-service date if the qualifying project receives 
needed Federal authorizations and approvals by Non-Federal entities; 
and
    (10) A list of potentially affected Federal and Non-Federal 
entities.
    (d) Affected Environmental Resources and Impacts Summary. The 
Affected Environmental Resources and Impacts Summary is limited to a 
maximum length of twenty (20), single-spaced pages, not including 
associated maps, and must include concise descriptions, based on 
existing, relevant, and reasonably-available information, of the known 
existing environment, and major site conditions in project area, 
including:
    (1) An overview of topographical and resource features that are 
relevant to the siting of electric transmission lines present;
    (2) Summary of known land uses, including Federal lands, Tribal 
lands, and state public lands of various types (e.g., parks and 
monuments), associated land ownership, where appropriate, and any land 
use restrictions;
    (3) Summary of known or potential adverse effects to cultural and 
historic resources;
    (4) Summary of known or potential conflicts with or adverse impacts 
on military activities;
    (5) Summary of known or potential impacts on the U.S. aviation 
system, including FAA restricted airspace;
    (6) Summary of known or potential impacts on the U.S. marine 
transportation system, including impacts on waterways under 
jurisdiction of the U.S. Coast Guard;
    (7) Summary of known information about Federal- and state-protected 
avian, aquatic, and terrestrial species, and critical habitat or 
otherwise protected habitat, that may be present, as well as other 
biological resources information that is necessary for an environmental 
review;
    (8) Summary of the aquatic habitats (to include estuarine 
environments, and water bodies, including wetlands, as well as any 
known river crossings and potential constraints caused by impacts to 
navigable waters of the United States considered for the qualifying 
project);
    (9) Summary of known information about the presence of low-income 
communities and minority populations that could be affected by the 
qualifying project;
    (10) Identification of existing or proposed qualifying project 
facilities or operations in the project area;
    (11) Summary of the proposed use of previously-disturbed lands, 
existing, agency-designated corridors, including but not limited to 
corridors designated under section 503 of the Federal Land Policy and 
Management Act and section 368 of the Energy Policy Act of 2005, 
transportation rights-of-way, and the feasibility for co-location of 
the qualifying project with existing facilities or location in existing 
corridors and transportation rights-of-way; and
    (12) Summary of potential avoidance, minimization, and conservation 
measures, such as compensatory mitigation (onsite and offsite), 
developed through the use of Regional Mitigation Approach or, where 
available, Regional Mitigation Strategies or Plans, and considered by 
the project proponent to reduce the potential impacts of the proposed 
qualifying project to resources warranting or requiring mitigation.
    (e) Maps, Geospatial Information, and Studies. Maps, Geopspatial 
Information and Studies in support of the information provided in the 
summary descriptions for the known existing environmental, cultural, 
and historic resources in the project area under paragraph (d) in this 
section must be included, and do not contribute to the overall page 
length of the IIP initiation request. Project proponents must provide 
maps as electronic data files that may be readily accessed by Federal 
entities and Non-Federal entities, including:
    (1) A map of the project area showing the locations of potential 
study corridors or potential routes;
    (2) Detailed maps that accurately show information supporting 
summaries of the known existing environmental resources within the 
potential study corridors or potential routes;
    (3) Electronic access to existing data or studies relevant to the 
summary information provided as part of paragraphs (a) through (d) of 
this section; and
    (4) Citations identifying sources, data, and analyses used to 
develop the IIP Process initiation request materials.
    (f) Summary of Early Identification of Project Issues. The Summary 
of Early Identification of Project Issues must not exceed ten (10), 
single-spaced pages in length and is intended to provide a summary of 
stakeholder outreach or interactions conducted for the qualifying 
project prior to submission of the initiation request and to inform the 
development of issues and project alternatives for study in an 
environmental review document. The Summary of Early Identification of 
Project Issues must also:
    (1) Discuss the specific tools and actions used by the project 
proponent to facilitate stakeholder communications and public 
information, including an existing, current project proponent Web site 
for the proposed qualifying project, where available, and a readily-
accessible, easily-identifiable, single point of contact for the 
project proponent;
    (2) Identify how and when meetings on the location of potential 
study corridors or potential routes have been and would be publicized 
prior to the submission of applications for Federal authorization, as 
well as where and when those meetings were held and how many more 
meetings may be planned during the IIP Process;
    (3) Identify known stakeholders and how stakeholders are 
identified;
    (4) Briefly explain how the project proponent responds to requests 
for information from stakeholders, as well as records stakeholder 
requests, information received, and project proponent responses to 
stakeholders;
    (5) Provide the type of location (for example, libraries, community 
reading rooms, or city halls) in each county potentially affected by 
the proposed

[[Page 66511]]

qualifying project, where the project proponent has provided publicly-
available copies of documents and materials related to the proposed 
qualifying project;
    (6) Describe the evaluation criteria being used by the project 
proponent to identify and develop the potential study corridors or 
potential routes and that are presented by the project proponent to 
stakeholders during its project planning outreach efforts prior to 
submission of applications for Federal authorizations or non-Federal 
permits or authorizations;
    (7) Provide information collected as a result of the project 
proponent's stakeholder outreach efforts; and
    (8) Include a summary of issues identified, differing project 
alternative Corridors or routes, and revisions to routes developed as a 
result of issues identified by stakeholders during the project 
proponent's stakeholder outreach efforts for the qualifying project.
    (g) Within fifteen (15) calendar days of receiving the initiation 
request, DOE shall notify by email all Federal entities and Non-Federal 
entities with an authorization potentially necessary to site the 
qualifying project that:
    (1) Based on its initial review of information submitted by the 
project proponent in response to requirements in paragraphs (a) through 
(f) of this section, DOE has identified the contacted Federal entities 
or Non-Federal entities as potentially having an authorization or 
consultation responsibility or other relevant expertise related to the 
qualifying project;
    (2) Federal and Non-Federal entities notified by DOE should 
participate in the IIP Process for the qualifying project with DOE's 
rationale for that determination provided; and
    (3) Federal and Non-Federal entities notified by DOE will provide 
DOE with a name and information for a point of contact, and any initial 
questions or concerns, including supporting rationale, about their 
level of participation in the IIP Process based on DOE's justification 
in writing to DOE within fifteen (15) calendar days of receiving DOE's 
notification.
    (h) Within thirty (30) calendar days of receiving the initiation 
request, DOE shall notify the project proponent that:
    (1) The initiation request meets the requirements in paragraphs (a) 
through (f) of this section, including whether the project constitutes 
a qualifying project; or
    (2) The initiation request does not meet the requirements in 
paragraphs (a) through (f) in this section. DOE will provide the 
reasons for that finding and a description of how the project proponent 
may, if applicable, address any deficiencies through supplementation of 
the information contained in the initiation request so that DOE may re-
consider its determination.
    (i) DOE shall provide Federal and Non-Federal entities with access 
to an electronic copy of the initiation request and associated maps, 
geospatial data, and studies that meet the requirements in paragraphs 
(a) through (f) of this section, at the same time that DOE provides 
notice to the project proponent.
    (j) IIP Initial Meeting. DOE, in consultation with the identified 
Federal entities, shall convene the IIP Initial Meeting with the 
project proponent and all Federal entities and Non-Federal entities 
notified by DOE as having an authorization or consultation related to 
the qualifying project as soon as practicable and no later than forty-
five (45) calendar days after notifying the project proponent and 
Federal and Non-Federal entities that the initiation request meets the 
requirements in paragraphs (a) through (f) of this section. The Initial 
Meeting shall be convened in the area or region where the proposed 
qualifying project is located. Federal and Non-Federal entities shall 
have at least thirty (30) calendar days to review the information 
provided by the project proponent as part of the initiation request 
prior to the meeting. Federal entities identified by DOE as having a 
Federal authorization related to the qualifying project are expected to 
participate in the Initial Meeting. DOE also shall invite Non-Federal 
entities identified by DOE as having an authorization or consultation 
related to the qualifying project to participate in the Initial 
Meeting. During the Initial Meeting:
    (1) DOE and the Federal entities shall discuss the IIP Process and 
any cost recovery requirements, where applicable, with the project 
proponent;
    (2) The project proponent shall describe the proposed qualifying 
project and the contents of its initiation request; and
    (3) The Federal entities shall, to the extent possible and based on 
agency expertise and experience, review the information provided by the 
project proponent, and publicly-available information, and 
preliminarily identify the following and other reasonable criteria for 
adding, deleting, or modifying preliminary Routes from further 
consideration within the identified study corridors, including:
    (i) Potential environmental, visual, historic, cultural, economic, 
social, or health effects or harm based on the potential project or 
proposed siting, and anticipated constraints;
    (ii) Potential cultural resources and historic properties of 
concern;
    (iii) Areas under special protection by Federal statute, or other 
Federal entity or Non-Federal entity decision that could potentially 
increase the time needed for project evaluation and potentially 
foreclose approval of siting a transmission line route through such 
areas. Such areas may include, but are not limited to, properties or 
sites which may be of traditional or cultural importance to Indian 
Tribe(s), National Scenic and Historic Trails, National Landscape 
Conservation system units managed by the Bureau of Land Management 
(BLM), National Wildlife Refuges, units of the National Park System, 
national marine sanctuaries, or marine national monuments;
    (iv) Opportunities to site routes through designated corridors, 
previously disturbed lands, and lands with existing infrastructure as a 
means of potentially reducing impacts and known conflicts as well as 
the time needed for affected Federal land managers to evaluate an 
application for a Federal authorization if the route is sited through 
such areas (e.g., co-location with existing infrastructure or location 
on previously disturbed lands or in energy corridors designated by the 
DOI or USDA under Section 503 of the Federal Land Policy and Management 
Act or Section 368 of the Energy Policy Act of 2005, an existing right-
of-way, or a utility corridor identified in a land management plan);
    (A) Potential constraints caused by impacts on military test, 
training, and operational missions, including impacts on installations, 
ranges, and airspace;
    (B) Potential constraints caused by impacts on the United States' 
aviation system;
    (C) Potential constraints caused by impacts to navigable waters of 
the United States;
    (D) Potential avoidance, minimization, and conservation measures, 
such as compensatory mitigation (onsite and offsite), developed through 
the use of a Regional Mitigation Approach or, where available, Regional 
Mitigation Strategies or Plans to reduce the potential impact of the 
proposed qualifying project to resources requiring mitigation; and
    (E) Based on available information provided by the project 
proponent, biological (including threatened, endangered, or otherwise 
protected avian, aquatic, and terrestrial species and aquatic 
habitats), visual, cultural, historic, and other surveys and studies

[[Page 66512]]

that may be required for preliminary proposed routes.
    (v) Such information and feedback to the project proponent does not 
constitute a commitment by Federal entities to approve or deny any 
Federal authorization request. Moreover, no agency will determine that 
the project proponent's proposed preliminary routes presented or 
discussed during the IIP Process constitute a range of reasonable 
alternatives for NEPA purposes or that the environmental information 
provided during the IIP Process would satisfy the entirety of 
information needs for purposes of compliance with NEPA or other 
applicable laws and regulations. The IIP Process does not limit agency 
discretion regarding NEPA review. Participating Non-Federal entities 
are encouraged to identify risks and benefits of siting the proposed 
qualifying project within the preliminary proposed routes.
    (vi) DOE shall record key issues, information gaps, and data needs 
identified by Federal and Non-Federal entities during the Initial 
Meeting, and shall convey a summary of the meeting discussions, key 
issues, and information gaps and requests to the project proponent, all 
Federal entities, and any Non-Federal entities that participate in the 
IIP Process in a draft Initial Meeting Summary within fifteen (15) 
calendar days after the meeting. Participating Federal entities and 
Non-Federal entities, and the project proponent will then have fifteen 
(15) calendar days following its receipt of the IIP Process Meeting 
Summary to review the IIP Process Meeting Summary and provide 
corrections to DOE for resolution in a final Initial Meeting Summary, 
as appropriate. Thirty (30) calendar days following the close of the 
15-day review period, DOE will incorporate the final Initial Meeting 
Summary into the IIP Process Administrative File for the qualifying 
project, and, at the same time, provide all Federal and Non-Federal 
entities and the project proponent an electronic copy of a final IIP 
Initial Meeting Summary.
    (k) IIP Close-Out Meeting Request. A project proponent electing to 
utilize the IIP Process pursuant to this section must submit a Close-
Out Meeting Request to DOE to complete the IIP Process. The timing of 
the submission of the Close-Out Meeting Request for the IIP Process is 
determined by the project proponent but may only be submitted no less 
than forty-five (45) calendar days following the Initial Meeting. The 
Close-Out Meeting Request shall include:
    (1) A statement that the project proponent is requesting the Close-
Out Meeting for the IIP Process;
    (2) A summary table of changes made to the qualifying project 
during the IIP Process, including potential environmental and community 
benefits from improved siting or design;
    (3) Maps of updates to potential proposed routes within study 
corridors, including the line, substations and other infrastructure, 
which include at least as much detail as required for the Initial 
Meeting described above and as modified in response to early 
stakeholder input and outreach and agency feedback documented as a part 
of the IIP Initial Meeting Summary;
    (4) An updated summary of all project-specific biological 
(including threatened, endangered or otherwise protected avian, 
aquatic, and terrestrial species, and aquatic habitats), visual, 
cultural, historic or other surveys sponsored by the project proponent;
    (5) If known, a schedule for completing upcoming field resource 
surveys;
    (6) An updated summary of all known or potential adverse impacts to 
natural resources;
    (7) An updated summary of any known or potential adverse effects to 
cultural and historic resources;
    (8) A conceptual plan for potential implementation and monitoring 
of mitigation measures, including avoidance, minimization, and 
conservation measures, such as compensatory mitigation (offsite and 
onsite), developed through the use of a Regional Mitigation Approach 
or, where available, Regional Mitigation Strategies or Plans to reduce 
the potential impact of the proposed qualifying project to resources 
warranting or requiring mitigation;
    (9) An estimated time of filing its requests for Federal 
authorizations for the proposed qualifying project; and
    (10) An estimated time of filing its requests for all other 
authorizations and consultations with Non-Federal entities.
    (l) Close-Out Meeting. The IIP Process Close-Out Meeting shall 
result in a description by Federal entities of the remaining issues of 
concern, identified information gaps or data needs, and potential 
issues or conflicts that could impact the time it will take affected 
Federal entities to process applications for Federal authorizations for 
the proposed qualifying project. The Non-Federal entities shall also be 
encouraged to provide a description of remaining issues of concern, 
information needs, and potential issues or conflicts. The IIP Process 
Close-Out Meeting will also result in the identification of a potential 
NEPA Lead Agency pursuant to Sec.  900.6 described.
    (1) Within fifteen (15) calendar days of receiving the Close-Out 
Meeting Request, DOE shall notify by email the appropriate POCs of all 
Federal entities and Non-Federal entities with a known or potential 
authorization necessary to site the qualifying project.
    (2) Within thirty (30) calendar days of receiving a Close-Out 
Meeting Request, DOE shall determine whether the Close-Out Meeting 
Request meets the requirements in paragraph (k) of this section and 
inform the project proponent of its acceptance, and provide Federal 
entities and Non-Federal entities with Close-Out Meeting Request 
materials, including map, geospatial data, and surveys in electronic 
format, via electronic means.
    (3) Within sixty (60) calendar days of making a determination that 
the Close-Out Meeting Request meets the requirements of this section, 
DOE shall convene the Close-Out Meeting in the same region or location 
as the Initial Meeting with the project proponent and all Federal 
entities. All Non-Federal entities participating in the IIP Process 
shall also be invited to attend. During the Close-Out Meeting:
    (i) The project proponent's updates to the siting process to date 
shall be discussed, including stakeholder outreach activities, 
resultant stakeholder input, and project proponent response to 
stakeholder input;
    (ii) Based on information provided by the project proponent to 
date, the Federal entities shall discuss key issues of concern and 
potential mitigation measures identified for the proposed qualifying 
project;
    (iii) Led by DOE, all Federal entities shall discuss statutory and 
regulatory standards that must be met to make decisions for Federal 
authorizations required for the proposed qualifying project;
    (iv) Led by DOE, all Federal entities shall describe the process 
and estimated time to complete for required Federal authorizations and, 
where possible, the anticipated cost (e.g., processing and monitoring 
fees and land use fees);
    (v) Led by DOE, all affected Federal entities shall describe their 
expectations for a complete application for a Federal authorization for 
the proposed qualifying project;
    (vi) After the close out meeting, DOE shall prepare a Final IIP 
Resources Report for inclusion in the IIP Process Administrative File. 
The Final IIP Resources Report provides a description of the proposed 
qualifying project, including stakeholder outreach activities and 
feedback, summary information on environmental resources, and potential 
impacts (with

[[Page 66513]]

electronic access to associated maps, geospatial data and/or survey 
data), potential issues, and identification of constraints by Federal 
entities and Non-Federal entities for the proposed qualifying project;
    (vii) DOE shall recommend that participating Federal entities use 
the Final IIP Resources Report to inform the NEPA process for the 
proposed qualifying project. For example, Federal entities could use 
the Final IIP Resources Report during scoping for an EIS and 
identifying potential routes, to explain why certain alternatives were 
eliminated from further consideration, and to preliminarily identify 
impacts, potential avoidance, minimization, and conservation measures, 
such as compensatory mitigation (onsite and offsite), developed through 
the use of a Regional Mitigation Approach or, where available, Regional 
Mitigation Strategies or Plans and considered by the project proponent 
to reduce the potential impacts of the proposed qualifying project to 
resources requiring mitigation; and
    (viii) All participating Federal and Non-Federal entities shall 
identify a preliminary schedule for authorizations for the proposed 
qualifying project contingent upon timely filing of applications and 
related materials by the project proponent.


Sec.  900.5  Selection of the NEPA lead agency.

    DOE, in consultation with the Federal entities, shall coordinate 
the selection of a potential NEPA Lead Agency responsible for preparing 
an environmental review document under NEPA for proposed qualifying 
projects. Determination and responsibilities of the NEPA Lead Agency 
for preparing the EIS shall be in compliance with applicable law, 
including the National Environmental Policy Act of 1969 and CEQ 
implementing regulations at 40 CFR part 1500, and each agency's 
respective NEPA implementing regulations and procedures. However:
    (a) For proposed qualifying projects that cross lands administered 
by both DOI and USDA, DOI and USDA shall consult and jointly determine 
within thirty (30) calendar days of receiving the initiation request 
information from DOE which Department has a greater land management 
interest in the proposed qualifying project and which Department should 
therefore assume the role of NEPA Lead Agency.
    (b) DOI and USDA shall notify DOE of their determination regarding 
the NEPA Lead Agency in writing within thirty (30) calendar days of 
making the determination.
    (c) Unless DOE notifies DOI and USDA in writing of its objection to 
that determination within ten (10) calendar days of the DOI/USDA 
notification, the determination shall be deemed accepted and final. In 
deciding whether to object to the determination, DOE shall consider the 
CEQ regulations pertaining to selection of the Lead Agency, including 
40 CFR 1501.5(c).
    (d) For proposed qualifying projects that do not cross lands 
administered by both DOI and USDA, DOE and the Federal entities that 
will likely constitute the cooperating agencies for an environmental 
review document under NEPA, shall consult and jointly recommend a 
potential NEPA Lead Agency within 45 calendar days of receiving an IIP 
Process Close-Out Meeting Request. If DOE and the Federal entities are 
unable to agree on a recommendation for a NEPA Lead Agency, the Federal 
entities shall request CEQ to make a final determination by the Close-
Out Meeting. No determination of a Federal entity as the potential NEPA 
Lead Agency under this part shall be made absent that Federal entity's 
consent.


Sec.  900.6  IIP Process administrative file.

    (a) When communicating with the project proponent during the IIP 
Process, Federal entities are expected to include DOE in all 
communications related to the IIP Process for the project proponent's 
proposed qualifying project.
    (b) DOE shall maintain all information, including documents and 
communications, it disseminates or receives from the project proponent, 
Federal entities, and Non-Federal entities during the IIP Process in an 
IIP Process Administrative File for future use in reviewing any 
applications for required Federal authorizations for the proposed 
qualifying project. DOE will process any requests for information from 
the public in accordance with Freedom of Information Act requirements. 
DOE will share the IIP Process Administrative File with the selected or 
potential NEPA Lead Agency.
    (c) DOE shall document the list of issues identified during the IIP 
Process for a proposed qualifying project and any updates to 
information provided as part of the Close-Out Meeting discussion in a 
Final IIP Resources Report for the IIP Process Administrative File.
    (d) Each Federal entity is strongly encouraged to maintain the 
documents and communications developed in the IIP Process subject to 
each Federal entity's administrative record policies and, as 
appropriate and applicable, those documents and communications should 
become part of that Federal entity's administrative record for granting 
or denying a Federal authorization for each qualifying project.

[FR Doc. 2016-23285 Filed 9-27-16; 8:45 am]
BILLING CODE 6450-01-P